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The People v. Wayne Albert Caskey


September 13, 2011


(Super. Ct. No. 07F04046)

The opinion of the court was delivered by: Nicholson ,j.

P. v. Caskey



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Wayne Albert Caskey of first degree murder (Pen. Code, §§ 187, subd. (a), 189)*fn1 and found that he intentionally and personally used a firearm and caused death (§ 12022.53, subd. (d)).*fn2 He was sentenced to state prison for 50 years to life.*fn3

On appeal, defendant contends (1) the trial court improperly excluded evidence that witness Jaspreet Hayer was pregnant, (2) the court erred when it refused to give his requested pinpoint instruction on third party culpability, and (3) his trial counsel rendered ineffective assistance in two separate respects. We affirm the judgment.


On June 11, 2006 (hereafter "June 11"), Gary Brooks's dead body was found on the floor of his business, Brooks Electric.

The previous day (June 10, 2006; hereafter "June 10"), Brooks and defendant had been seen having a lengthy discussion while seated in defendant's red and white sport utility vehicle (SUV). Brooks's friend, Brian Mitchell, and Brooks's girlfriend, Jaspreet Hayer, saw Brooks in the SUV with defendant. By the time Mitchell approached them, Brooks and defendant were standing outside the SUV having a private conversation. The last time Mitchell spoke to Brooks was at 2:30 a.m. on June 11.

In the early evening hours of June 10, Francisco Lopez saw Brooks loading a machine into defendant's SUV. This occurred in the driveway of Don Newcomb's automotive repair shop, which was next to Brooks Electric.*fn4 Kenneth Massey helped defendant and Brooks load some welders into defendant's SUV. Massey saw that defendant had Newcomb's .45-caliber Glock handgun in his waistband. Defendant was talking face-to-face to Brooks while Brooks was securing the welders in the SUV. Two gunshots were heard after defendant walked around the front of his SUV. Immediately afterward, Lopez noticed two holes in the door of Newcomb's shop. Defendant then returned to Brooks and continued the conversation. Hours later, Lopez saw Brooks leaving with defendant in defendant's SUV.

On June 11, at 2:24 a.m., Vimal Singh drove his white pickup truck to Brooks Electric. He met up with Brooks in the warehouse portion of the shop and they smoked some methamphetamine. About 20 to 30 minutes later, two Fijian men came into the shop; more methamphetamine was smoked. When Singh left the shop shortly thereafter, the Fijians were still there. Singh drove away but returned at 3:25 a.m., so he could smoke more methamphetamine. When he returned, the Fijians' car was no longer there, but Singh saw the taillights of a silver SUV parked at the street corner.

Singh drove by the SUV to see who was inside. Unable to see inside the SUV clearly, Singh initially parked in front of the SUV but then turned around and parked in front of Brooks Electric. The SUV left the area. A few minutes after Singh turned off his truck's engine, he saw two masked men with rifles enter the gated entrance for Brooks Electric. Shortly after Singh lost sight of the two men, he heard gunshots. Within a minute after the shots, one of the masked men emerged from the building and raised his rifle at Singh. Singh restarted his truck, ducked his head, and quickly drove away. As he did so, Singh heard a series of gunshots and felt one of his tires go flat. Two circular holes were later found in his left rear tire.

Singh's wife was employed by a nearby private security company. Singh parked his truck in front of the company's front gate and hid until daybreak when he contacted a security officer who summoned Singh's wife to come pick him up. Video captured by security cameras at a nearby facility conformed to Singh's recollection of the incident.

Aman Kumar and Avenal Datt stopped by Brooks Electric sometime during the early morning hours of June 11. They smoked marijuana with Brooks and then left. When Kumar and Datt returned at approximately 6:00 a.m. for more marijuana, Elizabeth Morales (whose boyfriend owned a nearby auto body shop) also was approaching Brooks Electric. Morales had a short conversation with Datt before he got back into the car and drove away with Kumar.

Morales went into the shop looking for Brooks. She found his body on the office floor. Because the telephone in the office was not working, Morales used her cellular telephone to call 911. She had not heard any gunshots that morning.

In response to the 911 call, Sacramento County Sheriff's deputies arrived shortly before 7:00 a.m.

As noted, Newcomb owned an automotive repair shop next to Brooks Electric. Newcomb was romantically involved with Hayer at the time, and he had suspicions that Hayer was also involved with Brooks. Hayer was, in fact, in a relationship with both men. Newcomb denied that there were any jealous feelings between him and Brooks regarding Hayer. Brooks and Newcomb appeared to get along.

On the morning of June 10, Newcomb saw Brooks when he lent Brooks a trailer. During the day, Newcomb worked on a car at a friend's shop. Later, he met Hayer at a friend's house and had dinner. Newcomb and Hayer returned to Newcomb's shop to sleep at around 1:00 a.m. on June 11. Newcomb saw Brooks again when Newcomb entered the gate of his shop.

When Newcomb and Hayer arrived at Newcomb's shop, they saw that Massey was asleep on the couch in the downstairs office. Newcomb and Hayer proceeded to smoke methamphetamine. Both then took showers. Before going to bed, Newcomb and Hayer discussed possibly having heard two sets of gunshots.

Newcomb's shop was searched a few hours after Brooks's body was discovered. Deputies found two .45-caliber shell casings near the door to Newcomb's shop. Two corresponding holes were found in the upper part of the door.

Two or three months prior to the murder, Newcomb discussed going into business with defendant and Kovac. The discussions were not ongoing because Newcomb was being evicted from his shop. After the murder, Newcomb discovered that his .45-caliber handgun was missing.

Kovac was the registered subscriber for three cellular telephones (hereafter phones A, B, and C). The account was established in March 2006 and discontinued in July 2006. When asked by a detective whether he had telephone numbers for defendant and Kovac, Newcomb gave phone B's number for defendant and phone C's number for Kovac.

On June 11, phone B called Derek Zeller five times: at 3:27 a.m. (activating cell tower 357, antenna 2), 3:30 a.m. (activating cell tower 102, antenna 4), 3:31 a.m. (activating cell tower 102, antenna 4), 3:59 a.m. (activating cell tower 42, antenna 2), and 4:00 a.m. (activating cell tower 42, antenna 2)

That same day, phone A called Zeller twice: at 3:28 a.m. (activating cell tower 357, antenna 2) and 3:30 a.m. (activating cell tower 47, antenna 2).

An expert witness was unable to tell whether the two phones, which appeared to be moving through the cellular network, were traveling together. The expert did not discuss where phone C, which Newcomb attributed to Kovac, was located at the time of the calls on phones A and B.*fn5

Defendant was introduced to Massey as Kovac's brother. On June 10, Massey was selling methamphetamine at Brooks's and Newcomb's shops, an activity that defendant did not appreciate. The morning after the murder, Massey saw that Brooks had tried to contact him on his cell phone at around 3:00 a.m.

Several .223-caliber rifle round casings were found on the street near Brooks Electric, in its driveway, and in the outer portion of the office suite where Brooks was found. These shells were most probably fired from the same gun.

An autopsy revealed that Brooks had suffered three gunshot wounds: one to the head and two to the upper back and chest. A rifle-type bullet was recovered from his body.

In December 2006, Kovac's friend, Ryan Kern, went to Kovac's residence; defendant was already present. At some point, Kern and defendant left the residence and drove around in Kovac's car. Defendant brought a .45-caliber handgun and an Uzi with him when he got in the car. During the outing, defendant told Kern that, in the summertime, he had gone with Kovac to the downtown area to "take care of somebody," and when Kovac dropped his gun, defendant "had to take care of the individual."

Kovac's residence was searched after the murder. The search yielded a radio scanner capable of receiving emergency frequencies, two gun cleaning kits, a fully loaded .45-caliber magazine, and numerous rounds of .45-caliber ammunition.



Defendant contends the trial court erred when it excluded his proffered evidence that Hayer was pregnant at the time of the murder. We disagree.


At an Evidence Code section 402 hearing in December 2008, the parties discussed whether defendant could introduce evidence that Hayer was pregnant at the time of the murder. Hayer testified at the hearing that she underwent pregnancy tests, which were positive, three weeks after the murder. This was the point at which she "first actually knew" that she was pregnant. Prior to the murder, she "had the morning sickness" but she "assumed [she] was . . . just getting sick," and she "never really . . . looked further into it." Following the murder she "started gaining some weight," "missed [her] menstrual period," "took [herself] out of denial," took a home pregnancy test, and saw a doctor who confirmed the pregnancy.

On the afternoon preceding the murder, a person named Dane, with whom Hayer was not familiar, asked Hayer if she was pregnant. Hayer felt uncomfortable and became emotional because she was embarrassed. Hayer had not discussed her pregnancy with anyone until after the murder. The pregnancy was not noticeable because she had been using drugs at the time and had not put on any weight. When questioned about why Dane would wonder whether she was pregnant, Hayer speculated that Brooks may have "said something to him." She did not elaborate on what Brooks might have believed or suspected.

The defense theorized that Newcomb suspected that Hayer was pregnant and "that if she had this child[,] his relationship with Ms. Hayer is over and he had to take care of it and he did." Defendant's trial counsel joined in Kovac's counsel's argument that, although Hayer "denied ever letting . . . Mr. Newcomb know that she was or might be pregnant," there could still be an argument that "even though there is no direct evidence that . . . Ms. Hayer advised Mr. Newcomb . . . of her pregnancy, at least circumstantially . . . the jury could have inferred that he, in fact, did know that she was pregnant or might have known she was pregnant." Defendant's counsel added that, during an interview with a defense investigator, Hayer initially answered "yes" when asked whether Brooks knew of the pregnancy. However, when questioned further, Hayer explained to the investigator that she had not told Brooks specifically that she was pregnant.

The prosecutor countered that what Hayer had "never been equivocal about in any way is that she didn't even know she was pregnant." The prosecutor added: "In any event, never once does anybody say that Don Newcomb was told, was aware, . . . should have been aware, had any way of being aware, other than this sort of speculation by someone named Dane potentially and, you know, Mr. Brooks saying something to her about it or talking about it, but there is no evidence that Mr. Newcomb knew. And, in fact, he said he didn't know. [S]he consistently has said all along that she didn't tell him that. They never talked about it that night or anything along those lines. [¶] I think her testimony in the [Evidence Code section] 402 [hearing] was pretty clear that it wasn't readily apparent necessarily that she was pregnant as opposed to maybe putting on a little weight. So I think the Court's ruling this morning that there was just not enough nexus there to input [sic] this knowledge to Mr. Newcomb was correct and that's it."

The trial court ruled that Hayer "would not make reference to the pregnancy" because "there does not appear to be any foundation for her to make that statement in terms of what other people did or did not speculate about." The court explained: "More specifically, Ms. Hayer testified she didn't tell Mr. Newcomb. She didn't tell anybody about it. She herself wasn't even aware of the fact she was pregnant. She was equivocal about whether she had some thoughts she might or might not be [pregnant] but didn't pay a lot of attention to it. She didn't do any formal testing until approximately three weeks after Mr. Brooks was murdered. At best one can say that one might speculate that someone saw her and one might guess that she might be pregnant because she was involved in a relationship that one might speculate that others knew about and that is as far as one can go but it doesn't seem to meet the test of relevance in this case."


"Any relevant evidence that raises a reasonable doubt as to a defendant's guilt, 'including evidence tending to show that a party other than the defendant committed the offense charged,' is admissible. [Citations.] But 'evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.' [Citation.] Relevant evidence may be excluded under Evidence Code section 352 if it creates a substantial danger of undue consumption of time or of prejudicing, confusing, or misleading the jury. [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 577-578, quoting People v. Hall (1986) 41 Cal.3d 826, 829, italics added.)

Because "'evidence of mere motive or opportunity to commit the crime in another person'" does not "'suffice to raise a reasonable doubt about a defendant's guilt,'" it follows that the foregoing rule does not make such evidence admissible. (People v. Avila, supra, 38 Cal.4th at p. 578.)

In this case, the evidence of Hayer's pregnancy would have supplied a possible motive for Newcomb to commit the murder, but nothing more. The Evidence Code section 402 hearing produced no direct or circumstantial evidence linking Newcomb to "'the actual perpetration of the crime.'" (People v. Avila, supra, 38 Cal.4th at p. 578.) Nor did the fact Newcomb "was called as a percipient witness who was in the vicinity when the crime occurred" tend to link him to the perpetration of the murder. Because the evidence did not raise a reasonable doubt of defendant's guilt, it was not made admissible by Avila and its antecedents. Thus, the court had no occasion to consider whether to exclude the evidence pursuant to Evidence Code section 352. (See People v. Hall, supra, 41 Cal.3d at p. 833.)

People v. Avila, supra, 38 Cal.4th 491, is binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Even if a showing of "opportunity, ability and motive" is sufficient for admissibility under the Ninth Circuit rule on which defendant relies (United States v. Crosby (9th Cir. 1996) 75 F.3d 1343, 1347), a violation of that rule is not constitutional error (id. at p. 1349), and this court may not apply it in lieu of Avila.

Because the proffered evidence did not raise a reasonable doubt of defendant's guilt and no other theory of relevance appears, the exclusion of the evidence did not violate defendant's state or federal constitutional rights to present a defense. (See Crane v. Kentucky (1986) 476 U.S. 683, 690-691 [90 L.Ed.2d 636, 645]; People v. Jenkins (2000) 22 Cal.4th 900, 1014-1015.)


Defendant contends the trial court erred when it refused to give his pinpoint instruction on third party culpability and when it failed to modify CALCRIM No. 373 to exclude Newcomb from its reach. Neither point has merit.


Near the close of trial, the court and counsel discussed several jury instructions including CALCRIM No. 373. Defendant's counsel stated he had no concerns or objections relating to the instruction.

CALCRIM No. 373, as given, stated: "The evidence shows that other persons may have been involved in the commission of the crime charged against the defendants. There may be many reasons why someone appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendants on trial here committed the crime charged."

After joint discussion of requested jury instructions, defendant's counsel remarked that both the prosecution and the defense had "offered pinpoint instruction[s] on third party culpability," and that the one offered by the defense was "appropriately given," "even though it restates the burden of proof."

The defense instruction stated: "The People have the burden to prove beyond a reasonable doubt that the defendant is the person who committed the crime. The defendant does not have to prove that another person committed the crime. You have heard evidence that another person may have committed the crime. [¶] If after considering all the evidence, you have a reasonable doubt that the defendant was the one who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty."

The trial court considered the proposed instructions and stated: "It appeared to the Court in reading each of the two instructions that what they did was restate what we already do have in the reasonable doubt instruction which I think is what [defense counsel] was already commenting on. [¶] I also think there was at least some other language in a pinpoint that was offered by the Defense which actually, in effect, had the Court implicitly making a determination with regard to the credibility of the evidence that has been offered and the Court declines to do that. [¶] So at this point in time, . . . the Court is declining to provide both pinpoints as offered by either the Defense or the Prosecution."


Our Supreme Court has "suggested that 'in appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]. . . . Accordingly, a trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions." (People v. Bolden (2002) 29 Cal.4th 515, 558-559 (Bolden), italics added.)

In this case, the requested instruction related the reasonable doubt standard to the element of defendant's identity as the perpetrator. The instruction would be required only if its point -- that the prosecution has the burden on the identity issue -- would not be readily apparent to the jury from the remaining instructions. (Bolden, supra, 29 Cal.4th at p. 559.)

In this case, the "remaining instructions" (Bolden, supra, 29 Cal.4th at p. 559) included CALCRIM Nos. 103 and 220, which told the jury in relevant part: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. . . . [¶] . . . [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty."

Because the evidence bearing upon identity was almost entirely circumstantial, CALCRIM No. 224 was particularly relevant to the jury's task. This instruction provided in relevant part: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt."

CALCRIM No. 200 told the jury in part to "[p]ay careful attention to all of these instructions and consider them together." On appeal, we presume the jury did so. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

In this case, the point of the requested instruction -- that the prosecution had the burden on the identity issue -- would have been readily apparent to the jury from the foregoing instructions. (Bolden, supra, 29 Cal.4th at p. 559.) Thus, refusal of the requested instruction was not error.

Defendant claims the trial court should not have given CALCRIM No. 373 in its unmodified form because Newcomb, who might have been prosecuted for the crime, testified at trial. (Citing, e.g., People v. Lawley (2002) 27 Cal.4th 102, 162.) However, defendant's failure to request that the instruction be limited to persons other than Newcomb forfeits any assignment of error. (See People v. Sully (1991) 53 Cal.3d 1195, 1218.)

Defendant disagrees, claiming he preserved the point because his requested instruction "was essentially . . . a modified version of CALCRIM [No.] 373." However, the requested instruction did not alert the trial court to the asserted need to modify the pattern CALCRIM instruction so as to exclude Newcomb from its reach. Thus, the court had no opportunity to avert the possible error and, in any event, the issue is forfeited on appeal.

Defendant claims the use of an unmodified CALCRIM No. 373 was prejudicial because it "sent a message to the jury that Newcomb's culpability was not of any importance, and instead the jury should merely focus on [defendant's] culpability . . . ." (Italics added.) We disagree.

Like its predecessor, CALCRIM No. 373 "does not tell the jury it cannot consider evidence that someone else committed the crime. [Citation.] It merely says the jury is not to speculate on whether someone else might or might not be prosecuted." (People v. Farmer (1989) 47 Cal.3d 888, 918, disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, italics omitted.) Thus, the forfeiture and consequent use of the pattern instruction were not prejudicial.


Defendant contends his trial counsel rendered ineffective assistance when he (1) elicited highly damaging and prejudicial testimony during his cross-examination of prosecution witness Ryan Kern about the December 2006 outing with the handgun and the Uzi, and (2) impeached Jaspreet Hayer regarding her heavy methamphetamine use during his cross-examination that followed direct examination by Kovac. Neither claim has merit.

"'"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" [Citation.]' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 418; fn. omitted.)

"'"[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.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Ryan Kern

During cross-examination by defendant's trial counsel, Kern testified that defendant was carrying two weapons when he and Kern left in Kovac's car in order to trail some individuals. Kern stated that defendant was hanging out of the car's "skylight" (sunroof) near a busy restaurant and wanted to shoot the restaurant or the place. Kern pulled into a parking lot across the street from the restaurant. Defendant got out of Kovac's car, walked up to another car, slashed the valve stem of at least one tire, returned to Kovac's car, and then remained within eyesight of the sabotaged car. Defendant and Kern stayed in the parking lot for 15 to 30 minutes. No one approached Kern and, to his knowledge, no police were called.

Defendant's trial counsel next established that Kern was testifying under a grant of immunity and that he hoped to get consideration for a lessened prison sentence in some pending federal cases.

In his summation, trial counsel argued: "Ryan Kern was a speed-addicted felon doing bad stuff, scared, he wanted to avoid those 60 years [in federal prison]. He had just enough information, either from reading [a newspaper] himself or -- don't forget that he admitted to you that he got the information from Laurie Watkins, his girlfriend, on a telephone call from jail -- or, anyway, between him and Ms. Watkins. His information was inaccurate and incomplete. He made it up. There is no reason to believe Ryan Kern."

Trial counsel was not asked to explain the purpose of the questions that defendant now claims constitute ineffective assistance. But at least one satisfactory explanation appears: by eliciting the bizarre scenario of defendant hanging out of a car sunroof, desiring to shoot at a busy restaurant for no apparent reason, sabotaging a car in a nearby parking lot, and remaining within eyesight of the sabotage for 15 to 30 minutes rather than secreting himself from any responding officers, trial counsel was supporting his argument that Kern had "made . . . up" his testimony, including defendant's near confession of the murder, for the purpose of reducing the time Kern would spend in federal prison.

Excluding Kern's bizarre testimony from evidence, as defendant suggests in his reply brief, would have deprived trial counsel of a potent weapon for attacking defendant's almost confession. The claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

Jaspreet Hayer

Co-defendant Kovac called Hayer as a defense witness. Hayer was with Newcomb at his shop at the time of the shooting.

Hayer testified that she heard gunfire and at some point Newcomb went outside. She initially testified that Newcomb was present near her when she heard the second set of gunshots. However, when asked why she had told detectives that she was calling for Newcomb, after she heard the second set of shots, and he was not responding, Hayer testified that she could not remember whether Newcomb was with her.

Hayer testified that, when Newcomb returned five to 10 minutes later, she asked him where the shots had come from and he said that they were "probably shots from over -- over the railroad tracks. I mean, we have had those like the past like couple of weeks prior to that, just like random shots."

Kovac's counsel impeached this answer with Hayer's statements in a police interview. Counsel asked, "And, in fact, [Newcomb] said, you know, what you heard -- he is talking to you. What you heard, it wasn't shots, it could have been a bunch of different things." Hayer agreed with counsel's suggestion.

Kovac's counsel established that, when Newcomb went outside, he was wearing a black shirt, but when Newcomb returned after the second set of shots, he was not wearing the shirt.*fn6

In cross-examination by defendant's trial counsel, Hayer testified that she had falsely told investigating detectives that she and Newcomb had not had sex shortly before the murder, because the truth was "embarrassing" for her. She denied that it had been Newcomb's idea to tell this untruth.

Hayer confirmed her prior statements to a defense investigator that she had been a regular methamphetamine user in the months before the murder and had used it on a daily basis. However, she denied telling the investigator that she had been "quite messed up" on the weekend of the murder due to her methamphetamine use. She explained that she had returned to her parents' house for two days prior to the murder and had not used methamphetamine during that time. She resumed her use on the evening prior to the murder.

The record does not reveal trial counsel's reasons for eliciting the foregoing testimony. Defendant claims counsel's "decision to attack the credibility of [his] own most favorable witness was unreasonable." However, had Hayer confirmed counsel's suggestion that it had been Newcomb's idea to lie about sex, counsel could have argued that Newcomb had also lied to Hayer: he had falsely suggested that she had not heard gunshots, i.e., his own.

Similarly, had Hayer accepted counsel's suggestion that she had been "actually quite messed up" due to methamphetamine use, counsel could have cast further doubt upon her assertions that Newcomb had been present during the second set of gunshots and that he had suggested that she had heard shots from over the railroad tracks (as opposed to having heard no shots).

As the Attorney General notes, defense counsel could also have challenged Hayer's testimony that the relationship between Brooks and Newcomb had changed only "[a] little bit" and that they were "still friends" even though Hayer was dating both men. Thus, this is not a case in which "there simply could be no satisfactory explanation" for defense counsel's questions. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) The claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (Id. at pp. 266-267.)


Defendant contends that, even if none of the errors discussed in parts I through III requires reversal when considered in isolation, reversal is required when the errors are viewed cumulatively. Because we have rejected each of the foregoing claims of error, we also reject the claim of cumulative error.


The judgment is affirmed.

We concur: RAYE , P. J. BUTZ , J.

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