Filed 5/15/13 P. v. Lee CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. DRE’SHAWN MARKUISE LEE,

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

THE COURT: It is ordered that the opinion filed here in on April 17 , 2013, be modified in the following particulars: 1. On page 12, third sentence, beginning “T he failure to provide” is deleted. The following sentence is inserted in its place: Finally, upon our review of th e record and in light of the information otherwise availabl e to defendant’s substitute attorney, we further conclude that defendant’s substitute attorney did not require a free trial transcript to properly represent him at the sentencing hearing. There is no change in the judgment. The petition for rehearing is denied.
Date: May 13, 2013

_______ __________________ Margulies, Acting P.J.Filed 4/17/13 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. DRE’SHAWN MARKUISE LEE, Defendant and Appellant. A134215

(Alameda County Super. Ct. No. C166071)

Defendant was convicted follo wing a jury trial of one count of first degree murder (Pen. Code, § 187), and assault with an a ssault weapon (Pen. Co de, § 245, subd. (a)(3)), with associated enhancements for personal a nd 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 recei ved 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 gran t 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, 20 09, Oakland police offi cers 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 mu rder victim, Gary Jackson, was lying in the front yard of a resi dence at the intersection of 51st Avenue and International Boulevard in Oakland. Ange lica 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 contact ed Jackson, he had been shot twice, and “wasn’t looking in good sh ape.” Jackson gave his name and birt h 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 th e two-story residence at 1425 - 51st Avenue, and uttering, “upstairs.” The victim thereafter became inco herent and nonr esponsive. Jackson was taken to Alameda County Ho spital, 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 to rso that resulted in severe loss of blood pressure and irreversible shock. The tr ajectory of the bullet through the body was possibly consistent with the victim “runni ng from someone” when he was shot, although the location of the shooter was not subject to determination wit hout 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 cont ribute to his death.Mourning was also treated at the hospita l for three gunshot wounds: two to her right arm, and one to her left wrist. After th e shooting, she was not ab le to move her right

arm. Police investigation at the scene of th e 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 Ave nue. Bullets fragments were fo und 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 Da ys, a maintenance worker for the Oakland Housing Authority, found a Norinco assault rifl e, 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 extrac ted 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 shoo ting 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 durin g 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 prof ile was “consistent with all of the DNA types” obtained for the “major donor” of the “biological material fro m 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 elimin ated 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 th e lack of DNA types for all the donors.Angelica Mourning testified at trial. In December of 2009, she worked as a prostitute for Jackson, known to her by the nickname “Fat Bo y,” around 48th Avenue and
International Boulevard in Oakland. Earl y 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 receiv ed 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, an d crossed the street to talk to Craig. When Jackson retu rned to the car he told Mourning that Craig said defendant accused him “of snitching.”
Jackson drove to 51st a nd International, where he parked the car near the intersection. He directed Mourning to “s tay in the car” while he left to “go solve something real quick.” Jackson walked acros s the street, where he talked to Craig for about five minutes. Mourning di d not see Jackson or Craig in possession of a gun. She remained in the car, talking by phone with Craig’s girlfrie nd “Juicy.” Mourning then heard a round of gunshots from across the street, and “balled up in the front seat.” The gunshots ceased momentarily, th en resumed and hit the car. The car window glass was shattered and Mourning was hit by three of the shots. Mourni ng testified that she did not see the shots fired, but was “pretty sure” Cr aig 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 ambulan ce 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 th eir son. Around 4:00 a.m. on December 29, 2009, Men was sleeping when defendant a rrived home and took a “long gu n” – similar in length to the rifle found near the dumpste r – out of the bedroom closet . Defendant said he was “sorry” if “he made too much noise,” then left the house through the front door. Menheard defendant walk to the front of the house, followed by a “lot” of gunshots, more
than ten. She then heard a wo man scream and yell for help. Men did not see defendant ag ain until late that same afte rnoon, 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 th ey were living in Tracy, defendant told Men
that he killed Jackson because he “was a snitc h.” Defendant also me ntioned to Men that he threw the gun away after the shooting. In an interview with the police on Janua ry 19, 2010, Men initia lly 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 poin t in lying,” and gave a statement that was consistent with her testimony at trial. Men al so stated during the interview that defendant
also told her “Jackson was with anothe r girl” when the sh ooting occurred.
Men testified that she and defendant “bro ke up” in July of 2010, over defendant “seeing other women,” even while she was pr egnant with his child. Men was “upset” with defendant, and told her mother she “h ated 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 Oa kland police officer testified that she
interviewed Jackson in connecti on with an armed robbery at a taco truck at 48th Avenue and International Boulevard on September 28 , 2009. Jackson told the officer he was present at the taco truck, and observed defendant carrying a shotgun. After Jackson identified defendant and signed a statement, defendant was arrested for possession of the shotgun. Men confirmed that defendant was arrested in September of 2009, and spent a month in jail before he was released and the charges were dismissed.Marcel Williams provided a statement to an Oakland police investigator on January 5, 2010. 2 Williams was acquainte d with defendant, Jacks on 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. Defenda nt complained that Jackson “snitched” on him “with that shotgun” at th e 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 “m ake it look like an accident.” According to the statement by Williams, Craig then phoned Ja ckson and told him defendant accused him of being a snitch. Ja ckson 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 sn itch.” After he explai ned that he did not give any information to the police that implic ated defendant in the prior possession of the shotgun, the encounter “calmed down.” Cr aig and Jackson sepa rately 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 th at he did not know Jackson, defendant, or Craig, and did not give the statements to a homicide inspector that were he ard on the recorded interview and played for the jury immediat ely 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 appointe d attorney. After the conclusion of the trial and pr onouncement of the jury ve rdict, 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 acco mpanying motion for a new trial on grounds of ineffective

2 The interview was recorded and played for the jury.assistance of counsel at trial. The bases for the claim of ineffectiv e assistance of trial counsel were specifically delineated in defe ndant’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 defe ndant was not deprived of his due process rights, trial counsel was not incompetent, and no prejudice to defendant resulted. Defendant argues that follo wing the substitution of coun sel, the denial of his request for a reporter’s transcript of the tr ial proceedings “served to guarantee that he would not have effective representation for his new trial motion and [the] sentencing proceedings.” He asserts th at without the transcript “[s]uccessor counsel could not properly investigate potential grounds for a ne w trial motion or adequa tely argue the ones
identified in the declaration attached to appellant’s new trial motion.” The result, complains defendant, was a “tot al deprivation” of his “Six th and Fourteenth Amendment right to the assistance of couns el at critical stages of the criminal proceedings against him.” He requests that we reverse the judgme nt and remand the matter “to the trial court for further new trial motion and sentencing pr oceedings conducted with the benefit of full trial transcripts.” I. Defendant’s Right to Effe ctive 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 th at it ‘fell below an ob jective standard of reasonableness . . . under prevailing professiona l norms.’ [Citations.] In addition, a defendant is required to show he or sh e was prejudiced by counsel’s deficient representation. [Citations.] In determini ng prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, th e result would have been more favorable to the defendant.” ( People v. Frye (1998) 18 Cal.4th 894, 979.) “A reasonable probability is a probability suffi cient to undermine confidence in theoutcome.” ( 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 affirmat ively 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 challe nged[,] . . . unless counsel was asked for an explanation and failed to provide one, or un less there simply could be no satisfactory explanation,” the claim on appeal must be reject ed.’ [Citations.]” ( People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266.) Where the re cord 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 cons titutional 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 pres entation 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 couns el to present the new trial motion and represent defendant at the sentencing hearing. The focus of our inquiry, then, is upon weather the fa ilure 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 tr ial motion to fall below anobjective standard of reasonableness. We mu st further determine if defendant suffered prejudice as a result of counsel’s l ack of access to the transcript. II. Defendant’s Motion for a New Trial

. Our assessment of the propriety of the tr ial court’s denial of defendant’s request for a reporter’s transcript also implicates th e standards that govern new trial motions in the context of the present case. As the tr ial court recognized, “Although ineffective
assistance of counsel is not one of the statut ory 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 me ritorious defense or otherwise prejudiced
his case to the extent that th e trial cannot be relied on as ha ving 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 deni al of a motion is a matter w ithin the sound discretion of the trial court, and in determining whether th ere 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 prin ciples require an indigent criminal
defendant to be furnished with a free reporter’s transcript of prior proceedings if the transcript is needed for pr oper appellate review or fo r 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 connectionwith the appeal, and (2) the av ailability of alternative mean s to fulfill the same function as the transcript. ( Ibid .)
The absolute constitutional right of an indigent crim inal defendant to a free reporter’s transcript for an appeal does not exte nd 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 defe ndant preparing a new trial motion “is not entitled, as a matter of absolute right, to a full re porter’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 furnishe d 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 c ourt “may properly deny a request for free transcripts to prepare a motion for new trial wh ere 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 circ umstances in determining whether the
defendant has made a sufficient showi ng 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 de fendant failed to make the requisite showingof a particularized need for the transcript to secure effective representation. First, the reasons presented in support of the very co mprehensive new trial motion related almost exclusively to former counsel’s omissions at trial: failure to offer proof that Marcel Williams was not acquainted w ith 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 Darn ell Craig was seen with the murder weapon before the shooting; failure to more e ffectively 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 intervie ws with her; and, failure to present additional evidence on the traj ectory of the bullet th at 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 in timate 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 investigati on 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 pr offered 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 pa rticularized 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 asse ss the claims of inco mpetence 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.the motion for new trial. Our examination of the record persuades us that defendant’s
assertions of ineffective assist ance 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 source s that included both convin cing physical evidence and independently corroborated testimony from several witness, and was quite overwhelming. The failure to provide defendan t with the trial transc ript did not deprive him of effective assistance of counsel, a nd was harmless under any standard. Under the facts presented here, the trial court di d not commit prejudicial error by denying defendant’s request for the transcript. Accordingly, the judg ment is affirmed.

________________ __________________ Dondero, J.

We concur:

________________ __________________ Margulies, Acting P. J.

________________ __________________ Banke, J.