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Filed 2/23/21 P. v. Frazier CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LUTHER FRAZIER,

Defendant and Appellant.

C082028

(Super. Ct. No. 15F01458)

Defendant Luther Frazier was found guilty by jury of first degree murder (Pen. 

Code, § 187)1 and additionally found to have personally and intentionally discharged a 

firearm in the commission of the offense. (§ 12022.53, subd. (d)) He was sentenced to 

50 years to life. 

1

 Undesignated statutory references are to the Penal Code in effect at the time of the 

charged offenses.
2

Defendant contends the trial court abused its discretion by denying his posttrial 

Marsden2 motion alleging ineffective assistance of counsel, and by refusing to appoint 

new counsel to investigate a motion for new trial.3 In supplemental briefing, defendant 

contends he is entitled to a remand for resentencing so that the trial court can exercise its 

discretion as to whether to strike the firearm enhancement. We shall remand the matter 

for that purpose and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant fatally shot the victim outside the victim’s apartment. At trial, 

defendant testified and claimed self-defense. 

The victim was defendant’s heroin supplier. A video surveillance camera 

recorded defendant’s car approaching the victim’s apartment prior to the shooting. A 

postal carrier saw defendant and another person arguing during what appeared to be a 

drug deal. Defendant was holding a short barrel .38-caliber revolver. The person with 

whom defendant was arguing walked away and defendant followed. The two men went 

between some buildings. The postal carrier heard gunshots, and while running away 

from the scene, he looked back and saw defendant walk out. 

An autopsy showed that the victim was shot six times -- in the chest, abdomen, 

and pelvis, including at least once in the back. All shots were fired from close range. 

Defendant later told a friend he had “murked somebody.” The friend told the 

police that “murked” meant “killed.” 

Defendant resided at his parents’ home. His father owned .38-caliber revolver, 

which he discovered was missing after hearing about a shooting in the neighborhood. 

The police arrested defendant at the parents’ home, but did not find the gun. 

2

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

3

 Defendant made two posttrial Marsden motions, as we explain below. He claims error 

only as to the second motion.
3

In a videotaped interview with the police played for the jury, defendant claimed

acquaintances must have stolen his father’s gun. He admitted the victim was his heroin 

supplier. Throughout the earlier parts of the interview, defendant denied being at the 

scene that day, but then admitted going to the victim to beat him up because the victim 

had threatened his family. Defendant said another individual, who had accompanied 

defendant, shot the victim. 

During his trial testimony, defendant disavowed his police interview statement4 

admitting he “lied through [his] teeth,” but saying he did so to protect his family, who the 

victim had threatened. Defendant testified the victim had engaged in a campaign of 

extortion and intimidation to gain use of defendant’s car and made a series of threats to 

defendant’s family. Defendant claimed the victim professed to be a G-Mobb gang 

member and warned defendant that if he went to the police, the gang would kill his 

parents. Defendant told the jury he shot the victim in self-defense after the victim pulled 

out his gun. 

The First Marsden Motion 

After the parties rested and the jury left the courtroom, defense counsel stated that 

defendant wanted to address the court and suggested that it occur outside the prosecutor’s 

presence. The prosecutor left. 

Defendant told the trial court that he felt defense counsel had been ineffective 

because he had promised to produce evidence corroborating defendant’s story, consisting 

of information gleaned by a private investigator from the internet about the victim’s 

involvement with guns and gangs, but had not done so. Asked by the court if there was 

anything more, defendant said, “That’s it, Your Honor.” 

4

 The videotape is not in the appellate record. A transcript of the interview was provided 

to the jury and to this court, but was not admitted in evidence. Since neither party 

questions the accuracy of the transcript, we rely on it.
4

In response, counsel said the best his investigator had found was “a quasi sort of 

girlfriend of [the victim] who said that he was involved in drugs.” Counsel considered 

this “irrelevant” in light of the anticipated and actual testimony about drug sales in and 

out of the victim’s apartment. 

Counsel added that defendant had not claimed self-defense until after “it became 

abundantly clear that this [third] person he was blaming was tracked down by the Citrus 

Heights Police Department and had a rock solid alibi.” Then, for the first time, defendant 

talked about “his family and [the victim]’s threats, et cetera.” Although potential 

witnesses, including the victim’s roommates, had corroborated defendant’s claim that the 

victim treated him badly, there was no evidence tying the victim to guns or gangs. This 

incident did not occur in the territory of G-Mobb, the victim’s alleged gang. He did not 

fit the profile of a gang member, and there was no evidence of gang paraphernalia or 

tattoos.

Counsel told defendant that his self-defense story was his third version of events, 

there was no evidence supporting it, and the jury would not believe it if he testified to it. 

Defendant asserted that there were unproduced witnesses. Counsel replied that a 

search for Fowler and Marlow, the victim’s two roommates, had been unsuccessful. One 

had an outstanding no-bail arrest warrant, while the other was apparently living in Las 

Vegas and could not be found. 

The trial court denied the Marsden motion, finding that counsel’s account was 

credible, defendant had not shown that there was any material evidence counsel failed to 

present, counsel had used his best judgment to make strategic decisions, and there was no 

irretrievable breakdown in the relationship between counsel and defendant. 

The Second Marsden Motion

After the jury returned its verdict, defendant filed two letters requesting a new trial

on the grounds that counsel was ineffective and biased against him. 
5

In the first letter, defendant complained that counsel failed to provide “witnesses 

[he] asked for, police records, gang profiles, proper description of the two different 

weapons.” Counsel showed bias against defendant “by calling me a junky on numerous 

occasions.” Counsel “rarely spoke during the proceedings” and “didn’t provide evidence 

that was available.” Counsel had told defendant’s father there was a plea offer, but did 

not tell defendant. Counsel told defendant if he spoke the truth, the jury would find 

imperfect self-defense at worst. 

In the second letter, defendant added that counsel failed to get defendant’s “psych 

records from the jail or the street,” did not tell the court that defendant was “off my psych 

meds,” failed to provide defendant the autopsy report, told him throughout the case that 

he was going to lose, yet simultaneously told him the jury would find imperfect selfdefense if he told the truth, and failed to present corroborating evidence about the 

victim’s involvement with guns and gangs. Defendant requested new counsel on retrial. 

On the scheduled date of sentencing, the trial court asked whether there had been a 

plea offer. The prosecutor and defense counsel said there was not.

Permitted to speak on his own behalf, defendant reiterated the allegations in his 

letters. After he said he was asking for new counsel, the court conducted a Marsden

hearing. 

Defendant asserted that the victim’s roommates could have been brought in to 

testify; the one who lived in Las Vegas had been in town during trial and could have been 

subpoenaed, and trial could have been continued until these witnesses were available. 

Counsel had been provided photos showing the victim and his roommate, Fowler with 

guns, as well as statements from the roommates saying the victim always had a gun, but 

did not introduce them in evidence. Counsel failed to put the victim’s “gang profile” or 

his police record before the jury. Counsel failed to “give proper rebuttal or crossexamination to recall witnesses that I felt that was pertinent,” in particular the postal 

carrier, and “[d]idn’t go into detail about difference in guns.” Counsel texted and 
6

received e-mails during trial, “unprofessional” conduct that showed he was not paying 

attention. Defendant did not get the chance to explain that he “went into protective 

custody” in the jail because people from the victim’s gang kept trying to fight him there. 

Counsel did not provide the jury with a psychological evaluation of defendant done at the 

jail. 

Counsel responded that the roommate in Las Vegas had been located and detained, 

but was released despite the outstanding warrant against him, and then could not be found 

again. Counsel had already obtained a couple of continuances, the prosecutor had long 

been ready for trial, and it was unclear how much longer the trial could have been 

continued to locate witnesses. In any event, the roommates’ testimony would not have 

benefited defendant: they claimed the victim had seen a suspicious person “sneaking 

around the neighborhood,” went out to confront him, and got shot by him. In other 

words, their stories were inconsistent with defendant’s self-defense claim.

Counsel said the alleged “photo of the gun” depicted a rifle, which would not have 

helped defendant because there was no evidence a rifle was involved in the case. The 

alleged witness statements that the victim always had a gun apparently referred to a 

“group gun” possessed by one of his roommates; there were no guns in the apartment. 

Counsel asserted that evidence of defendant’s psychological evaluation or 

medications would not have benefited him, given his changing stories about the case and 

his ultimate decision to claim self-defense. Furthermore, the videotaped police interview 

showed nothing to suggest defendant was “off his psych meds” at the time. 

Counsel explained that the postal carrier had been inconsistent about whether the 

gun he saw had a long or a short barrel, but had consistently said he saw only one gun 

and defendant was holding it. This evidence did not support defendant’s claim that the 

victim was also armed. 

Counsel said that he had explained to defendant that the jury would not believe his 

self-defense claim, but would see him as a “junkie,” “somebody who was strung out” and 
7

“killed your drug dealer because you were pissed at him basically.” That was what 

defendant was referring to when he complained that counsel had called him a junkie. 

Counsel indicated that he could not properly have questioned defendant on the 

stand about “protective custody.” In any event, defendant’s claim was based only on his 

allegations that unnamed people had threatened him and on a long e-mail from a friend of 

the victim that expressed the wish defendant would get what was coming to him. 

Counsel admitted that he checked his e-mails during the trial, but only on breaks. 

Given the opportunity to respond, defendant said he had “evidence right here 

through statements from transcripts saying from . . . Fowler, that they’re always in a 

gang. . . [¶] Also saying right here in this transcript that he’s the type of person to have 

a gun, the type of person to have had a gun. [¶] Also in transcripts from . . . Morrow 

from discovery saying right here he had a lot of problems with gangs, and his . . . web KP 

file had notations he needed to be separated in jail from Bloods. [¶] Also in statements 

right here from . . . Morrow, also stating that I always backed down. I never tried to 

confront him. Always tried to avoid conflict.”5 

Defendant also said: “I have it right here, discovery telling there’s a significant 

difference between the guns that the mailman was talking about and my father’s gun. . . . 

[¶] Also, it even goes into description in the discovery stating what [the victim] was 

wearing, a black sweatshirt, and a description of the gun that [the postal carrier] was 

talking about. He didn’t go into detail about that for my defense. [¶] And also in the 

transcript for [the postal carrier] he’s even describing everything, the difference between 

me and [the victim]. So I felt that that needed to be brought up. I have evidence right 

here, Your Honor, in these transcripts.” 

5

 Nothing in the record shows what “transcripts” and “statements” defendant was 

referring to.
8

The trial court responded that its notes on the postal carrier’s cross-examination 

showed counsel asked him specifically about “the barrel and what he saw about the gun.” 

Furthermore, the postal carrier had made clear that he saw only one gun, which was 

short-barreled, silver chrome, and shiny, not black. 

Asked if he wished to add anything else, defendant said: “Yeah. I think that was 

very pertinent for the trial, Your Honor, because my father’s gun is a long barrel. If he 

would have [seen] my gun, then he would have definitely spoken up and said he saw a 

longer barrel gun that was more looking like black instead of chrome silver. I felt that 

was a very big deal.” Defendant explained that this was pertinent to his self-defense 

claim because “that was his gun that the mailman saw.” 

The trial court said, “But I believe he also, correct me if I’m wrong, made it clear 

that the person with the gun was an African American male.” 

Defendant replied: “In his statement, Your Honor, he used the description it was 

two African American males. One was 5’6”, 200 something pounds, Your Honor. And 

also he went into description saying it was a black sweatshirt and the police also saying 

that [the victim] was wearing a black sweatshirt, also, Your Honor.” 

After stating, “just so the record is clear,” that the victim was a white male, the 

trial court denied defendant’s Marsden motion. The court noted that some of defendant’s 

points (the gang issues and the photographs) were addressed at the prior Marsden

hearing. The court then stated: “Let’s say [the victim] was part of a gang. Let’s say he 

was seen other times with a gun. You’re saying he had a gun. The jury could have 

believed that. The thing is[,] would it make a difference when the evidence showed the 

victim was shot multiple times in the back, witnesses saw one gun, you had no injuries, 

there were no other ballistics found to corroborate the victim ever shot off his gun if he 

did have a gun. [¶] So even if hypothetically all the evidence you refer to was true and 

was admitted, in light of all the other evidence and given that initially for hours you gave 

one version, then you gave a different version to the officers when you were interviewed, 
9

I don’t believe it would have made any difference. [¶] And in terms of this motion, I 

believe [defense counsel] has properly and effectively represented you through trial and 

made strategic choices. He considered different options. And he can’t--he has to work 

with what he’s given, including the different versions of the statements and given the 

physical evidence and given the witness statements. [¶] So I find counsel has properly 

represented [defendant] and will continue to do so. I find there has not been a breakdown 

in the relationship between counsel and [d]efendant of such kind that would make it 

impossible for counsel to properly represent [defendant].” 

DISCUSSION

I. Marsden Claim

Defendant contends that the trial court’s denial of his second Marsden motion was 

a prejudicial abuse of discretion. We disagree.

A defendant “may be entitled to an order substituting appointed counsel if he 

shows that, in its absence, his Sixth Amendment right to the assistance of counsel would 

be denied or substantially impaired.” (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 

citing Marsden, supra, 2 Cal.3d at p. 123.) We review the trial court’s ruling on a 

Marsden motion for abuse of discretion. Berryman, at p. 1070.

When a defendant after trial asks for appointment of new counsel to prepare a new 

trial motion on the ground of ineffective assistance of counsel, the trial court must 

conduct a hearing to examine the reasons underlying the request. (People v. Diaz (1992) 

3 Cal.4th 495, 573.) If the alleged ineffective assistance pertains to matters occurring 

outside the courtroom, which the trial court could not have observed for itself, and the 

defendant makes a “colorable claim” that trial counsel was ineffective, the court may 

exercise its discretion to appoint new counsel to assist the defendant on a new trial 

motion. (Id. at pp. 573-574; accord, People v. Smith (1993) 6 Cal.4th 684, 692-695.)

A colorable claim of ineffective assistance of counsel is one which establishes the 

possibility that trial counsel did not perform with reasonable competence and counsel’s 
10

incompetence could have adversely affected the outcome. This standard is not met if the 

claim “is based in substantial part upon factual representations that are manifestly 

inconceivable, or upon the failure of trial counsel to produce exculpatory evidence that is 

legally inadmissible or . . . merely cumulative of other evidence tending to exonerate the 

defendant that was adequately presented to the trier of fact.” (People v. Stewart (1985) 

171 Cal.App.3d 388, 396, disapproved on another point in People v. Smith, supra,

6 Cal.4th at p. 696.)

Here, the trial court held a full hearing on defendant’s Marsden motion. To the

extent defendant’s ineffective assistance claim depended on matters that occurred in 

court, the trial court properly drew on its observations, including its notes on the crossexamination of a key witness, to reject defendant’s claim. (See People v. Diaz, supra, 

3 Cal.4th at p. 573.) To the extent the claim depended on matters allegedly occurring 

outside the courtroom, the court allowed defendant to present whatever evidence and 

argument he had. Giving defendant the benefit of the doubt, the court then correctly 

determined that even if all of his alleged exculpatory evidence actually existed, was 

admissible, and had been presented at trial, it would not have made a difference to the 

outcome. We agree with the trial court’s determination.

First, even assuming that the evidence defendant cited existed and was admissible, 

it could not have trumped the physical and eyewitness evidence of how the confrontation 

between defendant and the victim played out, as the trial court found. There was no 

eyewitness or forensic evidence that the victim had or used a gun on the date of the 

crime; vague claims that he always or habitually had guns could not have overcome that 

evidentiary gap. The postal carrier who saw the whole confrontation up to the point of 

the shooting, testified that defendant had the only gun at the scene, the other person with 

whom he had been arguing walked away and defendant followed. And defendant’s 

account of a face-to-face shooting at a distance was not reconcilable with the autopsy 

findings that the victim was shot from behind at close range.
11

Second, as the trial court also found, defendant’s evidence could not have 

overcome his lack of credibility as a witness. He admitted that he lied nonstop to the 

police. 

Defendant asserts that he raised a colorable claim of a defense of provocation and

self-defense based on the alleged evidence he cited in his Marsden motion, which trial 

counsel failed to present. But although defendant sets out this evidence, he does not 

make any developed argument to show that it would have been admissible, which was his 

burden on the motion and remains so on appeal.

6

 (See People v. Stewart, supra, 

171 Cal.App.3d at p. 396.) Nor does he make any developed argument to show how this 

evidence, even if admissible, could have bolstered a provocation or self-defense theory to 

the point that it would have outweighed the physical and eyewitness evidence proving 

defendant the aggressor, or the evidence of defendant’s history of lying and repeatedly 

changing his story throughout the case.

Defendant has shown no abuse of discretion in the trial court’s ruling denying his 

Marsden motion and request for new counsel.

II. Senate Bill No. 620

The trial court sentenced defendant to a total state prison term of 50 years to life, 

consisting of 25 years to life for first degree murder plus 25 years to life for personally 

and intentionally discharging a firearm which proximately caused great bodily injury or 

death. (§ 12022.53, sub. (d).) At the time of sentencing, imposition of the firearm 

enhancement was mandatory.

Subsequently, Senate Bill No. 620 (SB 620), signed by the Governor on October 

11, 2017 (Stats. 2017, ch. 682, §§ 1-2), amended sections 12022.5, subdivision (c), and 

12022.53, subdivision (h), effective January 1, 2018, to allow a trial court to strike or 

6

 As noted, the trial court did not find he had met this burden, but merely assumed 

arguendo that he had done so. We are not required to make that assumption.
12

dismiss enhancements thereunder at the time of sentencing. Defendant asks us to remand 

the matter so that the trial court may exercise that discretion. We shall do so.

The amendment to section 12022.53, subdivision (h), applies retroactively to 

defendant. (People v. Robbins (2018) 19 Cal.App.5th 660, 678-679; People v. Woods

(2018) 19 Cal.App.5th 1080, 1089-1091.) The Attorney General contends remand is not 

required because the trial court clearly indicated when it imposed sentence that it would 

not have stricken the firearm enhancement if it had had the discretion to do so. (People v. 

McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels) [Remand is required unless the 

record reveals a clear indication that the trial court would not have reduced the sentence 

even if at the time of sentencing it had the discretion to do so].) 

The Attorney General relies on the trial court’s statements that defendant showed 

no remorse and took no responsibility, that his crime involved great violence, cruelty, and 

callousness, that the manner in which it was carried out indicated planning, that 

defendant had engaged in violent conduct which indicated a serious danger to society, 

and that his prior performance on probation was unsatisfactory. The Attorney General 

also notes that the court agreed with the harsh characterization of defendant and his acts 

expressed by the victim’s father in a sentencing statement. Specifically, after the victim’s 

father requested the court sentence defendant to the maximum and expressly stated that 

“50 years to life is not long enough,” the court commiserated with the victim’s father 

about the family’s loss and then said, “Your points are well taken.” The court’s 

statements could be an indication it would not sentence defendant to anything than less

than 50 years to life if it had the discretion. However, we cannot say the statements 

amount to “a clear indication” the trial court would not have struck or dismissed the 

firearm enhancement had it had the discretion to do so. (McDaniels, supra, 22 

Cal.App.5th at p. 425.) 
13

Consequently, we shall remand for the purpose of allowing the court to expressly 

exercise its discretion to strike or dismiss the firearm enhancement in the interest of 

justice.

DISPOSITION

The matter is remanded for further proceedings in accordance with part II of the 

Discussion. In all other respects, the judgment is affirmed.

 /s/

MURRAY, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

RENNER, J.