Opinion
E064830
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID MALARCHER MAJIED, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1411978) OPINION APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted defendant David Malarcher Majied of four crimes: attempted murder (count 1, Pen. Code, §§ 187, subd. (a), and 664); assault with a firearm (count 2, § 245, subd. (a)(2)); attempted robbery (count 3, §§ 211, 664); and burglary (count 4, § 459). The trial court sentenced defendant to a total prison sentence of 13 years.
All statutory references are to the Penal Code. --------
Appellate counsel has filed a brief summarizing the proceedings and facts and summarily raising several issues. After multiple continuances, defendant has not filed supplemental briefing.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436, 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California (1967) 386 U.S. 738, 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.) Based on our independent review of the record, we affirm the judgment.
II
STATEMENT OF FACTS
Defendant and another man tried to rob a marijuana dispensary on May 2, 2014. Both men were armed. A dispensary employee was also armed and, when he drew his gun, one of the intruders shot at the employee and he returned fire. The intruders and the employee continued to exchange gunfire until the intruders fled in a vehicle.
At 11:00 p.m. the same night, defendant arrived at a hospital to be treated for a gunshot wound to his leg. He claimed two men had fired at him on the street.
A forensic technician found blood at the scene that matched defendant's blood. Four months later an officer interviewed defendant and photographed two scars, consistent with a bullet wound, on defendant's leg.
III
DISCUSSION
Three potential issues are identified by defendant's appellate counsel: 1) whether it was prejudicial error when a juror saw defendant shackled while he was being transported, 2) whether it was prejudicial error or ineffective assistance of counsel to continue the date of the preliminary hearing past 60 days, and 3) whether the court should have granted a mistrial motion because of an inadvertent reference made by a prosecution witness to defendant's criminal history. Based on our independent review, we hold there are no viable appellate issues.
The first issue arose when a juror returned from lunch to see defendant being shackled for transportation. Defense counsel declined the court's invitation to instruct the jury. In a case where a defendant is seen by a juror in shackles, for only a brief period either inside or outside the courtroom, "[s]uch brief observations have generally been recognized as not constituting prejudicial error. [Citations.]" (People v. Duran (1976) 16 Cal.3d 282, 287, fn. 2; People v. Tuilaepa (1992) 4 Cal.4th 569, 585.)
On the second issue, the trial court granted the prosecution's motion to continue the date of the preliminary hearing for two weeks in spite of a defense objection and defendant's lack of waiver. The court cited as good cause for the continuance that the prosecution's testifying detective would not be available. Under the totality of the circumstances, including no demonstrated prejudice, the witness's unavailability constituted good cause and the continuance did not violate section 859b (see Stroud v. Superior Court (2000) 23 Cal.4th 952, 967-968) or establish ineffective assistance of counsel. (People v. Harris (1967) 67 Cal.2d 866, 870.)
Finally, the prosecution's witness erroneously made a passing reference to defendant's "criminal history number" while testifying about the DNA data base. The trial court denied the defense's mistrial motion on the grounds there was no prosecutorial error and the reference was brief, nonspecific, and not prejudicial. The witness's inadvertent response was not prejudicial (People v. Avila (2006) 38 Cal.4th 491, 610) and the trial court did not abuse its discretion in denying the defense motion for mistrial. (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
IV
DISPOSITION
Our independent review discloses no viable claim of error. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.