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People v. Dedmon

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 23, 2020
B291864 (Cal. Ct. App. Jan. 23, 2020)

Opinion

B291864

01-23-2020

THE PEOPLE, Plaintiff and Respondent, v. DEANDRE L. DEDMON, Defendant and Appellant.

Robert A. Werth, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Roberta L. Davis, Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA457310) APPEAL from a judgment of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Affirmed in part, reversed in part, and remanded. Robert A. Werth, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Roberta L. Davis, Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

____________________

Defendant and appellant Deandre L. Dedmon appeals from a judgment following a jury trial in which he was convicted of assault with a semiautomatic firearm, shooting a firearm from a motor vehicle, and discharging a firearm from a motor vehicle at another person. Defendant contends the trial court erred by denying his motion to represent himself, denying his request to testify in narrative form, and requiring him to appear in prison clothing. Defendant also contends, and the Attorney General concedes, that the conviction for shooting from a motor vehicle must be reversed, because it is a lesser included offense of shooting from a motor vehicle at another person. Defendant contends that the trial court should have held a hearing on his ability to pay fines, and that custody credits were not properly calculated. Because the matter must be remanded for resentencing, defendant's arguments concerning ability to pay and the proper calculation of custody credits may be made in the trial court.

We reverse the conviction for shooting a firearm from a motor vehicle and vacate the sentence. The matter will be remanded for resentencing and recalculation of custody, where defendant will have an opportunity to raise any issues relating to defendant's ability to pay fines and fees. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORY

Shooting

Defendant and Chermenita W. had been in a romantic relationship for several years that ended in 2015. In 2017, Chermenita was living at an apartment on the east side of South Berendo in Los Angeles. Defendant stayed with her for a few nights, but they argued and he left. A few days later, on the morning of May 11, 2017, he sent a text message asking to pick up things that he had left at her apartment. Chermenita told him to wait until later, because she was with her son Austen Adkins, his girlfriend Markita Payton, as well as Chermenita's brother and his girlfriend. Defendant called repeatedly during the day, until Chermenita told him around 8:00 p.m. that he could get his things. She hung up on him. Chermenita took defendant's bag with his things outside, accompanied by Adkins and Payton, and stood on the sidewalk. Neighbor Angelica Johnson happened to be outside the apartments as well.

Defendant pulled up across the street driving his white Chevy van, traveling south. Chermenita walked to up to within one-and-a-half feet of the driver's side door of the van and threw defendant's bag through the window to his chest. She told him to leave and not come back. She turned around to walk back toward the apartment. Adkins saw defendant's arm come out of the van holding a gun pointed at Chermenita's back. As she was walking toward the apartment, she heard defendant say, "On God, on God, on God." She began turning back to him, but Adkins grabbed her and tried to shield her. Adkins said, "Mama, he is fixing to shoot you." They dropped next to a black Honda that was parked on her side of the street, approximately 20 feet from the van. Adkins had his back to the van and did not see which direction the shots were fired. Chermenita heard a shot as she struggled to push her son off and see what was happening. She saw defendant's arm extended from the driver's side of defendant's van and three flashes coming from the driver's side of defendant's van as he was driving down the street. She could not see which direction the arm was pointed because the van was moving, but the flashes were toward her. Video of the incident showed the van traveling south as the shots were fired.

The apartment manager, Lashai Vaughn, had been at her window on the third floor at 9:00 p.m. She saw a van speed by that appeared to be dark colored in the night. She saw red sparks flare as four or five gunshots were fired from the driver's side window. Vaughn ran out of the building to check on the other tenants.

One of the bystanders called 911. Chermenita told the 911 operator, "a dude named Deandre Lanell Dedmon just shot at me four times. He's driving a Chevy custom-made . . . van." She described the van and the direction that it was going.

Police officer Roberto Figueroa was on patrol and responded to the call. He found three nine-millimeter shell casings pretty close to the middle of the street, a little closer to the east sidewalk, running south down the street, and was directed to a fourth casing a little more south. Another officer videotaped him marking the locations where the first three shells were found. The officer later marked on a map of the location of the shooting, the location in the street of the four shell casings recovered.

Police officer Denward Chin also responded to the call. The street where the shooting occurred runs north-south, and officers located about three nine-millimeter shell casings just south of the shooting location, lined up one after the other in a north-south fashion in the middle of the street.

Vaughn gave Chin a copy of the surveillance videos for the building. The videos corroborated Vaughn's recollection, but showed a lighter colored van. One video showed an individual walking away from the van, which slowly began to move forward, and then the van suddenly accelerates down the street as gunshots sound. Chermenita and Adkins both identified the van in the video as the one belonging to defendant. In Officer Chin's opinion, based upon the rapidity of the shots fired as reflected in sound from the video, the fact that the shells were found discharged from a gun, and the caliber of the shells, the weapon used was a semi-automatic gun. The officers searched the path in the direction where the witnesses said the gun had been pointed, but did not find bullet strikes.

The next day, Chermenita's neighbor found another nine-millimeter shell casing on the ground near the back tire of the black Honda and gave it to Chermenita. Chermenita gave it to the police. Criminal Proceedings

Defendant was charged in a third amended information with assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), shooting a firearm from a motor vehicle (§ 26100, subd. (d)), shooting a firearm from a motor vehicle at another person (§ 26100, subd. (c)), and attempted murder (§§ 664/187, subd. (a)). In addition, the information alleged defendant personally used a firearm during the assault (§ 12022.5, subd. (a)) and the attempted murder (§ 12022.53, subds. (b) & (c)).

All statutory references are to the Penal Code unless otherwise stated. --------

In August 2017, defendant made a motion to discharge his counsel and represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), which the trial court granted. On December 27, 2017, defendant made an oral motion to relinquish his pro per status and have counsel appointed to represent him. The court granted the motion and appointed attorney Javier Ramirez.

Ramirez later declared that he had an unresolvable conflict and he was relieved. Attorney Dan Factor was appointed to represent defendant on March 2, 2018. The case was called for trial on April 19, 2018. Factor stated that he was not ready. Defendant made a motion to replace his defense counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). He was not communicating with his attorney and had seen his attorney once since the prior court date. Factor stated that he was trying to position defendant to win or mitigate the case, but defendant was a difficult client to work with. Defendant had said at various times that he shot a weapon, did not shoot a weapon, and did not have a weapon. There were two bullet holes in the back of his van, but the bullet holes existed prior to the incident, because Chermenita described them in her interview. There was a conflict between what Factor knew and what the defendant wanted him to present as evidence. Factor surmised that the prior attorney may have declared a conflict for the same reasons Factor was concerned: that there was a conflict between the evidence known to counsel and what defendant wanted counsel to present. Factor raised the question whether any attorney could represent defendant in this situation and suggested letting defendant represent himself, with Factor as his standby attorney. The court noted defendant previously had represented himself and then relinquished that right. Based on the discussion, the court denied the motion.

Factor stated that defendant had mental health and physical issues. At times, defendant's mood progressed from extremely depressed to extremely agitated. They would seem to be making progress in their conversations and defendant was intelligible, then the conversation would shift, and defendant would not make sense. Factor requested a medical examination for mental health issues. A medical order was signed and faxed to the medical unit at the jail.

On April 25, 2018, Factor filed a declaration with the trial court under seal. He explained that defendant said he did not shoot a gun and did not own a gun. The witnesses to the event and the video showed a weapon fired from the driver's window of defendant's vehicle. Defendant wanted a crime scene reconstruction for the location of the shell casings and DNA evidence, but he was not willing to waive time so that the evidence could be obtained. There were bullet holes in the back of his car, but investigation had shown that the bullet holes were present prior to the shooting. Defendant wanted to present a defense that an unknown individual had coincidentally shot at the victim or at him while he was leaving the scene. To Factor, this appeared to be a perjured defense. Factor was not ready for trial. He had not prepared for cross-examination or cross-referenced the witnesses' various stories with defendant's version of the event. He had spent more time trying to change the dynamic of the communication with defendant than he had getting ready for trial. Factor was not sure whether defendant was unable or unwilling to assist in his own defense. Factor stated that he had a conflict with the defendant because of their lack of communication and his apparently perjured defense. Factor did not think he would be able to convince defendant to cooperate with a defense of shooting a gun into the air. Factor's declaration concluded, "I doubt any attorney can represent Mr. Dedmon conscientiously and present his perjured defense. Mr. Dedmon is either sane and should be allowed to present his own defense in Pro Per, or is unable to assist in his own defense. In my opinion."

In court, Factor stated that he had a conflict of interest and could not represent defendant. He was not ready for trial and not prepared to the degree that he would prepare for a trial. He recommended that the court allow defendant to represent himself, because he did not think any attorney would put on a perjured defense. The prosecution announced they were ready for trial.

The trial court reviewed the history of the case, including discovery. Defendant, representing himself, had proceeded nearly to trial, but expressed concerns about his ability to pick a jury, present evidence, and adequately represent himself, so he gave up his pro per status, and his standby counsel was appointed. After several weeks, the standby counsel declared that he had a conflict. He had attempted to work with defendant and had an unresolvable conflict for reasons similar to Factor's reasons; he was concerned defendant wanted to present perjured testimony. Factor was appointed. The court concluded, "I think Mr. Dedmon is not going to like that I say this, but I think that he is placing the court as well as counsel in a position where I'm forced to have you continue forward. [¶] I don't think he's asking to represent himself. I don't think he's able to represent himself given what happened previously, and I think he has no intention of doing that. I think he's acting in a manner to force the court into a corner and choosing not to cooperate with counsel or choosing not to listen to counsel's advice. [¶] I cannot make him take your advice. I cannot force him to listen to your advice. All you can do is give the advice and present the case in whatever manner you believe is appropriate tactically. Then Mr. Dedmon is going to get to choose whether or not to testify. But he can't act in a manner where all that happens is counsel is relieved and new counsel is appointed. Then we're back in the same position. It's been going on for months now." The court denied Factor's request to be relieved as counsel.

Trial began on April 27, 2018. Factor stated that defendant had been deemed ready for trial. Factor also told the court that defendant was going to be seated separately, as Factor did not feel safe or comfortable with defendant. He asked that a chair be placed between himself and defendant. Factor reported that communication with defendant had broken down completely and Factor had declared a conflict. Factor noted that he did not have clothing for defendant. Factor later stated that he did not have witnesses to present for the defense and did not have an investigator.

Factor explained that defendant had been diagnosed as paranoid schizophrenic, for which defendant was prescribed an anti-psychotic medication. Defendant had not taken his medication for five days, because he had been traveling to court during the hours when medication was supplied. The court signed a medical order and noted that defendant appeared coherent and calm. The court asked defendant about the prosecution's plea bargain offer. Defendant responded that he was not going to get a fair trial, because the court was going to proceed even though his lawyer was not ready, but he did not want to take the offer.

After discussion of other matters, the court stated, "Let's talk about the fact that defendant is not dressed out. He is in county jail clothes. [¶] The court is going to give an instruction that indicates to the jurors that they are not to take that into consideration for any reason whatsoever, the fact that he is in custody and to not speculate as to why he is in custody. [¶] Does anyone wish to be heard on that?" The prosecution did not add anything, and Factor did not respond.

Factor stated that the defense had one potential witness, which was defendant's investigator Naum Ware. Defendant returned to custody while the jury panel was assembled. Defendant refused to leave the cell. The court explained to defendant that the trial would proceed without his appearance. Defendant argued that his lawyer was not ready and had said there were no witnesses, when defendant had several people who could testify on his behalf. Specifically, his sisters and his cousins. Defendant composed himself and returned to the courtroom.

In the afternoon session of the first day of trial, the court held a closed hearing attended by defendant and Mr. Factor. Defendant stated that Factor did not want to represent him. The trial court treated his statement as a Marsden motion. Defendant stated that he was not going to get a fair trial, because Factor was not prepared or ready to represent defendant. Defendant asked to represent himself pursuant to Faretta.

Factor stated that he had been unable through his conversations with defendant to get information helpful to defend the case. He had spent a lot of time trying to develop a relationship with defendant in order to be able to understand what defendant was trying to say. In Factor's evaluation, the defense was that shots went into the air and defendant did not intend to hit anyone. Defendant wanted him to put on a defense that an unknown person fired shots at defendant or at someone else, which Factor could not put on in good faith because he believed he would be presenting perjured information. Defendant indicated to Factor that the shots hit the back of his van. Information gathered in discovery reflected that the bullet holes in the back of his vehicle were present prior to the event. Defendant told Factor that he is not guilty in any way and does not have a gun. Defendant refused to waive time to allow Factor time to obtain evidence and prepare properly.

Defendant wanted Factor to call three of his relatives, none of whom were present during the shooting. The relatives did not present any impeachment on the issue of whether defendant shot at Chermenita. In fact, all three would say that they talked to Chermenita, who said defendant shot at her. The relatives presented impeachment tangentially only on the issue that both Chermenita and defendant had histories of mental problems.

Defendant insisted DNA and fingerprint evidence had been completed, when Factor's information was that it had not been done. Factor stated that "he and I have reached a fairly difficult impasse where he doesn't wish to communicate with me, and I do not enjoy communicating with him." The court asked defendant if he had anything further. He said he had been trying to prove his innocence for a year, and added, "Now I am seeing what I am up against. I am just really not ready."

The court stated, "The court finds that Mr. Dedmon's expressions are that, that the defense attorney doesn't want to represent him, and that he is not prepared for trial. [¶] I disagree with you, Mr. Dedmon. [¶] Mr. Factor just gave us a whole list of items that he did on your behalf with or without your help, to try to prepare for this case and do the best he can in preparation for this case, and that you were the only person that was obstructing the preparation of your own case. [¶] That is your fault. That is what you did, and he can't be held accountable for that because you are not the captain of the ship. He is the captain of the ship. He gets to decide the trial strategy and tactics of this case, and he is trying." The court reviewed relevant case law and denied the Marsden motion, because the court found Factor had done his job.

The court reviewed defendant's prior representation. The court concluded, "[O]ne of the rules that you have when you exercise your Faretta, Mr. Dedmon, is you don't get to go back and forth. [¶] You don't get to say, I am going to be pro per, use your pro per and say, I am going to have a lawyer, and then come back and say, I don't want my lawyer. I want to go pro per. [¶] That is not going to work. We are now in trial, in jury selection." The court denied the motion.

Factor asked, "Your Honor, just on the issue of, if he testifies, I've indicated to the court, I am not sure what he is going to testify to, but I would like to ask that I be allowed to just ask an open ended question, please tell us your version or something - do you understand what I am saying?" The court responded, "I do, and I don't think that is appropriate because that is objectionable. It is narrative, and et cetera." Factor stated, "I understand, but under the circumstances, I can not suborn perjury." The court stated, "That is the reason why you need to ask questions that are direct." There was discussion as to whether Factor could raise the issue with the court through an ex parte proceeding. The court concluded, "I think what we should do is wait until and if he takes the stand, and we'll deal with that when we get to it."

In defense counsel's opening statement to the jury, he suggested the evidence would show that defendant fired out of the car to scare the victim. He stated that it was not an issue of who did it, but whether something occurred at all. He said that defendant did something stupid by firing out of a vehicle to scare her, but he did not fire at Chermenita.

After the prosecution finished presenting its case, Factor discussed with defendant whether he would testify. Factor told the court that defendant would not testify. The prosecution explained to Factor that he had a right to testify in front of the jury. The following waiver was made on the record: "[Prosecution:] It is my understanding that you do not wish to testify, is that accurate? [¶] [Defendant:] Yes, sir. [¶] [Prosecution:] Is that after speaking with your attorney, talking with him about the benefits of testifying, the negatives, and that you arrived at a decision not to testify? [sic] [¶] [Defendant:] Yes, sir. [¶] [Prosecution:] And are you doing that freely and voluntarily because you think that's in your best interest? [¶] [Defendant:] Yes, sir."

The defense rested without putting on any additional witnesses. In discussing jury instructions, Factor admitted that the decision for the defense to rest was a new development, which he had spoken about briefly with defendant. Factor was still trying to figure out the tactical direction for the case.

In closing argument, the prosecution argued that defendant pointed the gun at Chermenita and fired several shots at her, in the middle of a residential neighborhood with several bystanders nearby. Factor stated in closing argument that no one disputed a shooting occurred, but there was no intent to kill. Defendant could have fired at Chermenita when she was at the window of his van. Adkins did not see which way the shots were fired, and there was no evidence of any bullet strikes at Chermenita's height.

The jury found defendant guilty of assault with a semiautomatic firearm, shooting a firearm from a motor vehicle, and shooting a firearm from a motor vehicle at another person. The jury also found that defendant personally used a firearm during the assault. They found defendant was not guilty of attempted murder. The court sentenced defendant to a total of 19 years in state prison.

DISCUSSION

Faretta

Defendant contends the trial court abused its discretion by denying his request to represent himself. We conclude that the trial court properly denied defendant's request because it was both untimely and equivocal.

If a defendant asserts the constitutional right to self-representation within a reasonable time prior to trial, the trial court must allow the request. (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham); People v. Stanley (2006) 39 Cal.4th 913, 931-932.) In all other cases, the trial court has discretion whether to grant a request for self-representation. (Windham, supra, 19 Cal.3d at p. 128.) Before exercising this discretion, the court must inquire about the reasons for the defendant's request. (Id. at p. 129, fn. 6) "Among other factors to be considered by the court in assessing such requests made after the commencement of trial are the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Id. at pp. 128-129.) While the court should make its inquiries explicit, "[w]here . . . the reasons for the denial of the motion are absolutely clear on the record . . . there [is] no detrimental effect on the justice system for the appellate court to draw the inferences necessarily implied by the court's ruling." (People v. Perez (1992) 4 Cal.App.4th 893, 905, fn. 10 (Perez).)

A request for self-representation necessarily implicates two "'mutually exclusive'" constitutional rights: "'the right to be represented by counsel at all critical stages of a criminal prosecution'" and "'personally the right to present a defense.'" (People v. Scott (2001) 91 Cal.App.4th 1197, 1202-1203 (Scott), quoting People v. Marshall (1997) 15 Cal.4th 1, 20.) In order to protect the fundamental right to counsel, a court granting a request for self-representation must ensure the request is unequivocal. "'[O]ne of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. [Citations.] The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.' (People v. Marshall, supra, 15 Cal.4th at pp. 22-23, italics added.)" (Scott, supra, 91 Cal.App.4th at p. 1203.)

Defendant's second Faretta motion, which was brought during voir dire the afternoon of the first day of trial, fell within the trial court's discretion to deny on timeliness grounds. More significantly, the record establishes that defendant's request was not "unequivocal." Although defendant clearly stated he wanted to invoke his Faretta rights, the trial court appropriately evaluated the request in light of defendant's overall conduct and words. Defendant had previously represented himself for several months, only to ask the court to reappoint counsel for him because of his own concerns he would not be able to handle jury selection and evidentiary issues. Leading up to trial, the court had repeatedly addressed issues arising from the dysfunctional relationship between defendant and his second counsel, Ramirez, and between defendant and Factor. These issues had led to Factor, not defendant, to be the first to raise the possibility of self-representation: Factor opined that no counsel could ethically and adequately represent defendant, leaving self-representation as the best option. At a hearing two days before trial, in denying Factor's request to withdraw and his related opinion regarding self-representation, the trial court noted that defendant was not asking, able, or intending to represent himself. Rather, the court suggested defendant was acting to disrupt the proceedings. When defendant finally made his own request for self-representation after trial commenced, defendant's reasons were a repeat of his discontent about Factor as his counsel, not about affirmative reasons to proceed in pro per. The record amply supports that his last minute Faretta request was made out of "frustration" and perhaps "passing anger," and was "ambivalent" in that it reflected his distrust of Factor, not an unequivocal desire to present his own defense. (Scott, supra, 91 Cal.App.4th at p. 1203.) This is particularly the case given defendant's prior conduct giving up pro per status, which operated as a concession that his desire for self-representation had been misguided. Finally, given this history, and the timing of defendant's request, the trial court's comments suggesting the continuing issues with representation were adversely impacting the orderly administration of justice were well supported. The court did not err in denying defendant's request for self-representation. Narrative Testimony

Defendant contends that the trial court erred by refusing to allow narrative testimony. Although the trial court tentatively ruled, over defense counsel's objection, that defendant would not be permitted to testify in narrative form, the record does not support defendant's argument on appeal that he did not testify because of the court's indicated ruling, as opposed to electing not to testify. Accordingly, we find defendant has forfeited the challenge to the trial court's alleged error.

A defendant has a constitutional right to testify in his or her own defense, but does not have a right to testify falsely. (Nix v. Whiteside (1986) 475 U.S. 157, 173.) "As the parties recognize, a defense attorney has an ethical obligation not to present perjured testimony [citations] and the attorney's refusal to participate in such presentation does not deny the client effective assistance of counsel. [Citations.] In Johnson, we explained various options a defense attorney faces when confronted with the dilemma of a client possibly falsely testifying. (People v. Johnson[ (1998)] 62 Cal.App.4th [608,] 620-630.) In addition to noting an attorney should first try to persuade the client to testify truthfully, we also noted a defense counsel may notify the court of the conflict, may move to withdraw from representation, may allow the client to testify in narrative form, may persuade the client not to testify or may remain silent in complicity with the client's false testimony. (Ibid.)" (People v. Jennings (1999) 70 Cal.App.4th 899, 907-908.)

The record here indicates that at the time of jury selection, when Factor first addressed the possibility of defendant testifying, Factor suggested, and the trial court rejected, having defendant testify in narrative form. Although the trial court indicated that narrative testimony was inappropriate and objectionable, it deferred a final discussion on what to do "until and if [defendant] takes the stand." When it came time for the defense case, four days later, Factor appears to have persuaded defendant not to testify, and defendant waived his right to testify. Neither counsel nor defendant reiterated a request to testify in narrative form, nor did they indicate that defendant's decision was based upon an understanding that the court had issued a final ruling precluding narrative testimony. Unlike at the time of jury selection, by the time defendant had to make a decision on testifying, he would have been aware that the prosecution introduced overwhelming evidence that defendant (and not some unknown third party) fired the shots. The record supports that there were many good strategic reasons for defendant not to testify to the narrative that had been proffered prior to trial. As such, the issue is forfeited.

Even assuming error in denying the defendant the right to testify, such error would not result in reversal per se. (People v. Johnson, supra, 62 Cal.App.4th at p. 634.) The error is subject to review under the harmless error analysis articulated in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Johnson, supra, 62 Cal.App.4th at pp. 634-636.) Under that standard, reversal is required unless the prosecution establishes that the court's error was "harmless beyond a reasonable doubt." (Chapman v. California, supra, 386 U.S. at p. 24.)

Under the Chapman standard of prejudice in this case, we are convinced beyond a reasonable doubt that the outcome would have been the same if the trial court had allowed defendant to testify in narrative form. Defendant made clear that in narrative testimony he would have denied ever firing a shot, and stated instead that some unknown person has fired shots at his van as he drove away. As stated above, there was overwhelming evidence of defendant's guilt on the charges of assault with a firearm and shooting a firearm from a motor vehicle at another person. The argument between defendant and Chermenita intensified over the course of the day; she hung up on him, ignored repeated telephone calls, and when she saw him, told him not to come back. Chermenita's son saw defendant point a gun at his mother's back, the property manager saw muzzle flashes coming from the van, Chermenita saw muzzle flashes from the driver's side door in her direction as the van drove south, there were shell casings found in the street at the scene immediately after the shooting and the cases were in a pattern consistent with shots being fired from the moving van, and there were video recordings that showed defendant's van suddenly accelerate down the street as gunshots were heard. Defendant could not identify another source of the gunfire in the street, or any motivation for an unknown person to be shooting at the time of the event. Considering the weight of the evidence, we are convinced beyond a reasonable doubt that defendant's testimony that he did not shoot a gun that night would not have resulted in a better outcome of the trial for the defendant. Jail Clothing

Defendant contends the trial court erred by forcing him to wear prison clothing on the first day of trial. The contention has been forfeited, because defense counsel failed to object to defendant appearing in prison clothes when the trial court gave defense counsel an opportunity to raise the issue. In that case, however, defendant contends that his trial counsel provided ineffective assistance by failing to object to his client wearing jail clothing. We conclude there was not a reasonable probability that defendant would have obtained a more favorable result if he had not been wearing prison clothing.

"To compel a defendant to go to trial wearing jail clothing violates his constitutional rights to a fair trial, due process, and equal protection. It creates an unacceptable risk of undermining the presumption of innocence in the jury's eyes. Furthermore, it does not serve any essential state interest, and it is imposed discriminatorily on those who cannot afford to make bail. (Estelle v. Williams (1976) 425 U.S. 501, 503-505 (Estelle); People v. Taylor (1982) 31 Cal.3d 488, 494-495 (Taylor).) Nevertheless, the error, even when objected to, is not reversible per se, but may be found harmless beyond a reasonable doubt under the Chapman standard [citation]. (Estelle, supra, 425 U.S. at pp. 507-508; Taylor, supra, 31 Cal.3d at pp. 499-500; People v. Pena (1992) 7 Cal.App.4th 1294, 1305-1306.)" (People v. Meredith (2009) 174 Cal.App.4th 1257, 1262-1263 (Meredith).)

If defendant does not timely object or seek to wear different clothing, however, defendant forfeits the claim of error. (People v. Scott (1997) 15 Cal.4th 1188, 1211; Meredith, supra, 174 Cal.App.4th at p. 1263.) Where the forfeited claim is raised on appeal in the context of ineffective assistance of counsel, "'the burden [shifts] to the defendant to prove that there exists a reasonable probability that, absent his attorney's incompetence, he would not have been convicted.' [Citation.]" (People v. Mesa (2006) 144 Cal.App.4th 1000, 1010.) "To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland[ v. Washington (1984)] 466 U.S. [668,] 694.)" (In re Wilson (1992) 3 Cal.4th 945, 950.)

The record reflects that defendant appeared in court on the first day of trial wearing jail clothing, but does not establish that defendant was forced to wear jail clothing. The trial court expressly invited comment on the issue of defendant's jail clothing, and defense counsel did not object to defendant wearing the clothing.

Defendant contends counsel's failure to expressly object constituted ineffective assistance of counsel.

Even assuming counsel's failure to object did not meet prevailing professional norms, defendant fails to show a reasonable probability of a more favorable outcome. Defendant's credibility as a witness was not in issue, because he did not testify or give an out-of-court statement. The trial court expressly advised the jury to "disregard the circumstance" of defendant's custody status. The jury acquitted defendant of attempted murder, the most serious charge, and there was overwhelming evidence that defendant shot a gun in Chermenita's direction. The jury's verdict was not inconsistent, because they could find that defendant shot a gun in Chermenita's direction without having the intent to kill her. Given these circumstances, defendant fails to show a reasonable probability of a more favorable result or that otherwise undermines confidence in the jury's verdicts. Shooting from a Vehicle

Defendant contends, and the prosecution concedes, that the conviction for discharging a firearm from a motor vehicle must be reversed, because it is a lesser included offense of discharging a firearm from a motor vehicle at another person. We agree.

"When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736.) "Under California law, a lesser offense is necessarily included in a greater offense if . . . the statutory elements of the greater offense . . . include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)

The statutory elements of section 26100, subdivision (c) are: (1) willfully and maliciously discharging a firearm; (2) from a motor vehicle; and (3) at another person other than an occupant of a motor vehicle. The statutory elements of section 26100, subdivision (d) are: (1) willfully and maliciously discharging a firearm; and (2) from a motor vehicle. The prosecution argued that all the shots were fired at Chermenita. Accordingly, the conviction for discharging a firearm from a motor vehicle at another person contains all the elements of discharging a firearm from a motor vehicle. In this case, discharging a firearm from a motor vehicle was a lesser included offense of discharging a firearm from a motor vehicle at another person and must be reversed. Because resentencing will be necessary, defendant will have the opportunity to raise on remand the custody credit and ability to pay issues he has raised in this appeal.

DISPOSITION

Defendant's convictions for assault with a semiautomatic firearm and for discharging a firearm from a motor vehicle at another person are affirmed. Defendant's conviction for discharging a firearm from a motor vehicle is reversed. Defendant's sentence is vacated and the matter is remanded for resentencing.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.


Summaries of

People v. Dedmon

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 23, 2020
B291864 (Cal. Ct. App. Jan. 23, 2020)
Case details for

People v. Dedmon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEANDRE L. DEDMON, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 23, 2020

Citations

B291864 (Cal. Ct. App. Jan. 23, 2020)