(Super. Ct. No. SF109322A)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Deandre Davis was convicted of shooting at an occupied motor vehicle (Pen. Code, § 246),*fn1 discharging a firearm from a vehicle (§ 12034, subd. (d)), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury also found true that defendant personally inflicted great bodily injury on his victim (§ 12022.7) and intentionally and personally discharged a firearm (§ 12022.53, subd. (d)). Sentenced to an aggregate term of 32 years, plus eight months to life in state prison, defendant appeals his conviction.
On appeal, defendant contends he received ineffective assistance of counsel and, but for counsel's errors, he would not have been convicted of the charges against him. Defendant also contends the trial court erred in failing to hold a Marsden*fn2 hearing when he moved for a new trial based on counsel's ineffective assistance. Finding neither of defendant's claims to have merit, we affirm the judgment.
Around 11:20 p.m. on August 23, 2008, Pedro Munoz was driving home with his father, Joseph, and his brother, Michael. Joseph was driving Michael's gold Chevy sedan, Michael was seated in the front passenger seat, and Pedro was sitting behind Michael. The Chevy's windows were rolled down; they stopped at a red light and a green Jeep Commander stopped in the lane next to them. Pedro and Michael looked over and saw defendant seated behind the driver. The driver, Robbyn Archer, was laughing and pointing at the Chevy. Defendant's window also was rolled down; he stared at the Munozes. Pedro asked defendant, "What's up?" Before defendant could answer, the light turned green and both vehicles drove away. Archer pulled the Jeep alongside the Chevy; defendant pointed a handgun at the Chevy and fired a single shot, striking Pedro on the side of his face. Archer attempted to flee but Joseph "rammed" the rear end of the Jeep in an effort to stop her. Joseph then took Pedro to the hospital, where Pedro underwent surgery for the gunshot wound to his face.
Stockton Police Sergeant Richard Ridenour was on duty driving a marked patrol vehicle when he saw the smoke created by the impact between the Jeep and the Chevy. He made a U-turn, saw the Chevy pull to the side of the road, and saw the Jeep speed away from the scene. Ridenour notified fellow officers of the chase as he pursued the Jeep. When the Jeep stopped, Ridenour saw two black men exit from the backseat. One of the men wore a white T-shirt and jeans, while the other wore a red T-shirt with a black jacket. The man in the red T-shirt, later identified as defendant, jumped a fence and ran away. Ridenour tried to follow defendant but lost sight of him.
Officer Robert Wong responded to Ridenour's call. Taking a position on the perimeter of the scene, Officer Wong saw a black man wearing a white T-shirt and jeans, who he later identified as Omarea McPherson, walking towards him. Wong took McPherson into custody and found a live round for a 12-gauge shotgun in McPherson's front pocket and a pair of rubber gloves in McPherson's rear pants pocket. As he was putting McPherson into the back of his patrol car, Wong saw defendant running at a full sprint through a field toward a shopping center; Wong notified Ridenour. Ridenour went to the shopping center parking lot, where he found defendant. Ridenour told defendant to stop but defendant took off running between the parked cars. Defendant appeared to be getting tired, so Ridenour got out of his vehicle and drew his Taser. Ridenour ordered defendant to stop; defendant obeyed, Ridenour detained him, and patted him down. Ridenour did not find any weapons, ammunition, or gloves on defendant.
Ridenour gave defendant his Miranda rights, then asked defendant where he was going and what he was doing. Defendant said he was just walking home from a friend's house and did not know anything about a green Jeep. Ridenour saw that defendant was carrying a black, hooded sweatshirt that had leaves on it. Law enforcement later found a loaded handgun in a pile of bushes and leaves near the area where defendant jumped out of the Jeep.
Defendant was subsequently charged with premeditated attempted murder (§§ 664/187, subd. (a)), shooting at an occupied motor vehicle (§ 246), discharging a firearm from a vehicle (§ 12034, subd. (d)), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). It was further alleged that defendant personally inflicted great bodily injury on his victim (§ 12022.7) and intentionally and personally discharged a firearm (§ 12022.53, subd. (d)). Defendant pleaded not guilty to the charges and denied the enhancement allegations.
The first jury trial ended in a mistrial when the jury could not reach a verdict on any count. The second jury found defendant guilty of shooting at an occupied motor vehicle, discharging a firearm from a vehicle, and being a felon in possession of a firearm. The jury also found true the sentencing enhancement allegations. The jury could not reach a verdict on the charge of premeditated attempted murder. Accordingly, the trial court declared ...