(Super. Ct. No. 09F00884)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Austin Billy Willis III was convicted of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a); statutory citations that follow are to the Penal Code unless otherwise specified), personally discharging a firearm at an occupied vehicle (§ 246) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). It was also found true defendant had a prior strike conviction (§§ 667, subds. (a)-(d), 1170.12, subd. (b)) and, as to the attempted murder charges, had personally used and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)). Defendant was sentenced to an aggregate determinate prison term of 23 years eight months, plus 50 years to life. His ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offenses and the proceedings in the trial court.
On January 17, 2009, at 2:30 a.m., defendant got into a fight at a fast food restaurant drive-thru with Alexander C. and Ulises L. Alexander C. and Ulises L. were holding defendant and punching him. They punched him in the face and defendant fell to the ground. Eventually when the pair let defendant up, he went back to his car, reached in to release the hood, stated he had a gun in his car and yelled "I'm going to kill you." Alexander C. and Ulises L. got back in their car and drove away. Defendant followed them, driving a silver Chevy Impala. Alexander C. tried to evade defendant, but defendant continued following them. Eventually Alexander C. and Ulises L. heard what they later identified as gunshots hitting the car.
After the shooting, defendant stopped following Alexander C. and Ulises L. Alexander C. then realized he had been shot. Ulises L. called 9-1-1 and Alexander C. was taken by ambulance to the hospital. Alexander C. had sustained a gunshot wound to the abdomen and required surgery to repair his small intestine.
Alexander C. and Ulises L. and witnesses from the fast food restaurant identified defendant as the person in the fight at the restaurant. However, Alexander C. and Ulises L. could not identify defendant as the shooter. They had not been able to see the driver of the car and they did not see a gun or muzzle flashes. Even so, they recognized the car as the same one defendant had been driving at the restaurant.
Sacramento Police Officer Tom Shrum viewed video surveillance taken from the fast food restaurant, and tracked the Impala to a car rental agency. Shrum was informed that defendant had picked the car up on January 14, 2009, and the car was scheduled to be returned on Saturday January 17, 2009, at 2:00 p.m. When the manager came back to work on Monday, the car was in the lot. Gunshot residue (GSR) testing found a fairly high concentration of GSR in the car, indicating a weapon had either been discharged within the vehicle near the front headliner or a heavily contaminated article had come in to contact with the headliner. The only person to rent the car after defendant and before the GSR testing was done did not own a gun and had not fired one in the car.
Following a jury trial, defendant was convicted of two counts of attempted murder (§§ 664/187, subd. (a)), personal discharge of a firearm at an occupied motor vehicle (§§ 246, 12022.53, subd. (d)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The enhancement allegations that as to the attempted murder charges defendant had personally used and discharged a firearm causing great bodily injury were found true (§ 12022.53, subds. (b)-(d)). In bifurcated proceedings, the court found the prior strike conviction allegation true.
After trial, defendant filed a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) complaining that trial counsel was ineffective in that he did not call a particular witness, Ken A.; did not dispute the evidentiary chain regarding the rental vehicle; refused to file various motions, including a motion to suppress evidence and a section 995 motion; did not challenge the photographic line up; did not communicate with defendant; failed to hire a specialist; had no strategy for the defense; and, refused to let defendant testify.
In response, counsel explained his trial choices. He chose not to call the witness Ken A. because during their investigation of the case, counsel and the defense investigator spoke with several witnesses, including Ken A., and counsel believed Ken A.'s testimony was cumulative to the testimony of the other witnesses. Ken A. was also "semi-hostile" and "not the greatest witness in the world." As to the various motions defendant wanted filed, they were not filed as there were no legal grounds to file them. Counsel stated he communicated with defendant about the strengths and weaknesses of the case, but defendant was frequently unwilling to listen. As to defendant not testifying, counsel had advised defendant not to testify, as his criminal background and history would have impeached him, and counsel did not believe there was any benefit to him testifying. On the record, the court had advised defendant he had the right to testify and defendant affirmed his choice not to testify.
The court denied the Marsden motion, finding counsel's representation "was well above what one would expect of a competent attorney. I thought he was able in fact to do an ...