THE PEOPLE v. EARL ARTHUR LEE

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. EARL ARTHUR LEE, Defendant and Appellant.

B213692

Decided: July 2, 2010

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, David C. Cook and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

After a joint jury trial with codefendants Calvin Dennis and Reyon Ingram, appellant Earl Arthur Lee was convicted of two counts of first degree murder (Pen.Code, § 187, subd. (a)),1 with special circumstance findings that he committed multiple murders, intentionally killed one of the victims by means of lying in wait, and intentionally killed the victims while he was an active participant in a criminal street gang. (§ 190.2, subd. (a)(3), (15), (22).)   The jury also concluded that a principal intentionally discharged a firearm and proximately caused great bodily injury or death and the offenses were committed for the benefit of a criminal street gang. (§§ 12022.53, subd. (e)(1), 186.22, subd. (b)(1).)   Appellant filed a motion for new trial, which was denied.   In a separate court trial, appellant was found to have suffered two prior serious felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).   He was sentenced to consecutive terms, each consisting of life without the possibility of parole plus 25 years to life.

He appeals, contending the court erred by:  (1) denying his motion to dismiss on speedy trial grounds;  (2) denying his Marsden 2 motion;  (3) denying his Wheeler 3 motion;  (4) admitting evidence of a prior gun possession;  and (5) denying his motion for new trial.   He also alleges:  (6) there is insufficient evidence to support the verdict;  and (7) cumulative error requires reversal.   We affirm the judgment.

STATEMENT OF FACTS

I. The Prosecution Case

On the evening of October 2, 2006, Najee Hasan went with his friend Derrick Kellum to pick up Kellum's sons, Octavious and Derrick Junior, and take them to Lawrence Bennett's house.   On the way there, Kellum called Dennis and told him he was going to Bennett's house.   According to Hasan, after Kellum arrived at the house, Dennis approached, threw Kellum against a car, and held a gun to him.   Someone dressed in white joined Dennis and the two beat Kellum and took his wallet.   Dennis and his companion bumped chests and yelled, “Front Hood.” 4

Derrick Junior, who was 11 years old at the time of trial, testified that his father was robbed by Dennis and Ingram in front of Bennett's house.   After the robbery, while Derrick Junior was in the car with his father and Octavious, he heard his father speaking angrily with someone on the cell phone and agreeing to meet with the person around the corner.   His father stopped and got out of the car.   Derrick Junior heard shots fired and saw his father fall against the car.   Derrick Junior saw Dennis standing next to where his father had been standing and observed Ingram shooting into the car.   Derrick Junior managed to escape and run to a friend's house.

When sheriff's deputies arrived at the scene of the shooting, the headlights of Kellum's car were on and the doors were open.   Kellum was found in the backseat of the vehicle and Octavious was lying outside on the driver's side.   Each had suffered fatal gunshot wounds.   Deputies found five bullet holes in the car and recovered eight expended cartridge casings and six bullets.   Forensic specialists were able to determine that at least two, and possibly three, different guns were used.

Glenn Jefferson testified that on the night of the shooting, Dennis, Ingram, and appellant came to his house.   He knew them by their monikers of Bay-Rob, Soulja Boy, and Payso, respectively.   Dennis asked to borrow the keys to Jefferson's mother's black Lincoln Navigator so that he could listen to music.   A few minutes later, Jefferson's mother told him that Dennis wanted to use her vehicle.   She did not want Dennis to take the Navigator, so she told Jefferson to drive the group wherever they wanted.   Jefferson left his house driving the Navigator with Dennis in the front seat and Ingram and appellant in the backseat.

Dennis asked Jefferson to drive down the street.   As Jefferson got to the corner of 134th Street and Compton Avenue, his three passengers jumped out of the vehicle.   He heard a voice coming through the speaker of Dennis's phone saying, “I just want my wallet back.”   Jefferson then heard a couple of gunshots.   Ingram ran back to the Navigator with a gun in his hand, opened the back door, and told Jefferson to wait for his homies.   Appellant got into the vehicle and Dennis followed about 10 seconds later.5

When the men returned to the house, appellant kept telling Dennis that he did not “know about this dude,” referring to Jefferson.   Inside the house, Jefferson saw appellant with a wallet and Dennis counting money.   Dennis said something to the effect of, “I know Soulja Boy, he did his thing.”

Jefferson admitted that, initially, he did not tell police what had happened on the night of the shooting, claiming he was afraid.   He knew Dennis, Ingram, and appellant were still on the streets and feared that if he said anything about their involvement his family would be harmed.   He stated he eventually told the police the truth because his mother convinced him that it was the right thing to do.   Nonetheless, he acknowledged that he lied at two preliminary hearings, again asserting he was afraid.   Jefferson professed he was in fear for his and his family's safety at the time of trial.

Jefferson acknowledged that he was arrested on unrelated charges while appellant's case was pending.   Jefferson said he pled guilty and accepted a three-year prison sentence.   He denied he was promised anything in exchange for his testimony.

Rita Glaspie testified that she was married to appellant 20 years earlier and had kept in contact with him.   In the latter part of 2006, they were speaking on the phone several times a day.   Around October 2, 2006, he called her and said he had something important to tell her.   She told him she was unable to carry on a conversation at that time due to the noise and promised to return his call.   She called appellant an hour later and she could hear voices in the background.   Appellant told her that he had been involved in a double homicide and had “killed a kid.”   He said he was with Bay-Rob, Soulja Boy, and one other person he did not name at the time of the killings.   Appellant stated the group was committing a robbery and the victim got shot while he was trying to intervene.   Appellant said he and his companions were in an S.U.V. She understood from appellant that the killings were not supposed to happen.  “It was just supposed to be a robbery,” but Bay-Rob shot the father and appellant shot the kid.   Appellant told Glaspie that “he was trying to turn this Buick into a Benz.” At the time, appellant owned a Buick LeSabre.   She heard someone talking in the background and appellant said “Bay-Rob, it's all right.   This my wife.   It's okay, she's cool.”   Appellant told Glaspie he was “on the run” and needed money.

Glaspie admitted that she had a prior felony conviction for a theft-related crime and had been relocated by the sheriff's department because of her involvement in appellant's case.   She received $5,000 and had her rent paid for two months.   She later acknowledged having a prior misdemeanor conviction for welfare fraud.   She had judgments against her and was in financial trouble.   She conceded that in September 2006, she had an argument with appellant because he was leaving a rehabilitation center and she did not want to support him.

Glaspie called Los Angeles County Sheriff's Detective Richard Green on October 16, 2006, and told him about the call from appellant.   She informed Green that appellant said he was “going to the death chamber.”

Detective Brian Richardson testified that he was a gang expert and knew that Dennis was a member of the Front Hood Crips.   The Front Hood Crips were engaged in selling narcotics and committing assaults, robberies, and murders.   Dennis had numerous tattoos identifying him as a member of the gang.

Sergeant Frederick Reynolds, another gang expert, testified that appellant was also a member of the Front Hood Crips and had numerous tattoos identifying himself as a member.   Reynolds stated that Kellum's robbery occurred in the gang's neighborhood and opined that the robbery and the murders were committed for the benefit of the gang.

After their arrest, appellant and Dennis were placed in a jail cell where a recording device was hidden.   The jury heard the tape of their conversation.   Appellant said he told police that he did not know Dennis.   Appellant expressed the view that the prosecution had no evidence.   He said, “They can't put nobody [on] that know ․” Apparently referring to Derrick Junior, who was then 10, Dennis said he believed that a witness had to be at least 13 to testify.   Dennis, who had been interviewed by police, claimed that investigators did not know appellant was at the scene.   The police believed that Ingram and Jefferson were present when Dennis shot the victim, took his wallet, and returned to the S.U.V. Appellant asked, “How do somebody know that, though?”   Dennis replied, “It had to be somebody that was there.   This is before they even catch Glen [referring to Jefferson].”   Appellant commented that there were only two witnesses to the shootings and neither would “be able to remember that clearly.”   He concluded, “Homey, that's how I know, homey, they don't got nothin'.   They goin' on hearsay.”

II. The Defense Case

Willie Brown testified that on October 2, 2006, he was in his house on Slater Street when he heard gunshots.   When the gunfire ended, he looked out his window and saw a vehicle.   He did not see anyone get into a car.   Brown was shown a photographic lineup containing six pictures.   He claimed he had never seen the lineup card before.   Brown denied putting his initials on the lineup card or circling a photograph on the card and telling police that the individual was the person he saw driving a black Navigator on the night of the murders.6  He acknowledged telling officers that he saw someone run to a black Navigator after the shooting.   He asserted he did not tell police that he recognized the vehicle.   Brown admitted giving police a clothing description of the man who ran to the Navigator, but insisted he did not identify someone named Soulja Boy (Ingram's moniker) as that person.   Brown claimed he did not know anyone in the courtroom.   Brown said he had concerns for his family's safety;  however, he denied he was in danger for testifying during the trial.

Detective Richard Green stated that he interviewed Brown on October 5, 2006.   He testified that Brown identified Jefferson as the driver of the black Navigator Brown saw at the scene of the shooting.

We briefly describe the evidence presented by codefendants.   Ingram offered the testimony of Davon Gilbeau, who said that at around 8:00 p.m. on the night of the shooting, Dennis got into an argument with Derrick Kellum at a liquor store.   Dennis had a gun in his waistband at the time.   Gilbeau told officers that Dennis said he was going to shoot somebody that night and lifted his shirt to show Kellum his gun.

Ingram testified and admitted being in the area where Kellum was shot.   He claimed Jefferson drove him, appellant, and Dennis to the location of 134th Place and Slater.   Jefferson stopped the Navigator and appellant and Dennis got out.   Ingram said he and Jefferson remained in the vehicle.   Ingram decided to step outside and as he did so, he heard gunshots.   He went back inside the Navigator.   First, appellant returned and then Dennis.   They got in the Navigator and Jefferson drove away.   Ingram asserted that appellant and Dennis discussed shooting the victims and warned Ingram not to say anything.

Dennis called a witness who said she was in the liquor store with Gilbeau, Dennis, and Kellum.   She said Kellum asked her if she wanted to get a drink.   After she declined, Dennis asked Kellum to buy him one.   Kellum stated he had no money.   As everyone left the store, Dennis said, “Everything [is] cool.”   The witness said Dennis did not threaten Kellum.

DISCUSSION

I. The Trial Court's Denial of Appellant's Motion to Dismiss

Appellant points out that his trial did not commence until almost two years after his arrest, and contends the trial court erred by granting multiple continuances over his objection and by denying his severance and dismissal motions.   He argues he was denied his statutory and constitutional right to a speedy trial.

Appellant was arrested in October 2006, released, then re-arrested in December 2006.   A preliminary hearing was held on February 15, 2007 for appellant only because he refused to waive time.   Codefendants waived time and their preliminary hearing took place at a later date.   As a result, their case was initially severed from appellant's.   Appellant was arraigned on the information on March 1, 2007.   Appellant's case was rejoined with codefendants on April 16, 2007.   Appellant again refused to waive time, and continued to do so at every subsequent hearing.   Trial was set for May 25, 2007.

At the May 8, 2007 pretrial, appellant's counsel indicated that he would be requesting a continuance on May 25 over his client's objection.   The prosecutor said he was having difficulty complying with discovery.   Counsel for Ingram and Dennis were granted a continuance and their clients waived time.   Over appellant's objection, the May 25 trial date was vacated and a pretrial conference was set for that date.

On June 14, 2007, appellant's counsel filed a motion to set aside the information for insufficient evidence and the court continued the trial date in order to consider that motion.   On July 3, the court denied the motion and continued trial to August 8, 2007.   Appellant was a “miss-out” on August 8 and the trial was continued to August 31, 2007 and then again to September 5, 2007.

On September 10, 2007, appellant's counsel noticed a pretrial discovery and Pitchess 7 motion for October 24, 2007.   The motion was filed on October 4. On October 4, the prosecutor announced that his office would be seeking the death penalty for Ingram and Dennis, but not appellant.   On October 24, the court granted appellant's Pitchess motion and conducted an in camera hearing the following day.

On November 30, 2007, the prosecutor and appellant's and Ingram's attorneys represented that they anticipated being ready for the January 24 trial date that had been previously set, but Dennis's attorney said he would not be.   On January 7, 2008, the court granted appellant's counsel's motion to continue, vacated the January 24 trial date, and set a new pretrial date of February 20, 2008.

Appellant was not present in court but was represented by counsel on February 20th.   Another pretrial was set for March 25, 2008.   On that date, appellant's counsel informed the court that the defense had received additional discovery that might raise issues relevant to the pending severance motion he had filed.   Counsel also stated that he thought he could be ready to try the case in July, but would attempt to accommodate codefendants' attorneys, who wanted to get the case started in June. The court set a June 16, 2008 trial date.

On May 22, 2008, appellant's counsel filed a motion to dismiss based on the violation of his client's right to a speedy trial.   On May 27, the court

heard oral argument on appellant's severance motion 8 and motion to dismiss.   The motions were denied.

Trial commenced on October 21, 2008.

At this juncture, we need to clarify the parameters of the issue before us.   Appellant claims that he was entitled to have his trial in April 2007 and that the October 2008 proceeding was “18 months past the time it should have taken place.”   He asserts he refused to waive time after April 2007, and the court should not have granted continuances at the request of the prosecution and codefendants after that date.   However, that is not the question at hand.

Many of the continuances were granted at appellant's counsel's behest or with his acquiescence.   Appellant's counsel was not ready to try the case in April 2007 or at any time during the remainder of that year.   As we have pointed out, as late as March 2008, counsel thought he might be ready to try the case in July 2008.   As evidenced by appellant's May 22, 2008 motion to dismiss, counsel first inferred that he was prepared to go to trial on the then set date of June 16, 2008.   As appellant does not challenge the court's findings of good cause to continue the matter when his attorney requested additional time to prepare, the issue is whether appellant's right to a speedy trial was violated due to the delay from June 16, 2008 to October 21, 2008, the date trial commenced.   After the date of June 16, it is clear that the continuances were due solely to the requests of codefendants.   Thus, the question, properly framed, is:  was there good cause to continue the trial after June 16 over appellant's objection?

Our Supreme Court recently analyzed the meaning of “good cause” as that term is used with reference to a trial court's decision to continue trial.   It noted that “a number of factors are relevant to a determination of good cause:  (1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay.”  (People v. Sutton (2010) 48 Cal.4th 533, 546 (Sutton ).)   The trial court “ ‘has broad discretion to determine whether good cause exists to grant a continuance of the trial’ [citation], and that, in reviewing a trial court's good-cause determination, an appellate court applies an ‘abuse of discretion’ standard.  [Citations.]”  (Ibid.)

Appellant argues that continuing a trial for the purpose of ensuring that all defendants are jointly tried does not constitute good cause.   While the court in Sutton acknowledged that prior case law suggested that was true, it disapproved those cases “to the extent they hold or suggest that the state interests served by a joint trial cannot constitute good cause under section 1382 to continue a codefendant's trial beyond the presumptive statutory deadline.”  (Sutton, supra, 48 Cal.4th at p. 562.) 9  It noted that “past decisions of this court make it clear that the substantial state interests served by a joint trial properly may support a finding of good cause to continue a codefendant's trial beyond the presumptive statutory period set forth in section 1382.  [Citations.]  And numerous Court of Appeal decisions properly have applied this general principle.  [Citations.]  Furthermore, the provisions of section 1050.1 also clearly establish that the state interest in permitting jointly charged defendants to be tried in a single trial generally constitutes good cause to continue a defendant's trial to enable that defendant to be tried with a codefendant whose trial properly has been continued to a date beyond the presumptive statutory deadline.”  (Id. at pp. 561-562.)

The court acknowledged that “past California decisions have held that a lengthy continuance of an objecting codefendant's trial to facilitate a joint trial is permissible only in instances in which the state interest in avoiding multiple trials is especially compelling-as when the trials are likely to be long and complex and impose considerable burdens on numerous witnesses․”  (Sutton, supra, 48 Cal.4th at pp. 559-560.)   We hold this case presents those compelling circumstances.

We find guidance from the case of Greenberger v. Superior Court (1990) 219 Cal.App.3d 487 (Greenberger ).   In that matter, a defendant and two codefendants were jointly charged with capital murder.   On December 4, 1989, the codefendants each moved for a lengthy continuance and described the extensive investigation that needed to be done.   Defendant Greenberger, who had waived time until January 8, 1990, insisted that her trial be held on that date.   The trial for the three defendants was set for July 23, 1990.   When the court denied Greenberger's motion to dismiss on January 16, she filed a petition seeking a writ of mandate directing the trial court to dismiss the case because she had not been brought to trial within the statutory period mandated by section 1382.  (Id. at p. 492.)

Noting that other cases had upheld delays of joint trials for as long as three months, it determined that it “must consider whether not just a delay, but a delay of six months is with good cause.”  (Greenberger, supra, 219 Cal.App.3d at p. 501.)   The court stated, “Although imprecise, the measure of good cause delay has guidelines.  Barker v. Wingo [ (1972) 407 U.S. 514] identified four such guidelines or factors:  ‘Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.’ ”  (Id. at p. 502, quoting Barker v. Wingo, supra, 407 U.S. at p. 530.)

The Greenberger court determined that the six-month delay had to be considered against the six-year murder investigation and the over 15-month period from the defendant's arrest and the January 8, 1990 trial date to which she had consented, the over two-month preliminary hearing, and the possibility of a trial lasting six months.   The court also pointed out that the defendants were charged with capital murder, the case was a complex one, codefendants' counsel requested additional time to prepare an adequate defense, multiple trials would pose a burden to the system and witnesses, and Greenberger could not establish prejudice.   It concluded the court did not abuse its discretion in granting the continuance and denied the writ petition.

Initially, we observe appellant does not discuss the factors that the trial court should have weighed in considering his dismissal and severance motions, with the exception of prejudice, which we discuss below.   Here, the four-month delay was not inordinate in light of the fact the prosecution was seeking the death penalty.   The reason for the delay was codefendant's counsel's need for additional time to adequately prepare a defense.   The charges were serious-robbery and murder.   The burden of separate trials on the system and the witnesses weighed in favor of a joint trial.   The prosecution called over 14 witnesses, including 11-year-old Derrick Junior, and, with the possible exception of Rita Glaspie, they would have faced the hardship, and especially in Derrick Junior's case, the psychological trauma of testifying more than once.

As to any prejudice caused by the delay, appellant asserts his defense was hampered by the loss of one witness, Lawrence Bennett.   We are not persuaded.   First, there is no indication that Bennett would have been available if the trial had been held earlier.   He was subpoenaed for the preliminary hearing and failed to appear.   Second, at best, Bennett would have offered testimony with respect to only the robbery, which took place in front of his house prior to the shooting.   He had nothing relevant to say in connection with the murders, which he did not witness.   Although appellant claims that Bennett would have testified that Dennis and Ingram robbed Kellum, he does not explain how this evidence would have undermined Jefferson's testimony that appellant was present at the murder scene, Glaspie's recital of appellant's admissions, or the impact of appellant's recorded statements to Dennis.

After weighing all of the factors set forth in Barker v. Wingo, supra, 407 U.S. 514, we conclude the trial court did not abuse its discretion in finding good cause to delay appellant's trial to permit him to be tried with codefendants.10

II. The Marsden Motions

On four occasions, appellant asked the court to remove appointed counsel.   He contends the court erred when it denied his first three requests and refused to hear his reasons with respect to the fourth.   We set forth the facts underlying each request.

On March 1, 2007, at his arraignment on the information, appellant informed the court that he was unhappy with counsel.   He complained that the investigator had performed no work on the case and his attorney failed to properly cross-examine a particular witness at the preliminary hearing.   Counsel explained that appellant did not want to cooperate with him or his investigator in their attempt to prepare for a possible penalty phase.   He stated appellant became extremely angry when the subject was broached.   Appellant did not think it was possible that he would lose at the guilt phase and felt that preparing for a possible penalty phase was a waste of time.   After the court advised appellant that any competent attorney had to prepare for all potential trial scenarios and that his attorney was doing everything he could to properly represent him, appellant stated, “Well, I will not be coming back into the courtroom with him.   And it will be a ruckus every time I come.”

On March 22, 2007, true to his word, appellant was removed from the courtroom for being disruptive.   After being returned, he told the court that he had read all of the police reports and could not understand “how [his] name came up in this murder case.”   He believed that his attorney was not working for him because he was not asking the right questions of the police or the district attorney.   Appellant complained that counsel had not visited him in three weeks and that he needed to know the trial strategy under consideration.   Appellant stated that he wanted a new lawyer or, in the alternative, to represent himself.   Counsel acknowledged that he had not visited appellant because he was hoping appellant would “cool down” after venting in court on March 1. He assured the court that he and appellant had ongoing communications prior to that point.   Counsel stated, “Mr. Lee somehow wants to show me elementary concepts of a trial lawyer․”  Counsel expressed the view that after 25 years of practice, he was capable of providing appellant with a defense as well as any other attorney.   The court told appellant that he had known counsel for 25 years and was confident appellant was “not going to find a better lawyer anywhere.”   The court explained, “I understand that you don't agree with the way he's approaching things, but that's because you're not a trained and experience[d] lawyer.   He is.”   Appellant said that he wanted to represent himself.

After a recess, appellant returned to court and said he no longer wanted to represent himself because he was unable to fill out the waiver forms.   The court told him that he would be returning on the next court date with the same attorney.

On April 16, 2007, appellant again was expelled from the courtroom.   When he returned, he complained that counsel did not communicate with him.   He claimed to be paying “an inmate that got a lot of law work,” who explained the case to him.   He asserted that he discussed the case with his attorney and could not figure out where counsel was getting all of the information on the case that appellant did not know about.

Counsel explained that he received new discovery from the prosecutor on an ongoing basis.   He summed up the problem with his client.  “Your Honor, Mr. Lee is upset.   He's been upset since we brought up the issue of penalty phase preparation.   I've explained to him that I have a duty to make preparations for that potential outcome, and that is upsetting him from day one.   He wants just to get to the guilt phase and have his trial in the guilt phase, and I understand that.   And I'm going to do everything I can to prepare for that.   I have been preparing for it.”   Counsel claimed to have had extensive communications with appellant on the telephone and at the county jail.   He opined that any communication problem stemmed from appellant's refusal to listen to his view of the case.   Counsel repeated that although he hoped the prosecution would not seek the death penalty, he had to assume that it would and be prepared for that outcome.  (As noted above, the district attorney's office did not make a decision with respect to the death penalty until October 2007.)

The court denied the motion.

On October 31, 2008, while Rita Glaspie was testifying during trial, appellant's counsel asked for a brief recess.   Appellant informed the court that he was unhappy with counsel's cross-examination of Glaspie.   He said that he had been trying to get a new lawyer since his arrest.   The court told appellant that he had an excellent lawyer, and stated, in any event, that it was “not going to change horses in the middle of the stream.”   The trial proceeded.

On November 12, 2008, after the jury began deliberating, the court gave appellant a further opportunity to be heard with respect to his complaints about counsel.   In a rambling discourse, appellant complained about:  (1) a detective's lie that appellant had possessed a gun, which led to his parole being revoked;  (2) the same detective's lie to appellant's parole officer, claiming that appellant had been positively identified as one of the shooters in the murder case before the court;  (3) the evidence presented to the jury that he possessed a handgun prior to the murders, in light of the fact that he was a victim to a carjacking and the police seized the gun they found in his car;  (4) Rita Glaspie's lies during her testimony;  and (5) his attorney's failure to adequately present the above stated facts to the jury.

The court pointed out that the alleged lies the detective told were irrelevant as far as the trial was concerned and stated that counsel had been fairly effective with respect to his cross-examination of Ms. Glaspie.   It informed appellant that it believed counsel had vigorously defended the case and had done a fairly effective job.

Counsel acknowledged that appellant had given him the information regarding the interaction between the detective and appellant's parole officer.   His view was that the detective could have easily sidestepped any difficult questions on cross-examination and that anything the defense might have gained would have been outweighed by the fact that the jury would have learned appellant was on parole at the time of the crimes.

We address the merits of appellant's claim.

“ ‘ “ ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance.   [Citation.]  A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ”  [Citation.]  The decision whether to grant a requested substitution is within the discretion of the trial court;  appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would “substantially impair” the defendant's right to effective assistance of counsel.'  [Citation.]”  (People v. Abilez (2007) 41 Cal.4th 472, 487-488;  People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Here, appellant failed to demonstrate that counsel was providing inadequate representation or that he and counsel were embroiled in an irreconcilable conflict.  (People v. Lara (2001) 86 Cal.App.4th 139, 150.)   At the many hearings, appellant complained about three aspects of his attorney's representation:  (1) he had not kept appellant apprised of the strategy that would be utilized in the case;  (2) he had not visited appellant in jail;  and (3) contrary to appellant's wishes, he did not properly attack the weaknesses of Glaspie's testimony and the prosecution's case.

As appellant has not attempted to establish that he received inadequate representation, we examine whether appellant and counsel had an irreconcilable conflict.   The record establishes that counsel did communicate with appellant.   Counsel informed the court that he had many discussions with appellant about the case, with the exception of a three-week period after appellant's arraignment when counsel thought it best to let appellant “cool down.”   At no time did appellant dispute the factual basis of his attorney's claim with respect to the time he and appellant spent talking about the case.   Counsel made it clear that the root of appellant's dissatisfaction was appellant's belief that it was a waste of time to prepare for a penalty phase that he thought would never come to pass.   And although appellant was not happy with the manner in which his attorney approached the case and cross-examined a particular witness, disagreement concerning tactics, by itself, is insufficient to compel discharge of counsel.  (People v. Hart (1999) 20 Cal.4th 546, 604.)   Appellant failed to demonstrate a conflict that required counsel's replacement.

Appellant asserts reversal is mandated because the court failed to hear the basis for his October 31 motion.   He ignores the fact that the court gave him a full opportunity to voice his complaints on November 12.   Based on appellant's showing on that date, the court did not abuse its discretion by refusing to substitute counsel in the middle of trial.  (See People v. Smith (2003) 30 Cal.4th 581, 607.)

The court's denial of appellant's Marsden motions did not constitute error.

III. The Wheeler Motion

Appellant brought a motion pursuant to People v. Wheeler, supra, 22 Cal.3d 258, alleging the prosecutor was excluding African-American jurors.   He contends the court's denial of his motion deprived him of his Sixth Amendment right to an impartial jury.

We examine the court's duty in the face of a charge that the prosecutor is exercising peremptory challenges in a racially discriminatory fashion.  “First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race.   Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason.   Third, the court determines whether the defendant has proven purposeful discrimination.   The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.  [Citation.]”  (People v. Lenix (2008) 44 Cal.4th 602, 612-613.)

In this trial, prospective jurors were asked to fill out a lengthy written questionnaire.   In court, they were then asked questions by counsel over a two-day period dealing with their feelings on the death penalty, the credibility of police officers and gang members.   A number of peremptory challenges were exercised by each counsel.   After all defense counsel had accepted the jurors, the prosecutor challenged an African-American juror, and appellant's counsel stated, “I am making a Wheeler motion at this time for exclusion of Blacks, systematic exclusion of African Americans.   We have two presently in the box.   We have had five up to now.   All five of the previous ones have been excused by the prosecution and I would note for the record this panel has very few African Americans total.   I think the effect of getting rid of most of them before getting into the box has a great prejudicial effect on my client.”   The court indicated that it needed time to review the record and adjourned the proceedings for the day.

The following day, the court stated that it had reviewed the record and prepared documents for counsel.   The documents were a compilation of the prosecution's peremptory challenges (against 10 Hispanics, 7 Whites, 5 Blacks, and 2 Asians) and the defense's (14 White, 7 Hispanics, and 9 Asians), as well as a listing of the current composition of the jury (4 Hispanics, 3 Whites, 2 Blacks and 2 Asians).   Appellant's counsel claimed that there was a systematic exclusion of African-Americans on the panel, in particular, Juror Nos. 56, 62, 120, and 128.   Codefendants' counsel joined in the motion.

At this point, the court questioned whether it was allowed to consider the challenged jurors' responses in determining whether a prima facie case of discrimination had been established.   After discussing two cases that presented opposing views on the issue, it concluded that it had the authority to do so.

As to Juror No. 56, the court considered that he said police officers lie a lot.   He had had a bad experience with an officer who lied about his speeding and his father had been jailed in the past.   The juror had been arrested for reckless driving.   The court noted Juror No. 56 had been sued for child support, “which would suggest to this court, at least, that he's not a particular[ly] responsible parent.”   The juror also said that he had a friend who was a gang member and that people who join gangs did so for support.   The court stated this view “could be interpreted as a fairly supportive position of people who join gangs.”

With reference to Juror No. 62, the court noted that she was an attorney, who wrote in her questionnaire that “quote, everyone lies.”   She believed that legalizing drugs would be a way to reduce crime, a view the court suggested was “fairly liberal.”   The juror and her son had bad experiences with police officers, she believed jurors are extremely dumb, an attitude the court believed that, if expressed, could upset other jurors, and she visited her cousin's former boyfriend in jail.   The juror also commented that she had good and bad experiences with gangs, causing the court to note that few people expressed that view, as most had only negative contacts with gang members.   She also believed gang members were everyday ordinary people.

Regarding Juror No. 120, he said officers lie, probably a lot.   In response to the question, would you be able to vote for death if you believed that the death penalty was appropriate, he wrote, “ ‘Not sure.’ ”

Finally, as to Juror No. 128, on her questionnaire when asked if officers lie, she responded, “Yes.” Asked how often, she answered, “For years.”   She expressed dissatisfaction with the criminal justice system and when asked how important religion was to her, she wrote, “It is my life.”

The court concluded that the prosecutor was not focusing on race when excusing jurors.   It found that appellant failed to present a prima facie case of discrimination.11

Appellant asserts that the trial court was not allowed to rely on its reasons for believing that the challenges were race neutral.   He argues the court had to ask the prosecutor for his rationale for exercising the peremptories and complains “the trial court did not evaluate the prosecutor's reasons, the court supplied them.”   His argument suffers from a misunderstanding of the court's role in ruling on Wheeler motions.

Contrary to appellant's belief, there was nothing improper about the court determining whether the record contained sufficient evidence from which to infer that the prosecutor had exercised peremptory challenges in a discriminatory manner.   It is only after finding that a prima facie case has been established that the trial court is precluded from speculating as to why a party exercised its peremptories and is required to ask the party for his or her reasons.  (People v. Lancaster (2007) 41 Cal.4th 50, 75-76.)

Where the trial court has found that a defendant has failed to establish a prima facie case under Wheeler, “we apply the standard the high court articulated in Johnson [v. California (2005) ] 545 U.S. 162, and undertake an independent review of the record to decide ‘the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.’  [Citation.]”  (People v. Taylor (2010) 48 Cal.4th 574, 614.)   A defendant establishes a prima facie case “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.”  (Johnson v. California, supra, 545 U.S. at p. 170.)   Appellant failed to meet that burden.

The record discloses clear race-neutral reasons for the prosecutor's challenge of the jurors in question.   All of them expressed a distrust of police officers, some emphatically.   Juror Nos. 56 and 120 said officers lie a lot and Juror No. 128 opined that the police had lied “for years.”   Appellant does not contest that police distrust is a proper race-neutral ground for excusing a juror.   Instead, he suggests that “[a] healthy skepticism about police officer witnesses in light of widespread publicity about police officer wrongdoing should not justify disqualification.”   The question, however, is not whether the justification for excusing a juror is a good one.   The inquiry is whether the reason is a valid and nondiscriminatory one.  (People v. Reynoso (2003) 31 Cal.4th 903, 924.)

In addition, Juror Nos. 56 and 62 had, in the court's words, “fairly supportive” views of people who join gangs.   The three defendants in this case were gang members and there were gang allegations, including a gang-related special circumstance.   Juror Nos. 56 and 62 and their family members also had a negative personal experience with a police officer.   Juror No. 120 expressed uncertainty with his ability to vote for death even if he personally believed that penalty was appropriate.   Where two of the three defendants faced the death penalty, a juror's reluctance to impose that penalty is an appropriate and relevant race-neutral reason to excuse that juror.  (People v. Watson (2008) 43 Cal.4th 652, 674.)   Finally, Juror No. 128, when asked how important religion was to her, wrote, “It is my life.”   A juror with such strong religious beliefs could face difficulty reaching verdicts, especially with regard to the death penalty.  (See People v. Taylor (2009) 47 Cal.4th 850, 892.)

After reviewing the record, we are satisfied that appellant failed to establish a prima facie case of discrimination.

IV. Weapon Possession Evidence

Appellant contends the court should have excluded Rita Glaspie's testimony that appellant had a gun in his possession a week before the murders.   He claims such evidence was irrelevant and prejudicial.

On cross-examination by appellant's counsel, Glaspie testified that appellant told her that his car had been impounded, he needed money to get his car out of impound, and he got involved with people who were going to only commit a robbery.

During cross-examination by Ingram's counsel, Glaspie was asked about testimony she had given about another incident at a liquor store a week before the shooting.   A bench conference was held in which the court asked Glaspie its own questions.   In response, she said that appellant had told her he was arrested while at a liquor store and a gun was found either on his person or in his vehicle.   He did not say whether the gun had been taken by police and she assumed it was the same gun used in the shooting of Kellum and his son, although appellant had never said so.

The court stated:  “I am going to allow [Ingram's counsel] to ask if [appellant] told her ․ that he had been arrested with a gun a week earlier or so.   I am not going to allow you to get into whether it was the[ ] gun that was used to kill the kid.   So that's the way I am going to resolve this․  [Y]ou can get into the details about the fact that there was an incident and a gun․  So he wasn't doing a crime.   He was the victim of a crime․ 12  And he had a gun in his car․  I will allow that.   I don't think that is harmful to [appellant] that he was the victim of the incident․  This witness is not clear in her mind in the court's view that [appellant] ever said that the gun that was used to kill the child was the[ ] gun that was in the car at the time of his arrest․”

The jury was called back in and the following colloquy took place:  “[Ingram's Counsel:] Ms. Glaspie, with respect to one of the conversations that you had with [appellant] on or around October the third of 2006, he told you that he had been arrested one week earlier with a gun;  he had a gun, correct?”  [¶] A. Correct.  [¶] Q. And he said that it had to do with an incident that occurred near a liquor store, correct?  [¶] A. Yes․”

On re-cross by appellant's counsel, Glaspie was questioned further on the subject.  “[Appellant's Counsel:] Now, this other liquor store that we're talking about, this conversation that you had about [appellant] being at a liquor store occurred before the homicides right?  [¶] A․  I'm not really for sure because the homicide and robbery led up to why he was trying to do a robbery so that he could get his car out of impound so I don't remember if it was that day or-I don't recall.   I can't say for sure exactly when.  [¶] Q. All right.   You testified that he told you about an incident that occurred that week prior to the murder?  [¶] A. Right.  [¶] Q. At a liquor store, right?  ․ [¶] ․ [¶] The witness:  He said that he got into a fight.   That he had got into a fight, a scuffle at the liquor store but he got out because he was the victim.  [¶] Q. He got out of jail because he was the victim?  [¶] A. Correct.   But his car was impounded.  [¶] Q. And as he was telling the story he said something about during the arrest or during the incident the police had recovered a gun, correct?  [¶] A. Yes. [¶] Q. But he didn't state specifically where they recovered it from or how it was recovered or anything like that?   [¶] A. To my-if I recollect correctly I thought that they recovered it from his car.”

Even if we assume the court erred by allowing the testimony, its admission does not require reversal.   Although appellant claims that the evidence made him appear to be a violent person, any prejudicial effect was minimal in contrast to the testimony that directly implicated him in two murders.   (People v. Boyette (2002) 29 Cal.4th 381, 428;  People v. Shoemaker (1982) 135 Cal.App.3d 442, 449-450.)   As it is not reasonably probable a result more favorable to appellant would have been reached absent the admission of the evidence, any alleged error was harmless.  (People v. Watson (1956) 46 Cal.2d 818, 836.)   As to appellant's assertion that the receipt of the evidence violated his federal right to due process, “ ‘[t]he “routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.”  [Citation.]’ ”  (People v. Lewis (2009) 46 Cal.4th 1255, 1284.)

V. Sufficiency of the Evidence

Appellant claims he presented evidence that he was not with codefendants when they shot the victims.   He contends that even if there is sufficient evidence to place him at the scene of the shootings, “there is nothing to show he did anything more than get out of the car.”   Appellant argues that neither Glaspie, Ingram, nor Jefferson can be believed and that the jail cell conversation with Dennis did not implicate appellant in the shooting.   The jury found the prosecution's witnesses credible and it is not for this court to reweigh the evidence and substitute our judgment for that of the fact finder.  (People v. Millwee (1998) 18 Cal.4th 96, 132.)   The evidence presented by the prosecution is sufficient to sustain the jury verdict.

VI. The New Trial Motion

Appellant's counsel filed a new trial motion, in which he claimed:  (1) there was insufficient evidence to sustain the verdict;  (2) the court erroneously allowed evidence of appellant's prior gun possession;  and (3) there was newly discovered evidence that, if considered, would probably lead to a different result.   We have discussed the sufficiency of the evidence and gun possession claims.   Neither supported the grant of the new trial motion.

As to the newly discovered evidence claim, appellant contended there were three witnesses who did not testify at trial whose testimony would have affected the outcome.   He pointed out that Bennett told police that only two people-Dennis and someone who looked like Ingram-were involved in robbing Kellum.   Bennett was subpoenaed but neither the prosecution nor defense investigators were able to locate him.   Appellant also argued that Hazel Lewis was a neighbor who saw a suspect run to the Navigator after shots were fired but did not see anyone who matched appellant's description.   He alleged that her contact information was withheld from the defense until shortly before trial, and she was never personally served with a subpoena.   Finally, appellant claimed that Adriana Ramirez observed a suspect running to the Navigator and saw a driver and another passenger.   She did not describe anyone who matched appellant's description.

At the January 7, 2009 hearing on the motion, the trial court set forth its view of the evidence.  “The ballistic evidence showed that two guns were fired.   There was evidence that the co-defendants, Dennis and Ingram, had committed the robbery of ․ [Kellum] that preceded the murders in the case.   The case was made more interesting by the way that the evidence played out at trial.   As [appellant's counsel] stated, the defendants were pointing fingers at each other, in particular Mr. Ingram, when he testified, rather than saying he wasn't there, admitted to being present, but said that [appellant] and Dennis were the persons that actually shot and they were the murderers.   The jury by its verdict indicated the difficulty in deciding who shot who, finding an inability to return a verdict as to whether or not, as charged, Ingram and Dennis each had personally discharged a firearm that led to the killing of a particular victim․  The court found Ms. Glaspie to be very credible.   To me the issue has always been what did [appellant] do.   Jefferson certainly put him at the location.   If [appellant] had never gotten out of the S.U.V., I think we have a different case.   He got out of the car;  the murders occurred;  his later admissions to Ms. Glaspie, which occurred shortly after the killing ․ that he had killed a kid, that he was going to the gas chamber.   I think that phrase that has been frequently repeated in this case, attributed to [appellant], that ‘We tried to turn a Buick into a Benz,’ is the kind of phrase that someone would remember.   A lot of credibility on that phrase, and that to me is an admission that he was part of the events here that started with the robbery.   That doesn't mean that he was there at the initial robbery, but certainly Jefferson testified that after the killings, that [appellant] had possession of a wallet back at the house․

“And regarding the absent witnesses, I don't think the case has been made that they would have significantly impacted the jury result in this matter.   When I look at the entire case, and I consider the evidence, particularly the evidence from Glaspie and Jefferson, who I also felt were credible, and I consider the taped overhear[ing] of the [appellant's] own words, I find that there was sufficient evidence to support the jury's verdict, and I deny the motion for a new trial as a result.”

We agree with the trial court that the missing witnesses would not have aided appellant's case.   Even assuming Ramirez and Lewis would have testified that they did not see anyone matching appellant's description at the scene, that evidence would have had little impact in the face of appellant's admissions to Glaspie and statements to Dennis.   Appellant implicitly concedes the point by failing to offer any argument in his briefs relating to Ramirez and Lewis, stating only that he “does not minimize the value of their testimony.”

Appellant focuses on Bennett, whom he characterizes as “a most critical and necessary witness.”   We have already discussed the fact that Bennett saw only the robbery that preceded the murders and the limited probative value of that proffered testimony relative to the shooting.   Appellant also asserts that Bennett would have testified that he believed cocaine was being stolen from the victim and suggests the motive for killing Kellum was related to drugs.   First, we question whether such testimony would have been admissible, as appellant fails to explain the basis of Bennett's opinion.   Second, several of the witnesses testified that the item taken in the robbery was Kellum's wallet.   Hasan saw the wallet taken, Derrick Junior said one of the robbers told his father to give them his wallet, Jefferson heard the victim saying that he wanted his wallet back before he was shot, and Jefferson saw appellant with a wallet when the defendants returned to the house after the murders.   Third, disputing the motive for the murders would have had no bearing on the question of who was responsible.   The trial court correctly concluded that appellant's newly discovered evidence would not have changed the result.

We will not disturb the court's ruling on a new trial motion unless its decision constitutes a “manifest or unmistakable abuse of discretion.”   (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1063.)   No such abuse is present here.

VII. Cumulative Error

Appellant contends that the cumulative effect of the trial court's errors deprived him of a fair trial.   As we have found harmless the only possible error, the admission of the evidence relating to appellant's prior gun possession, this claim necessarily fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

1.  FN1. All further statutory references are to the Penal Code.

2.  FN2. People v. Marsden (1970) 2 Cal.3d 118.

3.  FN3. People v. Wheeler (1978) 22 Cal.3d 258.

4.  FN4. Front Hood is the name of a local gang.

5.  FN5. Prints lifted from the Navigator after the shooting were identified as belonging to Jefferson and Ingram.

6.  FN6. Jefferson was the person depicted in the photograph.

7.  FN7. Pitchess v. Superior Court (1974) 11 Cal.3d 531.

8.  FN8. Although the severance motion is not included in the record on appeal, we have read the prosecution's opposition and the oral argument presented.   We glean from them that the basis for the motion was appellant's desire to proceed to trial without his codefendants, who were willing to waive time and continue the matter.   It also appears that the motion was denied on an earlier date and the court, on its own motion, wanted to reconsider its earlier ruling.   We cannot determine when the court originally denied the motion.

9.  FN9. The disapproved cases include two upon which appellant relies, People v. Escarcega (1986) 186 Cal.App.3d 379 and Arroyo v. Superior Court (2004) 119 Cal.App.4th 460.  (Sutton,supra, 48 Cal.4th at p. 562.)

10.  FN10. As appellant does not include a separate discussion of the severance issue in his briefs, we do not address it.

11.  FN11. Because the court was not certain it had the authority to consider the jurors' responses without asking the prosecutor for his reasons for exercising the peremptories, it gave him the opportunity to put them on the record, making it clear that it was not finding a prima facie case.

12.  FN12. According to appellant, he was accosted in a liquor store parking lot by three individuals who tried to rob him.

SUZUKAWA, J.

WILLHITE, Acting P.J. MANELLA, J.

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