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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 herein on April 17, 2013, be modified in the 

following particulars: 

 1. On page 12, third sentence, beginning “The failure to provide” is deleted. The 

following sentence is inserted in its place: 

 Finally, upon our review of the record and in light of the 

information otherwise available 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 following a jury trial of one count of first degree murder 

(Pen. Code, § 187), and assault with an assault weapon (Pen. Code, § 245, subd. (a)(3)), 

with associated enhancements for personal and intentional discharge of a firearm, and 

infliction of great bodily injury or death (Pen. Code, §§ 12022.5, subd. (b), 12022.7, 

subd. (a), 12022.53, subds. (b), (d)). He received an aggregate state prison term of 65 

years to life. 

 In this appeal defendant claims that the trial court’s refusal to provide him with a 

free transcript of the trial proceedings in connection with his new trial motion and the 

sentencing hearing was a denial of his right to effective assistance of counsel. We 

conclude that the failure of the court to grant defendant’s request for a transcript was not 

prejudicial error, and affirm the judgment. 
STATEMENT OF FACTS 

 At around 4:00 a.m. on December 28, 2009, Oakland police officers responded to 

the report of a shooting at the 1400 block of 51st Avenue in Oakland. Two shooting 

victims were discovered, both bleeding from their wounds. The murder victim, Gary 

Jackson, was lying in the front yard of a residence at the intersection of 51st Avenue and 

International Boulevard in Oakland. Angelica Mourning was shot and wounded as she 

sat in the passenger seat of Jackson’s car, and was found at the northeast corner of 51st 

Avenue and International Boulevard. 

 When police officers contacted Jackson, he had been shot twice, and “wasn’t 

looking in good shape.” Jackson gave his name and birth date to one of the officers. The 

officer then immediately asked “who did that to him,” and Jackson responded by moving 

his head to the south in the direction of the two-story residence at 1425 - 51st Avenue, 

and uttering, “upstairs.” The victim thereafter became incoherent and nonresponsive. 

 Jackson was taken to Alameda County Hospital, where he died a few hours later 

from a gunshot that entered through the left buttock, passed in a 40 degree angle through 

the urinary bladder, the large intestine, and major blood vessels in the pelvic area and 

abdominal cavity.1

 The cause of Jackson’s death was massive internal bleeding and 

organ damage from the gunshot wound to the torso that resulted in severe loss of blood 

pressure and irreversible shock. The trajectory of the bullet through the body was 

possibly consistent with the victim “running from someone” when he was shot, although 

the location of the shooter was not subject to determination without knowledge of the 

position of the victim when the shot was fired. The lack of powder burning on the body 

indicated that the shot was not fired from close range. 

 

1

 Jackson also received a second, grazing gunshot wound to his lower lip that was “very, very 

minor,” and did not contribute to his death. 
 Mourning was also treated at the hospital for three gunshot wounds: two to her 

right arm, and one to her left wrist. After the shooting, she was not able to move her right 

arm. 

 Police investigation at the scene of the shooting resulted in the discovery and 

seizure of numerous 7.62 by 39 millimeter shell casings from street, sidewalk and stairs 

in front of 1425 - 51st Avenue. Bullets fragments were found at the scene, and bullet 

strike marks were observed in Jackson’s car parked across the street from the 1425 - 51st 

Avenue residence. 

 At 8:15 that same morning, Vernon Days, a maintenance worker for the Oakland 

Housing Authority, found a Norinco assault rifle, missing its magazine, in a box next to a 

dumpster located on 50th Avenue, behind the 1425 - 51st Avenue residence. Days gave 

the rifle to a passing police officer, who extracted a bullet from the chamber of the gun. 

An examination of the Norinco assault rifle by a firearms expert revealed that all 14 shell 

casings found at the scene of the shooting were fired from that firearm. 

 DNA samples were taken from the trigger and butt of the Norinco assault rifle. 

The trigger sample contained a “mixture of DNA” from two people, although the two 

donors were successfully differentiated during testing. The “major donor DNA profile” 

contributed “more DNA than the other donor,” who was a “very minor” contributor. The 

samples taken from the rifle were compared to DNA profile developed from a sample 

taken from defendant. Defendant’s DNA profile was “consistent with all of the DNA 

types” obtained for the “major donor” of the “biological material from the trigger.” The 

statistical probability of selecting another person with the same major donor profile 

“would be one in 33 million.” The sample taken from the butt of the rifle indicated a 

mixture of at least three donors. Defendant could not “be eliminated as one of the 

potential donors to the mixture on the butt of the rifle,” although further comparison was 

limited due to the multiple potential donors and the lack of DNA types for all the donors. 
 Angelica Mourning testified at trial. In December of 2009, she worked as a 

prostitute for Jackson, known to her by the nickname “Fat Boy,” around 48th Avenue and 

International Boulevard in Oakland. Early in the morning on December 28, 2009, 

Jackson drove Mourning in his dark purple or blue car to 48th and International to work 

as a prostitute. While there, Jackson received a call from Darnell Craig, known as D.C., 

during which they talked “about snitching or something like that.” Jackson then parked 

the car on 48th, between Bancroft and International, got out, and crossed the street to talk 

to Craig. When Jackson returned to the car he told Mourning that Craig said defendant 

accused him “of snitching.” 

 Jackson drove to 51st and International, where he parked the car near the 

intersection. He directed Mourning to “stay in the car” while he left to “go solve 

something real quick.” Jackson walked across the street, where he talked to Craig for 

about five minutes. Mourning did not see Jackson or Craig in possession of a gun. She 

remained in the car, talking by phone with Craig’s girlfriend “Juicy.” Mourning then 

heard a round of gunshots from across the street, and “balled up in the front seat.” The 

gunshots ceased momentarily, then resumed and hit the car. The car window glass was 

shattered and Mourning was hit by three of the shots. Mourning testified that she did not 

see the shots fired, but was “pretty sure” Craig was not the shooter. After Mourning was 

shot, a “lady” approached to help, but Craig “drove up and she got inside [his] car and 

they drove off.” Mourning left the car and dragged herself, bleeding, to the intersection 

of International and 51st, so the ambulance personnel or police would see her. 

 Chaenda Men, defendant’s girlfriend, heard the shooting from her bedroom on the 

second floor of the residence at 1425 - 51st Avenue, where she lived with her mother, 

two brothers, defendant, and their son. Around 4:00 a.m. on December 29, 2009, Men 

was sleeping when defendant arrived home and took a “long gun” – similar in length to 

the rifle found near the dumpster – out of the bedroom closet. Defendant said he was 

“sorry” if “he made too much noise,” then left the house through the front door. Men 
heard defendant walk to the front of the house, followed by a “lot” of gunshots, more 

than ten. She then heard a woman scream and yell for help. 

 Men did not see defendant again until late that same afternoon, when he appeared 

at the front of the house with his mother and sister. Defendant told Men “it was too 

dangerous” for them to stay in Oakland, so they were “leaving to go to his mom’s” house 

in Tracy. Men gathered her belongings and they drove with defendant’s mother to Tracy, 

where they stayed for six months. While they were living in Tracy, defendant told Men 

that he killed Jackson because he “was a snitch.” Defendant also mentioned to Men that 

he threw the gun away after the shooting. 

 In an interview with the police on January 19, 2010, Men initially lied to protect 

defendant by stating that she had not seen him the morning of the shooting. Later in the 

interview, however, she felt there was “no point in lying,” and gave a statement that was 

consistent with her testimony at trial. Men also stated during the interview that defendant 

also told her “Jackson was with another girl” when the shooting occurred. 

 Men testified that she and defendant “broke up” in July of 2010, over defendant 

“seeing other women,” even while she was pregnant with his child. Men was “upset” 

with defendant, and told her mother she “hated him,” but insisted that she testified 

truthfully at trial because “it’s the right thing to do.” 

 Evidence was presented to corroborate Men’s testimony that Jackson was killed 

by defendant for being a “snitch.” An Oakland police officer testified that she 

interviewed Jackson in connection with an armed robbery at a taco truck at 48th Avenue 

and International Boulevard on September 28, 2009. Jackson told the officer he was 

present at the taco truck, and observed defendant carrying a shotgun. After Jackson 

identified defendant and signed a statement, defendant was arrested for possession of the 

shotgun. Men confirmed that defendant was arrested in September of 2009, and spent a 

month in jail before he was released and the charges were dismissed. 
 Marcel Williams provided a statement to an Oakland police investigator on 

January 5, 2010.2

 Williams was acquainted with defendant, Jackson and Craig. At just 

after midnight on the date of the shooting, Williams was in Craig’s car with Craig, 

defendant, and some others at 48th and Bancroft. Defendant complained that Jackson 

“snitched” on him “with that shotgun” at the taco truck. Referring to Jackson, Craig 

suggested that defendant “knock him down” for being a snitch. Defendant stated that he 

intended to retaliate, but would “make it look like an accident.” 

 According to the statement by Williams, Craig then phoned Jackson and told him 

defendant accused him of being a snitch. Jackson quickly arrived at 48th Street in a 

purple car, accompanied by a woman known to Williams as “Little Angel.” Jackson was 

confrontational, and exclaimed, “I ain’t no snitch.” After he explained that he did not 

give any information to the police that implicated defendant in the prior possession of the 

shotgun, the encounter “calmed down.” Craig and Jackson separately drove onto 

Bancroft, toward defendant’s house on 51st. 

 Williams’s testimony at trial was entirely inconsistent with his prior statement to 

the police. Williams claimed that he did not know Jackson, defendant, or Craig, and did 

not give the statements to a homicide inspector that were heard on the recorded interview 

and played for the jury immediately following his testimony. 

DISCUSSION 

 Defendant complains that the trial court erred by failing to provide him with a free 

reporter’s transcript of the trial for review by his substitute appointed attorney. After the 

conclusion of the trial and pronouncement of the jury verdict, defendant moved for 

substitution of counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The trial 

court granted the motion, and defendant’s new counsel thereafter requested a trial 

transcript to support an accompanying motion for a new trial on grounds of ineffective 

 

2

 The interview was recorded and played for the jury. 
assistance of counsel at trial. The bases for the claim of ineffective assistance of trial 

counsel were specifically delineated in defendant’s declaration submitted in support of 

the new trial motion. The court denied both the request for a transcript and the new trial 

motion based on the stated findings that defendant was not deprived of his due process 

rights, trial counsel was not incompetent, and no prejudice to defendant resulted. 

 Defendant argues that following the substitution of counsel, the denial of his 

request for a reporter’s transcript of the trial proceedings “served to guarantee that he 

would not have effective representation for his new trial motion and [the] sentencing 

proceedings.” He asserts that without the transcript “[s]uccessor counsel could not 

properly investigate potential grounds for a new trial motion or adequately argue the ones 

identified in the declaration attached to appellant’s new trial motion.” The result, 

complains defendant, was a “total deprivation” of his “Sixth and Fourteenth Amendment 

right to the assistance of counsel at critical stages of the criminal proceedings against 

him.” He requests that we reverse the judgment and remand the matter “to the trial court 

for further new trial motion and sentencing proceedings conducted with the benefit of full 

trial transcripts.” 

I. Defendant’s Right to Effective Assistance of Counsel. 

 We commence our review by delineating the settled principles that govern 

defendant’s claim of constitutionally inadequate representation. (In re Lucas (2004) 33 

Cal.4th 682, 721.) “To establish a claim of inadequate assistance, a defendant must show 

counsel’s representation was ‘deficient’ in that it ‘fell below an objective standard of 

reasonableness . . . under prevailing professional norms.’ [Citations.] In addition, a 

defendant is required to show he or she was prejudiced by counsel’s deficient 

representation. [Citations.] In determining prejudice, we inquire whether there is a 

reasonable probability that, but for counsel’s deficiencies, the result would have been 

more favorable to the defendant.” (People v. Frye (1998) 18 Cal.4th 894, 979.) “A 

reasonable probability is a probability sufficient to undermine confidence in the 
outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 

13 Cal.4th 552, 561.) 

 In addition, the defendant must affirmatively establish that counsel’s actions or 

omissions were not based on a rational tactical reason. (In re Hill (2011) 198 

Cal.App.4th 1008, 1016.) “ ‘ “[If] the record on appeal sheds no light on why counsel 

acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation,” the claim on appeal must be rejected.’ [Citations.]” (People v. Mendoza 

Tello (1997) 15 Cal.4th 264, 266.) Where the record is silent as to the reasons for 

particular actions of trial counsel, an appeal is not the proper vehicle for determining 

competency. (People v. Wilson (1992) 3 Cal.4th 926, 936.) “ ‘Because the appellate 

record ordinarily does not show the reasons for defense counsel’s actions or omissions, a 

claim of ineffective assistance of counsel should generally be made in a petition for writ 

of habeas corpus, not on appeal.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 

728–729.) 

 We agree with defendant that the constitutional right to competent representation 

applies at all critical stages of a criminal action in which the substantial rights of a 

defendant are at stake, including the presentation of a new trial motion and sentencing 

proceedings. (See People v. Sanchez (2011) 53 Cal.4th 80, 90–91;People v. Crayton

(2002) 28 Cal.4th 346, 362; People v. Smith (1993) 6 Cal.4th 684, 695; People v. Bauer

(2012) 212 Cal.App.4th 150, 155.) We also know from the record that the trial court 

granted defendant’s Marsden motion, and appointed new counsel to present the new trial 

motion and represent defendant at the sentencing hearing. 

 The focus of our inquiry, then, is upon weather the failure of the trial court to 

provide substitute counsel with a reporter’s transcript of the trial caused the 

representation associated with presentation of the new trial motion to fall below an 
objective standard of reasonableness. We must further determine if defendant suffered 

prejudice as a result of counsel’s lack of access to the transcript. 

II. Defendant’s Motion for a New Trial. 

 Our assessment of the propriety of the trial court’s denial of defendant’s request 

for a reporter’s transcript also implicates the standards that govern new trial motions in 

the context of the present case. As the trial court recognized, “Although ineffective 

assistance of counsel is not one of the statutory grounds for granting a new trial, the issue 

may nonetheless be asserted as the basis for a motion for new trial.” (People v. Reed

(2010) 183 Cal.App.4th 1137, 1143.) In order to prevail on a motion for a new trial 

alleging ineffective assistance of counsel, the defendant must show that counsel’s 

deficient performance withdrew a potentially meritorious defense or otherwise prejudiced 

his case to the extent that the trial cannot be relied on as having produced a just result. 

(People v. Earp (1999) 20 Cal.4th 826, 870; People v. Fosselman (1983) 33 Cal.3d 572, 

583–584.) The granting or denial of a motion is a matter within the sound discretion of 

the trial court, and in determining whether there has been a proper exercise of discretion 

on such motion, each case must be judged from its own factual background. (People v. 

Soojian (2010) 190 Cal.App.4th 491, 517.) 

III. Defendant’s Right to a Trial Transcript. 

 We recognize that equal protection principles require an indigent criminal 

defendant to be furnished with a free reporter’s transcript of prior proceedings if the 

transcript is needed for proper appellate review or for an effective defense. (Griffin v. 

Illinois (1956) 351 U.S. 12, 18–19; Britt v. North Carolina (1971) 404 U.S. 226, 227–

230.) The rule seeks to ensure that an indigent defendant receives “the basic tools of an 

adequate defense or appeal, when those tools are available for a price to other 

[defendants].” (Britt, supra, at p. 227.) Two factors were identified in Britt as relevant to 

the determination of need: (1) the value of the transcript to the defendant in connection 
with the appeal, and (2) the availability of alternative means to fulfill the same function 

as the transcript. (Ibid.) 

 The absolute constitutional right of an indigent criminal defendant to a free 

reporter’s transcript for an appeal does not extend to other stages of criminal proceedings. 

For purposes other than pursuing an appeal, a “free transcript is a privilege committed to 

the discretion of the trial judge.” (United States v. Banks (M.D. Pa. 1974) 369 F.Supp. 

951, 953; see also United States v. MacCollom (1976) 426 U.S. 317, 325; People v. 

Hayden (1994) 22 Cal.App.4th 48, 55; In re Darrell T. (1979) 90 Cal.App.3d 325, 333.) 

An indigent defendant preparing a new trial motion “is not entitled, as a matter of 

absolute right, to a full reporter’s transcript of his trial proceedings . . . .” (People v. 

Lopez (1969) 1 Cal.App.3d 78, 83; see also People v. Markley (2006) 138 Cal.App.4th 

230, 241; People v. Bizieff (1991) 226 Cal.App.3d 1689, 1700.) 

 Instead, a transcript must be furnished for a new trial motion only when the 

defendant makes a showing that the requested transcript is necessary for effective 

representation or to properly present and support arguments asserted in the new trial 

motion. (People v. Markley, supra, 138 Cal.App.4th 230, 241; People v. Bizieff, supra, 

226 Cal.App.3d 1689, 1700–1702.) A trial court “may properly deny a request for free 

transcripts to prepare a motion for new trial where the indigent defendant fails to show a 

particularized need for transcripts.” (People v. Bizieff, supra, at p. 1702; see also People 

v. Hosner (1975) 15 Cal.3d 60, 64.) The necessity of the transcript for the preparation of 

an effective motion for a new trial is not presumed, but rather “the defendant must 

demonstrate specific need.” (People v. Markley, supra, at p. 242.) “The court must 

decide each case on its own facts and circumstances in determining whether the 

defendant has made a sufficient showing of need” for the transcript. (Id. at p. 241.) 

 A significant factor in the case before us is that new counsel, unfamiliar with the 

just-concluded trial, had been appointed to present the new trial motion for defendant. 

Even so, for several reasons we find that defendant failed to make the requisite showing 
of a particularized need for the transcript to secure effective representation. First, the 

reasons presented in support of the very comprehensive new trial motion related almost 

exclusively to former counsel’s omissions at trial: failure to offer proof that Marcel 

Williams was not acquainted with defendant and was coerced by the interrogator into 

giving a statement to the police; failure of counsel to produce alibi evidence and 

testimony that defendant was not an occupant of 1425 - 51st Avenue on the date of the 

shooting; failure to produce a witness to testify that Darnell Craig was seen with the 

murder weapon before the shooting; failure to more effectively show that Chaendra Men 

was angry with defendant and therefore lacked credibility as a witness; the failure to 

inquire into police “suggestions” to Angelica Mourning during interviews with her; and, 

failure to present additional evidence on the trajectory of the bullet that struck the victim, 

the DNA results, and the victim’s statement to the police at the scene of the shooting.3

 

These assertions of incompetence of counsel were effectively presented without benefit 

of the trial transcript, to a judge who had intimate knowledge of both the evidence offered 

at trial and former counsel’s performance. The transcript was not of critical value to 

defendant’s claims of lack of investigation by counsel and failure to present further 

evidence. 

 Also, alternative means for gathering the information necessary to support the new 

trial motion were available. None of the proffered bases for granting a new trial were 

dependent entirely on reference to the trial transcript. Defendant’s substitute attorney 

was not precluded from discussing with both defendant and former counsel the evidence 

presented at trial and the reasons for the claimed deficient representation. Thus, 

defendant has failed to demonstrate a particularized need for the transcript. 

 Finally, this court, with a full transcript of the trial available to us as part of the 

record on appeal, can now assess the claims of incompetence of counsel in the context of 

 

3

 Defendant also challenged counsel’s decision to essentially concede that he was present at the 

scene of the shooting, but argue that Craig was the shooter. 
the motion for new trial. Our examination of the record persuades us that defendant’s 

assertions of ineffective assistance of counsel are either not sustained, fall into the realm 

of tactical decisions, or fail for lack of a showing that defendant was prejudiced by 

counsel’s representation. The totality of the evidence that proved defendant’s guilt of the 

murder came from diverse sources that included both convincing physical evidence and 

independently corroborated testimony from several witness, and was quite 

overwhelming. The failure to provide defendant with the trial transcript did not deprive 

him of effective assistance of counsel, and was harmless under any standard. Under the 

facts presented here, the trial court did not commit prejudicial error by denying 

defendant’s request for the transcript. 

 Accordingly, the judgment is affirmed. 

__________________________________

Dondero, J. 

We concur: 

__________________________________ 

Margulies, Acting P. J. 

__________________________________ 

Banke, J.