People v. Parker CA2/1 ( 2021 )

Filed 9/24/21 P. v. Parker CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B305256
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA139632)
v.
CEDRICK DEVONTAE PARKER
et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of
Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Lonnie L. McDowell for Defendant and Appellant Cedrick
Devontae Parker.
Spolin Law and Aaron Spolin for Defendant and Appellant
Deandray Bonner.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendants Cedrick Devontae Parker and Deandray
Bonner appeal from the judgment following their convictions for
multiple murders and other offenses, most gang-related. We
reject all of defendants’ challenges and affirm. Specifically, we
hold (1) the evidence, including an eyewitness identification, was
sufficient to support Bonner’s convictions arising from a vehicle-
to-vehicle shooting in which a man was killed; (2) the record
indicates a defense witness would have invoked her right against
self-incrimination and refused to testify regardless of the trial
court’s ruling on impeaching her with a pending criminal charge,
and therefore the impeachment ruling did not prejudice Bonner;
(3) defendants’ disciplinary records in custody and their
threatening a codefendant justified placing defendants in
concealed restraints during trial; (4) the gang evidence was
neither cumulative nor excessive; (5) the trial court did not err by
admitting the preliminary hearing testimony of an unavailable
witness; and (6) Parker fails to show his counsel was ineffective.
PROCEDURAL BACKGROUND
An information charged both Bonner and Parker with
conspiracy to commit murder (Pen. Code,1 § 182, subd. (a)(1))
(count 1), carjacking (§ 215, subd. (a)) (count 2), second degree
robbery (§ 211) (count 3), two counts of attempted murder
(§§ 664/187, subd. (a)) (counts 4 and 5), driving or taking a
vehicle without consent (Veh. Code, § 10851, subd. (a)) (count 9);
1 Unspecified statutory citations are to the Penal Code.
2
murder (§ 187, subd. (a) (count 10); and assault with a firearm
(§ 245, subd. (a)(2)) (count 17).2
The information charged Bonner individually with robbery
(§ 211) (count 13), assault with a firearm (§ 245, subd. (a)(2))
(count 14), burglary (§ 459) (count 15), murder (§ 187, subd. (a))
(count 23), attempted murder (§§ 664/187, subd. (a)) (count 24),
shooting at an occupied vehicle (§ 246) (count 25), and four counts
of possession of a firearm by a felon (§ 29800, subd. (a)(1))
(counts 11, 16, 18, 26).
The information charged Parker individually with murder
(§ 187, subd. (a)) (count 20), shooting at an occupied vehicle
(§ 246) (count 21), and five counts of possession of a firearm by a
gang member (§ 25850, subd. (a)) (counts 7, 8, 12, 19, 22).
The information alleged criminal street gang
enhancements on all counts except the firearm possession counts,
and various firearm enhancements on all counts except the
firearm possession counts and the count for driving or taking a
vehicle without consent. The information further alleged special
circumstances under section 190.2, subdivisions (a)(3) and (22) as
to the murder in count 10, and under subdivisions (a)(3), (21),
and (22) as to the murders in counts 20 and 23.3
2 Deandre Clayton was charged as an additional defendant
on counts 1, 4, and 5, and Andrew Batres was charged as an
additional defendant on count 10. Clayton was not tried with
defendants. Batres was tried with defendants but had a separate
jury. Clayton and Batres are not parties to this appeal.
3 The alleged special circumstances were conviction for
multiple murders in the same proceeding (§ 190.2, subd. (a)(3)),
discharge of a firearm from a motor vehicle (id., subd. (a)(21)),
3
The jury found defendants guilty of all charges and found
all special circumstances as to the murder counts true. On each
count that included firearm allegations the jury found at least
one such allegation true, in some cases based on the defendant’s
conduct, and in some cases based on a principal’s conduct. The
jury found the gang allegations true except as to counts 13, 14,
and 15, on which the jury could not reach agreement. The trial
court declared a mistrial as to the gang allegations on counts 13,
14, and 15.
Defendants both moved for a new trial. The trial court
denied the motions.
The trial court imposed two sentences of life without the
possibility of parole on Parker, as well as an indeterminate
sentence of 205 years to life and a determinate sentence of
14 years 8 months. The trial court imposed two sentences of life
without the possibility of parole on Bonner, as well as an
indeterminate sentence of 227 years to life and a determinate
sentence of 29 years 8 months. The trial court awarded credits
and imposed fines and fees.
FACTUAL BACKGROUND
The majority of defendants’ challenges on appeal pertain to
the conduct of the proceedings rather than the specific counts and
evidence against them. Thus, we do not set forth a detailed
summary of the evidence in our Factual Background. To provide
context, we do include a brief synopsis, in chronological order, of
the circumstances underlying each count. To the extent more
detail is necessary, we include it in the relevant section of the
and murder by a gang member to further the activities of the
gang (id., subd. (a)(22)).
4
Discussion, post. In presenting this synopsis, we draw every
inference in favor of the judgment.
Defendants were members of the Denver Lane Bloods gang.
On January 17, 2016, defendants stole a vehicle from Edward F.
at gunpoint (counts 2, 3, 7, 9). Approximately 35 minutes later,
defendants used Edward F.’s vehicle to perpetrate a drive-by
shooting at several persons standing in front of a liquor store,
wounding Elliot W. (counts 1, 4, 5). The liquor store was in the
territory of the Hoover Criminals, a rival gang to the Denver
Lane Bloods.
On February 21, 2016, Bonner fired multiple shots from his
vehicle at a vehicle occupied by Nathaniel Ancar and
Lateshia W., killing Ancar (counts 23, 24, 25).
On March 18, 2016, Parker fired a gun from his vehicle,
killing Kaelen Warren, who was riding past on a minibike
(counts 20–21).
On March 20, 2016, defendants approached several
individuals and displayed their handguns. One of the individuals
shot at defendants, who returned fire (count 17). The area was
claimed by Crip gangs, rivals to the Denver Lane Bloods.
On March 21, 2016, around 1 p.m., Bonner entered the
motel room of Deon E. and robbed him at gunpoint (counts 13, 14,
15).
On March 21, 2016, at around 11:20 p.m., defendants shot
and killed Steven Johnson (count 10). The victim was affiliated
with the Hoover Criminals, and the area in which he was killed
was claimed by that gang.
The various gun possession counts (counts 7, 8, 11, 12, 16,
18, 19, 22, 26) were in connection with the above offenses, that is,
5
one or both defendants had a firearm at the time they committed
the other offenses.
DISCUSSION
A. There Was Sufficient Evidence To Support Bonner’s
Convictions for the Attack on Ancar and Lateshia W.
Bonner argues that the prosecution “failed to prove that
[Bonner] committed, or was involved in, any crime against Ancar
or [Lateshia W.],” the victims of the vehicle-to-vehicle shooting on
February 21, 2016. Bonner thus challenges his convictions on
counts 23 through 26—the murder of Ancar, the attempted
murder of Lateshia W., shooting at an occupied vehicle, and
possession of a firearm by a felon. We reject these challenges.
1. Standard of review
“ ‘To assess the evidence’s sufficiency, we review the whole
record to determine whether any rational trier of fact could have
found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution
and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.
[Citation.] “Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
6
upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. [Citation.]” [Citation.] A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the jury’s verdict.’ [Citation.]”
(People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri).)
2. Evidence presented at trial
Lateshia W. testified that around 9 p.m. on February 21,
2016, her fiancé Ancar was driving his Chevy Tahoe with
Lateshia W. in the passenger seat. While they were stopped at a
traffic light, a car pulled up to the passenger side of the Tahoe.
Lateshia W. thought this was unusual because there was only
one lane traveling in that direction, meaning the other car had
moved up between the Tahoe and the curb.
Lateshia W. saw a person staring out the window of the car
at them.4 She brought this to Ancar’s attention. Ancar did not
say anything, but reclined Lateshia W.’s seat back. When the
light turned green, Ancar “started speeding down the street.”
Lateshia W. heard gunshots, and the Tahoe crashed.
Lateshia W. saw that Ancar was bleeding from his forehead and
4 Lateshia W.’s testimony regarding the staring person
was confusing. She first said the person was “staring out of the
passenger’s side of the driver’s side of the vehicle.” Later, she
stated the person was staring out of the passenger window, and
she could not see the driver. This would appear to be
inconsistent with her earlier testimony that the shooter’s car had
pulled up on the passenger side of the Tahoe, between the Tahoe
and the curb, in which case the passenger side window of the
shooter’s car would be facing away from the Tahoe.
7
was not responsive. A forensic pathologist testified that Ancar
had died from a gunshot wound to his temple.
During the investigation, detectives showed Lateshia W.
photographs of possible suspects but she was not able to identify
the shooter. At defendants’ preliminary hearing, Lateshia W.
similarly testified she could not identify anyone in the courtroom
as the shooter. After the hearing, however, she sent a text
message to a detective stating that she thought she recognized
someone in the courtroom. At trial, she identified Parker, not
Bonner, as the person she believed she recognized at the
preliminary hearing.
The jury also heard the testimony of another eyewitness,
Samantha D. Just before the shooting, Samantha D. was sitting
in her car at the traffic light behind another car, with an SUV
ahead of that car. The car in front of her steered into the bike
lane and pulled up next to the SUV. The car’s driver fired
several shots, after which the SUV hit a parked van and then
rammed into a fence.
Samantha D. testified she could see the car’s driver in
profile through the back window of his car, and could also see
him reflected in the side mirror. He was a tall, muscular black
man. When shown a six-pack of photographs by detectives on
April 13, 2016, she identified Bonner as the shooter, and
identified him again at trial.
The prosecution presented surveillance video showing a
vehicle following Ancar’s Tahoe, the Tahoe crashing, and the
other vehicle continuing on. A detective testified that Bonner
was arrested a month after the shooting while driving an Infiniti
that matched the vehicle in the surveillance video. Samantha D.
8
also identified a photograph of the Infiniti as the vehicle involved
in the shooting.
Cell tower records indicated that Bonner’s cellphone was in
the area of the shooting shortly before the shooting occurred. A
firearms examiner testified that .380 caliber shell casings
recovered from the scene had been fired from the same weapon as
casings recovered from the shootings of Elliot W. and Johnson.
3. Analysis
The record discloses sufficient evidence to uphold Bonner’s
convictions on counts 23 through 26. Samantha D. identified
Bonner, both to police and at trial, as the man she witnessed
shoot at the Tahoe. Her testimony was corroborated by cell tower
records placing Bonner near the scene of the crime, and
surveillance footage of the shooter’s vehicle that resembled the
Infiniti in which Bonner later was arrested.
Bonner notes that Lateshia W. testified it was Parker, not
Bonner, who fired at the Tahoe, and argues that given the
conflicting evidence, the jury could not have concluded beyond a
reasonable doubt that Bonner was the shooter. Bonner suggests
that Lateshia W.’s identification was more credible, given that
she saw both Bonner and Parker at the preliminary hearing and
“made a point to identify Parker and not [Bonner].” Bonner
further suggests Samantha D.’s identification was unreliable
because she testified she was “not looking for details” when she
looked at the shooter’s vehicle, and saw him only through his side
mirror.
As an initial matter, Samantha D. made clear at trial she
did not solely view Bonner in the side mirror, but also saw him in
profile through the back window of his car. Regardless,
“ ‘ “[c]onflicts and even testimony [that] is subject to justifiable
9
suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends.” ’ ” (Penunuri, supra, 5 Cal.5th
at p. 142, first bracketed insertion added.) The jury was aware of
the evidentiary issues raised by Bonner here, including the
conflict between Samantha D.’s and Lateshia W.’s testimony, and
concluded Bonner was the shooter. Under the applicable
standard of review, we cannot second-guess that conclusion.
B. Bonner Fails To Show Prejudice From the Trial
Court’s Permitting the Prosecution To Impeach a
Defense Witness With Her Pending Criminal Charge
Bonner contends the trial court erred by permitting the
prosecution to impeach a defense witness, Dominique M., with a
pending criminal charge. He asserts that, as a result of the trial
court’s ruling, the witness invoked her right against self-
incrimination and refused to testify, thus depriving him of
potentially exonerating evidence. As we explain below, Bonner
fails to show that Dominique M. would have testified absent the
trial court’s ruling, and thus fails to establish prejudice.
1. Background
At trial, Bonner’s counsel indicated he would call
Dominique M. as a witness. Based on Dominique M.’s interview
with Detective Stacey Szymkowiak of the Los Angeles Police
Department, Bonner’s counsel contended she could testify that on
February 21, 2016, the date of Ancar’s murder, Bonner did not
have access to the Infiniti in which he later was arrested.
The prosecutor stated his intent to impeach Dominique M.
with statements she made in an earlier trial. Specifically, the
10
prosecutor contended Dominique M. falsely denied being in a
gang and downplayed the significance of a letter she received
asking her to present false testimony in that earlier trial.
The trial court ruled that the prosecutor could question
Dominque M. about her testimony in the earlier trial but
could not introduce the letter itself unless Dominique M.’s
testimony in the instant case made its contents relevant.
Bonner’s counsel noted that Dominique M. also had a
pending felony case against her. The trial court asked the
prosecutor if he intended to impeach her with that pending
charge. The prosecutor asked to table the question until he had
reviewed the police report concerning the charge.
The next morning, Dominique M. appeared with her public
defender, Sharonda Bradford. It appears there had been an
earlier off-the-record discussion regarding Dominique M., because
Bradford stated almost immediately that Dominique M. “is not
going to testify,” and Bonner’s counsel asked for an opportunity
“to put on the record my objection to the procedure and the
testimony that, I believe, would have been elicited from
[Dominique M.] had the court not permitted the district attorney
to go into her pending case.” This all occurred before the
prosecutor had stated on the record an intention to impeach
Dominique M. with her pending charge, and before the trial court
ruled on the record whether to allow that impeachment.
The trial court then proceeded to “make a record of [the
impeachment] issue,” and confirmed that the prosecutor intended
to impeach Dominique M. with the conduct underlying her
pending charge, which was an assault with a gang enhancement
allegation.
11
Bonner’s counsel argued that Dominique M. could provide
testimony that could exonerate Bonner of the Ancar murder.5
Invoking Evidence Code section 352, he contended that “the
potential prejudice and the [e]ffect on Mr. Bonner’s right to
present a complete defense outweighs the minimal values of
impeaching someone with facts, or alleged facts, from a pending
case that are contained in a police report.”
Bonner’s counsel then stated for the record the testimony
he believed Dominique M. could provide, based on her police
interview. Bonner’s counsel summarized the interview in
relevant part as follows: At the time of Bonner’s arrest,
Dominique M. was his girlfriend. She acknowledged Bonner was
a member of the Denver Lane Bloods gang, and her brother
Kelvin C. used to belong to the gang as well. She identified the
Infiniti in which Bonner was arrested as her brother’s car. Her
brother left the car with her when he went to Missouri.
Dominique M. remembered her brother left the same day she
sought treatment for a mouth abscess, and police recovered
records indicating that occurred on March 18, 2016.
5 Bonner’s counsel also claimed Dominique M. could
provide evidence to exonerate Bonner of Johnson’s murder, but
did not elaborate. In Bonner’s motion for a new trial, he argued
that Dominique M. could have testified regarding calls and an
encounter she had with Bonner the night of Johnson’s murder
that, Bonner contended, would suggest he was not present at
Johnson’s murder. Bonner does not renew this argument on
appeal. Rather, he argues that Dominique M.’s testimony
regarding his access to the Infiniti would exonerate him not only
of Ancar’s murder, but also Johnson’s. This argument fails
because the evidence showed the perpetrators of Johnson’s
murder used a Mercedes, not an Infiniti.
12
Dominique M. lived in the same house as her brother and was not
aware of him ever lending the car to anyone prior to leaving it in
her care. She allowed Bonner to drive it on March 22, 2016, the
day of his arrest, but this was the only time he ever had the car.6
The prosecutor reiterated that he had evidence that
Dominique M. lied when she denied in the earlier trial that she
was a gang member. The prosecutor then provided additional
detail about Dominique M.’s pending criminal case. She and
three other individuals allegedly attacked a 14-year-old girl after
the girl denied being a member of a particular gang, then
attacked the girl’s father and brother when they tried to
6 The record on appeal contains notes taken by the
detective that interviewed Dominique M., which largely
corroborate Bonner’s counsel’s summary. According to the notes,
Dominique M. stated the car was her brother’s and he left it with
her when he went to Missouri at the end of February or
beginning of March. She had been Bonner’s girlfriend for a couple
of months. She let Bonner drive the car the day of his arrest, but
that was the only day he did so, and he had no way to get the
keys at any other time. She did not know if anyone else drove
her brother’s car prior to him leaving it with her. Although her
brother knew Bonner, he would not have lent him the car.
When asked if she could better pinpoint the date her
brother left, Dominique M. stated she went to the hospital that
day with a swollen jaw; the notes indicate the police found
medical records from that hospital visit in the Infiniti, although
the notes do not indicate the date of those records.
Dominique M. stated that Bonner was a member of the
Denver Lane Bloods gang, and her brother was a former member.
The interview notes do not appear to refer to anything
pertaining to the Johnson murder.
13
intervene. One suspect had a knife and stabbed at least one
victim. The attackers yelled, “On Lanes,” which referred to the
Denver Lane Bloods gang.
The trial court cited case law for the proposition that
assault with a deadly weapon or by means of force likely to result
in great bodily injury was a crime of moral turpitude, and
although Dominique M. had not yet been convicted, the court
would permit the prosecutor to question her about her pending
case for purposes of impeachment, as well as “any issues of bias
[or] gang membership.” Bradford stated again that if
Dominique M. was called to testify, she would “invoke the
Fifth Amendment right” “on the advice of counsel.”
Dominique M. then took the stand outside the presence of
the jury. Bonner’s counsel asked her, “Do you have a brother
named Kelvin [C.]?” Dominique M. consulted with her counsel,
then stated, “On advice of counsel, I refuse to answer the
question and invoke my Fifth Amendment right.” Bonner’s
counsel asked if Dominique M. recalled being interviewed by
Detective Szymkowiak regarding lending her brother’s car to
Bonner. Dominique M. again refused to answer on the same
ground.
The trial court asked Dominique M. if she intended to
refuse to answer any question asked by Bonner’s counsel, and she
said yes. The prosecutor then asked her if she had access to her
brother’s car before he left for Missouri. She again refused to
answer. The trial court excused her.
2. Analysis
“A witness may be impeached with any prior conduct
involving moral turpitude whether or not it resulted in a felony
conviction, subject to the trial court’s exercise of discretion
14
under Evidence Code section 352.” (People v. Clark (2011)
52 Cal.4th 856, 931.) Evidence Code section 352 grants the trial
court discretion to exclude otherwise admissible evidence if, inter
alia, “its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice . . . .” We review the trial court’s admission of
impeachment evidence for abuse of discretion. (People v. Turner
(2017) 13 Cal.App.5th 397, 408.)
Bonner does not dispute that assault with a deadly weapon
or by means of force likely to cause great bodily injury is a crime
of moral turpitude for purposes of impeachment. (People v.
Rivera (2003) 107 Cal.App.4th 1374, 1381; People v. Elwell (1988)
206 Cal.App.3d 171, 175.) Bonner asserts, however, that the trial
court’s decision to allow the prosecutor to impeach Dominique M.
with her pending assault charge resulted in her choosing not to
testify. This, he contends, deprived him of his constitutional
right to confront witnesses and present a defense, and was also
an abuse of discretion under Evidence Code section 352.
Assuming arguendo the trial court’s ruling was in error, a
question we do not decide, we nonetheless reject Bonner’s
challenge because he fails to show prejudice. Specifically, he fails
to show that Dominique M. would have testified had the trial
court excluded the evidence of her pending charge.
Dominique M. was accused of participating in an assault
for the benefit of the Denver Lane Bloods. Any testimony she
gave in the instant case that linked her to that gang could be
used to incriminate her in her own proceeding. Such testimony
would be unavoidable were she to testify on behalf of Bonner,
even had the trial court barred the prosecution from cross-
examining her about her pending charge. For example, she
15
would have to testify that she was romantically involved with
Bonner, whom she had told police she knew to be a member of
the Denver Lane Bloods. She would be asked about her brother
as well, whom she had told police also was a former member of
the gang.
The prosecution, moreover, had stated its intent to impeach
Dominique M. with evidence that she was a gang member but
had lied about it in an earlier trial. Regardless of the trial court’s
ruling concerning her pending charge, therefore, Dominque M.
would face questions about her gang membership, an issue that
would impact her pending case.
Dominique M.’s counsel stated from the outset that
Dominique M. would refuse to testify, before the trial court had
ruled on the record whether to permit the prosecution to impeach
her with her pending charge. Similarly, on advice of counsel,
Dominique M. refused even to acknowledge she had a brother,
that she had access to his car, or that she had been interviewed
by police about lending the car to Bonner. This record supports
our conclusion that Dominque M. would have invoked her right
against self-incrimination regardless of the trial court’s ruling on
impeachment with the pending assault charge. In the absence of
any prejudice, Bonner’s challenge fails.
C. The Trial Court Did Not Abuse Its Discretion By
Ordering Defendants Restrained With Stealth Belts
Defendants contend the trial court abused its discretion by
ordering them restrained in the courtroom with so-called stealth
belts. We disagree.
16
1. Background
On August 15, 2019, just before jury selection began, the
trial court declared the proceedings “a high-security case.” The
trial court referred to defendants’ disciplinary records while in
custody in the county jail, noting reports of insubordination,
fighting, assaults, and possession of shanks. The court also
referred to incidents in which audience members had gotten into
fights in the hallway. The court noted, however, that defendants
had been respectful and conducted themselves appropriately
while in the courtroom.
On October 7, 2019, weeks into trial, counsel for
codefendant Batres reported that defendants had threatened
Batres that morning while on the bus taking them from jail to
court. According to Batres’s counsel, defendants said they would
kill Batres if he did not take the blame for the Johnson murder.
The trial court asked Batres if he had been threatened by both
defendants that day, and Batres said, “Yes, I was.”
The trial court referred back to its earlier findings
regarding defendants’ disciplinary records of assaults and
shanks, and said the new threat against Batres was “the straw
that breaks the camel’s back.” The court then found “a manifest
need at this point to restrain” defendants. It determined that a
“stealth belt” that “is not seen by the jurors” was the “least
restrictive means” to do so.
Defendants’ counsel objected. Bonner’s counsel noted that
the restraints would prevent defendants from standing when the
jury entered, which “creates an image of disrespect.” He further
argued that Batres was untrustworthy, that counsel had not had
an opportunity to question Batres about the supposed threats,
17
and that Bonner had been well-behaved throughout the
proceedings. Parker’s counsel joined in these arguments.
The trial court stood by its ruling to restrain defendants
with stealth belts. It acknowledged defendants’ respectful
conduct in court but believed there was a manifest need for
restraints based on their conduct outside the courtroom,
including the “direct information” from Batres that he was
threatened.
Bonner’s counsel asked the trial court to order that no one
stand when the jury entered, so defendants would not appear less
respectful than the other participants. The court declined the
request, stating, “The inability to stand up . . . was caused by the
defendants. So, that’s something they have to deal with.”
2. Analysis
“ ‘Under California law, “a defendant cannot be subjected to
physical restraints of any kind in the courtroom while in the
jury’s presence, unless there is a showing of a manifest need for
such restraints.” ’ ” (People v. Young (2019) 7 Cal.5th 905, 934
(Young).) The federal Constitution similarly prohibits use of
visible shackles absent an essential state interest. (Ibid.)
Justifications for restraints include “ ‘ “evidence that the
defendant has threatened jail deputies, possessed weapons in
custody, threatened or assaulted other inmates, and/or engaged
in violent outbursts in court.” ’ ” (Ibid.) “ ‘The trial court’s
decision to physically restrain a defendant cannot be based on
rumor or innuendo. [Citation.] However, a formal evidentiary
hearing is not required. [Citation.]’ [Citation.] The trial court’s
determination is reviewed for abuse of discretion.” (People v.
Williams (2015) 61 Cal.4th 1244, 1259 (Williams).)
18
The record does not suggest any abuse of discretion here.
The trial court found, based on defendants’ disciplinary records
and statements by Batres and his counsel, that defendants had
“ ‘ “possessed weapons in custody” ’ ” and “ ‘ “threatened or
assaulted other inmates,” ’ ” all of which justified the use of
restraints. (See Young, supra, 7 Cal.5th at p. 934.)
Defendants argue there was no evidence they behaved
inappropriately in court. As Young makes clear, a manifest need
for restraints may arise from out-of-court conduct, including
conduct while in custody. (See Young, supra, 7 Cal.5th at p. 934
[manifest need may be based on threats to jail deputies,
possession of weapons in custody, and threats or assaults towards
other inmates].)
Bonner argues it would be “exceedingly unlikely” he would
carry out a threat in court, given such conduct would be “entirely
counterproductive” to his “interest in being acquitted at trial.”
Parker makes a similar argument. Under this rationale,
restraints would never be justified for any defendant in a jury
trial, all of whom have an interest in being acquitted. That of
course is not the law, and our Supreme Court has upheld
convictions despite the use of restraints. (See, e.g., Young, supra,
7 Cal.5th at p. 935.)
Bonner argues there was only a “rather general allegation”
regarding the threat to Batres, and this was insufficient evidence
to support restraints. Parker similarly argues that Batres’s
claim was “equivalent to rumor.” Far from general allegation or
rumor, Batres stated directly to the trial court that defendants
had threatened him, and his counsel provided additional details.
Defendants’ disciplinary records further supported the trial
court’s decision.
19
Parker argues Batres’s claim that defendants threatened
him did not establish a manifest need for restraints because
“Batres is known to be untruthful.” Parker cites to portions of
the record purportedly establishing Batres’s lack of credibility.
Bonner criticizes the trial court for not doing more to investigate
and substantiate Batres’s claims.
The trial court found Batres sufficiently credible, and we
cannot question that determination on appeal. (Penunuri, supra,
5 Cal.5th at p. 142 [“ ‘ “[I]t is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the
truth or falsity of the facts upon which a determination
depends.” ’ ”].) The trial court was not required to conduct
further investigation; courts may make a determination of
manifest need without conducting a formal evidentiary hearing.
(Williams, supra, 61 Cal.4th at p. 1259.)
Parker further argues that defendants’ disciplinary records
were insufficient to show a manifest need for restraints because
the trial court was aware of those records at the start of trial and
did not order defendants restrained at that time. Assuming
arguendo the trial court could not rely solely on the disciplinary
records, the threat to Batres was a sufficient additional reason to
justify restraining defendants later in the trial.
Parker questions whether the trial court truly saw a
manifest need given that it did not order additional security
measures outside the courtroom where, Parker contends, violence
against Batres was more likely to occur. Our analysis is limited
to assessing whether the record supported a need for restraints in
the courtroom. As discussed, the evidence cited by the trial court
was sufficient for that purpose.
20
Parker contends that, assuming the restraints were proper,
the trial court erred by not instructing the jury to disregard the
use of restraints. It is true that when a defendant is shackled in
visible restraints, the trial court “ ‘shall instruct the jury sua
sponte that such restraints should have no bearing on the
determination of the defendant’s guilt. However, when the
restraints are concealed from the jury’s view, this instruction
should not be given unless requested by defendant since it might
invite initial attention to the restraints and thus create prejudice
which would otherwise be avoided.’ ” (People v. Bell (2019)
7 Cal.5th 70, 124, quoting People v. Duran (1976) 16 Cal.3d 282,
291–292.) In the instant case, the trial court ordered defendants
restrained by stealth belts invisible to the jury. Defendants
did not request any jury instruction regarding the belts, and thus
the court had no obligation to provide such an instruction.
Parker argues that although the jurors could not see the
stealth belts, “the restraint of the defendants was visible”
because “they were no longer able to stand.” Therefore, he
contends, the trial court had a sua sponte duty to admonish the
jury about the belts. Our Supreme Court rejected a similar
argument in People v. Manibusan (2013) 58 Cal.4th 40, which
concerned a defendant restrained with an electric shock belt.
(Id. at pp. 84–85.) Although the defendant requested no
instruction concerning the belt, he argued on appeal the trial
court nonetheless should have instructed the jury sua sponte to
“ ‘disregard the defendant’s demeanor that may be attributed to
the presence of a device capable of causing permanent injury or
death upon accidental activation.’ ” (Id. at p. 86.) The Supreme
Court, citing Duran, concluded any such instruction would be
21
inappropriate absent a request from the defendant, given that it
might draw undue attention to the restraint. (Ibid.)
Similar to the defendant in Manibusan, Parker argues not
that jurors could see the restraints themselves, but that they
might have noticed a change in his conduct attributable to the
restraints, namely his inability to stand. As in Manibusan, the
trial court reasonably could conclude that raising the issue with
the jury created a greater risk of prejudicing defendants than
staying silent. Indeed, the trial court expressly stated it was not
inclined to raise the issue because “I think that will highlight the
issue more than anything else.” Defense counsel did not contest
this conclusion or request an instruction. Under these
circumstances, the trial court did not err by choosing not to give
an instruction regarding the belts.
Because the record supports the trial court’s finding of a
manifest need to restrain defendants with stealth belts, we need
not determine if that ruling was prejudicial. (See People v.
Bryan, Smith and Wheeler (2014) 60 Cal.4th 335, 392 [“Given the
particularized finding of need in this case, the possibility that
some jurors may have perceived defendants were wearing some
type of [restraining] device does not establish a constitutional
violation.”].)
D. The Trial Court Did Not Abuse Its Discretion By
Admitting Evidence of Defendants’ Gang
Membership
Defendants argue the trial court abused its discretion by
allowing the prosecution to introduce cumulative and excessive
evidence of their gang membership. We disagree.
22
1. Background
In his opening statement, Bonner’s counsel stated that
Bonner was “a member of the Denver Lane Bloods. No question
about it. You’re going to see tattoos. You’re going to see pictures,
and you’re going to know it beyond any doubt whatsoever.”
Parker’s counsel did not make a similar concession.
Later, defense counsel objected to the admission of videos
from Bonner’s Facebook account on several grounds, including
that they were cumulative to other evidence, and in Bonner’s
case, unnecessary given that his counsel conceded Bonner’s gang
membership in the opening statement. The trial court excluded
some videos as unduly prejudicial or duplicative but allowed two
showing Parker and Bonner singing together while throwing
gang signs, one of Bonner throwing gang signs, and one in which
Bonner displayed his tattoos.
Later, defense counsel objected to the admission of
printouts of Bonner’s Facebook postings and messages, again on
numerous bases including that the evidence was cumulative. The
printouts consisted of three exhibits. Exhibit 114 consisted of
31 pages of Facebook postings and messages primarily from
October and December 2015 and February 2016, some of which
included photographs, examples of which we describe further
below. Exhibit 115 consisted of two pages of a Facebook
exchange from February 23, 2016. Exhibit 116 consisted of
20 pages of Facebook messages primarily from September and
October 2015 and January and February 2016. The trial court
admitted the printouts with the exception of one post it found
highly prejudicial.
The videos and Facebook printouts were presented to the
jury during the testimony of Detective Christian Mrakich, the
23
prosecution’s gang expert. Mrakich explained that Bonner’s
name on Facebook was “HKBrayz,” with the “HK” signifying
“Hoover Killer,” a reference to the Hoover Criminals, a main rival
to the Denver Lane Bloods. Another name connected to Bonner
included “Figueroa,” a reference to turf claimed by the Denver
Lane Bloods.
Mrakich explained how the Facebook posts and messages
indicated defendants’ affiliation with the Denver Lane Bloods.
For example, he interpreted language used in the Facebook posts
and messages to indicate either Bonner’s fealty to the Denver
Lane Bloods or disrespect to rivals of that gang, including the
Hoover Criminals. Posts referred to a “homie” called “Keylow,”
whom Mrakich explained was Parker. Some posts referred to
firearms, and in three posts, Parker referred to himself or his
friends as a “shooter” or “shooterz.” In several posts, Bonner
purported to be in rival gang territory. In one exchange, someone
reported being shot by the Hoover Criminals.
The Facebook posts included some photographs of Bonner
wearing clothing referencing the Denver Lane Bloods, making
hand gestures disrespectful to the Hoover Criminals, or standing
in front of Denver Lane Bloods graffiti. Parker was in one of the
photographs also making gestures disrespectful to the Hoovers
Criminals. Another photograph showed Bonner and Parker with
other individuals Mrakich identified as Denver Lane Bloods
members. Mrakich interpreted the Facebook messages in
exhibit 116 as Bonner attempting to obtain a gun.
Mrakich testified regarding the Facebook videos, which he
explained showed Bonner, or Bonner and Parker together,
throwing gang signs, and Bonner displaying his tattoos. He also
analyzed for the jury photographs of Bonner’s tattoos, and
24
explained how the tattoos were connected to the Denver Lane
Bloods. Mrakich stated that Parker’s tattoos were not gang
related.
Mrakich opined that Bonner was a member of the Denver
Lane Bloods based on his tattoos, Facebook posts and messages
with gang jargon, photographs and videos of Bonner displaying
gang signs, Bonner’s association with other gang members, and
recorded calls to which Mrakich had listened in which Bonner
used gang jargon. Mrakich further opined that Bonner was an
active gang member given how active he was on Facebook with
gang-related messages.
Mrakich similarly opined that Parker was an active
member of the Denver Lane Bloods based on Bonner’s Facebook
postings referring to Parker, the photographs and videos,
Parker’s association with other gang members, and recorded calls
to which Mrakich had listened.
2. Analysis
“ ‘Gang evidence is admissible if it is logically relevant to
some material issue in the case other than character evidence,
is not more prejudicial than probative, and is not cumulative.
[Citations.] . . . [¶] However, gang evidence is inadmissible if
introduced only to “show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant
committed the charged offense. [Citations.]” [Citations.] . . .
Even if gang evidence is relevant, it may have a highly
inflammatory impact on the jury. Thus, “trial courts should
carefully scrutinize such evidence before admitting it.” ’
[Citation.]” (People v. Coneal (2019) 41 Cal.App.5th 951, 964
(Coneal), final bracketed insertion added.) We review a trial
25
court’s decision to admit gang evidence for abuse of discretion.
(Ibid.)
On appeal, defendants do not take issue with any
particular items of gang evidence, instead raising a general
challenge that the gang evidence was cumulative and unduly
prejudicial. Bonner argues that, because his counsel conceded in
opening argument that Bonner was a gang member, the evidence
concerning his gang membership had minimal probative value
and instead served only to portray him as violent and dangerous.
Even if the evidence had some probative value, he argues, “the
evidence was cumulative—quite simply, the prosecution did not
need to present so much gang evidence.” Similarly, Parker
claims “[t]he highly inflammatory nature of the repetitive
discussion of gang membership, with accompanying social media
photos and posts, went beyond its probative value and rose to the
level of inadmissible character evidence.”
As an initial matter, Bonner’s counsel’s concession during
oral argument did not bar the prosecution from presenting the
case as it saw fit. (People v. Dykes (2009) 46 Cal.4th 731, 785
[“Ordinarily the prosecution ‘ “cannot be compelled to accept a
stipulation if the effect would be to deprive the state’s case of
its persuasiveness and forcefulness.” ’ [Citations.]”].)
Nor did the concession negate the probative value of the
evidence. The prosecution sought to prove not only that Bonner
was a member of the Denver Lane Bloods, but also that he
committed the charged offenses “for the benefit of, at the
direction of, or in association with” the gang, a necessary element
of the gang enhancement. (§ 186.22, subd. (b).) Similarly, one of
the special circumstances underlying the murder charges
required proof that Bonner committed the crime while “an active
26
participant” in the gang in order “to further the activities of the
criminal street gang.” (§ 190.2, subd. (a)(22).)
Bonner’s counsel’s concession that Bonner was a gang
member did not satisfy these additional elements. The gang
evidence, on the other hand, was highly probative as to these
elements, as it tended to show defendants’ active participation in
and enthusiasm for the gang and their antipathy and aggression
towards rival gangs. The evidence also was probative as to
defendants’ motive for carrying out the charged crimes, and to
the connection and friendship between defendants, whom the
prosecution sought to prove acted together in committing many of
the charged offenses.
Apart from Bonner’s contention that his counsel’s
concession rendered the gang evidence unnecessary, defendants
do not explain why any particular item of gang evidence was
cumulative or unduly prejudicial. Instead, they claim there
simply was too much of it. Such an argument is insufficient on
appeal. (See Coneal, supra, 41 Cal.App.5th at p. 963 [“Absent an
analysis of specific [gang] evidence, reference to volume alone is
meaningless.”].)
We disagree, moreover, that the evidence was excessively
cumulative. As discussed, the evidence served to illustrate not
only defendants’ membership in the gang, but also their active
participation in and enthusiasm for the gang, their antipathy
towards rival gangs, and their association with one another.
Different evidence supported different points, and it therefore is
misleading to lump it all together as cumulative or duplicative
gang evidence. Even when some evidence was repetitive, such as
the multiple photographs and videos of Bonner and Parker
together throwing gang signs, it was probative to establish that
27
defendants engaged in the conduct over a period of time, and not
just on one or two isolated occasions.
Defendants also fail to show the gang evidence was unduly
prejudicial. This was a case in which defendants’ gang
membership was a central theme. They were accused of
committing a series of violent crimes over the course of several
months, often together, on behalf of their gang. It therefore was
appropriate that the prosecution would emphasize repeatedly
defendants’ gang affiliation, and would offer evidence that
defendants were enthusiastic and loyal gang members. In the
absence of specific argument from defendants as to why
particular items of evidence were unduly prejudicial, we cannot
conclude the trial court abused its discretion by admitting the
gang evidence.
E. The Trial Court Did Not Err In Admitting
Edward F.’S Testimony From the Preliminary
Hearing
Parker challenges the admission at trial of the preliminary
hearing testimony of Edward F., the carjacking victim. Bonner
joins in the argument. We conclude there was no error.
1. Background
At defendants’ preliminary hearing, Edward F. testified
that while he was fueling his white Volkswagen Beetle at a gas
station, two men approached him. The men asked where he was
from, and stated they were Denver Lane Bloods. One of the men
reached for Edward F.’s necklace, and Edward F. slapped the
man’s hand away. The man drew a gun, and Edward F. fled.
One or both of the men then drove off in Edward F.’s Volkswagen.
According to the police report, Edward F. told the police one of
28
the men had a cast on his arm, but Edward F. testified he did not
remember saying that.
Both Parker’s and Bonner’s counsel cross-examined
Edward F. at the preliminary hearing.
At trial, the trial court found that despite all reasonable
efforts, the prosecution had been unable to secure the presence of
Edward F. to testify. As a result, the trial court permitted the
prosecution to read to the jury Edward F.’s preliminary hearing
testimony, including defendants’ counsels’ cross-examination.
In addition to Edward F.’s prior testimony, the prosecution
presented surveillance video from the gas station at the time of
the carjacking, which among other things showed the two
perpetrators arriving in a black Volkswagen Beetle with one
white fender and a missing gas cap. Cellphone location data
placed Parker’s and Bonner’s phones near the gas station around
the time of the carjacking.
The prosecution also played a recording of Edward F.’s 911
call reporting that two black men, one with a cast, had taken his
car at gunpoint. The jury heard testimony from police that
Edward F. had made a similar report to investigators. A police
officer testified he encountered Parker on two occasions a few
days after the carjacking, and both times Parker stated that he
had broken his arm and had recently had the cast removed.
A woman who was Parker’s girlfriend at the time of the
carjacking testified she had a black Volkswagen Beetle with a
missing gas cap and one fender lighter than the rest of the car,
and identified the car in the surveillance video as her Beetle. She
testified that Parker sometimes drove her car. She remembered
that about three years earlier (that is, 2016), Parker had a cast
on his hand.
29
2. Analysis
Parker does not dispute the finding that Edward F. was
unavailable despite the prosecution’s reasonable efforts but
contends the admission of Edward F.’s earlier testimony violated
his right to confrontation under the Sixth Amendment to the
United States Constitution.
“ ‘A defendant has a constitutional right to confront
witnesses, but this right is not absolute. If a witness is
unavailable at trial and has testified at a previous judicial
proceeding against the same defendant and was subject to cross-
examination by that defendant, the previous testimony may be
admitted at trial.’ ” (People v. Valencia (2008) 43 Cal.4th 268,
291 (Valencia).) “[F]or the prior testimony to be admissible, the
defendant must have had the opportunity to cross-examine the
witness at that hearing with an interest and motive similar to
that which defendant has at the hearing at which the testimony
is admitted.” (Id. at p. 292.)
Although both Parker’s and Bonner’s counsel cross-
examined Edward F. at the preliminary hearing, Parker argues
his counsel lacked motive and opportunity to cross-examine
similar to trial because “the purpose of a preliminary hearing is
to show ‘probable cause’[,] not guilt beyond a reasonable doubt.”
Parker claims that “[d]uring a preliminary hearing counsel is
constrained by the court to only inquir[e] in relation to testimony
and evidence that goes to probable cause. A full and complete
cross-examination of a witness is not allowed.”
In support, Parker quotes a footnote from People v. Johnson
(1968) 68 Cal.2d 646 (Johnson), which interpreted the United
States Supreme Court’s decision in Barber v. Page (1968)
390 U.S. 719 to “cast doubt on the widely held assumption that
30
cross-examination at a preliminary hearing, as distinguished
from a trial, is constitutionally adequate to permit subsequent
use of the witness’ direct testimony under the ‘former testimony’
exception.” (Johnson, at p. 659, fn. 9.) Barber, as quoted in
Johnson, stated, “ ‘The right to confrontation is basically a trial
right. It includes both the opportunity to cross-examine and the
occasion for the jury to weigh the demeanor of the witness. A
preliminary hearing is ordinarily a much less searching
exploration into the merits of a case than a trial, simply because
its function is the more limited one of determining whether
probable cause exists to hold the accused for trial.’ ” (Johnson, at
p. 659, fn. 9, quoting Barber, at p. 725.)
Johnson did not concern the admission of preliminary
hearing testimony, but grand jury testimony provided in the
absence of the defendant or defense counsel, with no opportunity
for cross-examination. (Johnson, supra, 68 Cal.2d at p. 654.)
Johnson’s footnote regarding Barber therefore would appear to be
dicta.
More important, the United States Supreme Court made
clear in California v. Green (1970) 399 U.S. 149 that, despite the
language in Barber, preliminary hearing testimony could be
admissible at trial in the case of an unavailable witness. (Green,
at p. 165.) In that case, the witness at issue had testified under
oath at the preliminary hearing, the defendant was represented
by counsel who had the opportunity to cross-examine, “and the
proceedings were conducted before a judicial tribunal, equipped
to provide a judicial record of the hearings.” (Ibid.) The court
concluded these “circumstances closely approximat[ed] those that
surround the typical trial,” and therefore satisfied the
constitutional right to confrontation. (Ibid.) The court
31
acknowledged the language in Barber that a preliminary hearing
“is ordinarily a less searching exploration into the merits of a
case than a trial,” but noted that Barber also “recognized that
‘there may be some justification for holding that the opportunity
for cross-examination of a witness at a preliminary hearing
satisfies the demands of the confrontation clause where the
witness is shown to be actually unavailable . . . .’ ” (Green,
at p. 166.)
Consistent with Green, our Supreme Court has upheld the
admission of preliminary hearing testimony when the witness is
unavailable at trial. (Valencia, supra, 43 Cal.4th at pp. 293–294.)
Only “in an extraordinary case” would it be “ ‘ “necessary to
explore the character of the actual cross-examination to ensure
that an adequate opportunity for full cross-examination had been
afforded to the defendant.” ’ [Citation.]” (Id. at p. 294.) Thus, we
reject Parker’s suggestion that Johnson is a per se bar to the use
of preliminary hearing testimony at trial.
Apart from the citation to Johnson, Parker offers no
support for his contention that his counsel could not conduct an
adequate cross-examination of Edward F. at the preliminary
hearing. Indeed, he does not discuss the specifics of Edward F.’s
testimony or his counsel’s cross-examination at all. Parker
therefore has failed to show this is “an extraordinary case”
requiring further scrutiny of the preliminary hearing to
determine if it satisfied defendants’ confrontation rights.
(Valencia, supra, 43 Cal.4th at p. 294.)
Parker’s argument also fails because he makes no effort to
demonstrate prejudice. He does not explain how Edward F.’s
testimony affected the case, and how the outcome might have
been different had the trial court excluded the testimony, despite
32
the other evidence presented. Again, Parker does not discuss the
contents of Edward F.’s testimony at all. Absent a showing of
prejudice, Parker’s challenge fails even assuming arguendo the
trial court erred in admitting Edward F.’s testimony.
F. Parker Fails To Show His Counsel Was Ineffective
Parker claims his trial counsel was constitutionally
ineffective in a variety of ways. We reject this challenge.
To demonstrate ineffective assistance of counsel, Parker
“ ‘must show that counsel’s performance was deficient, and that
the deficiency prejudiced the defense.’ [Citation.]” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165 (Johnsen).) “ ‘Reviewing
courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation],
and there is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
[Citation.]’ ” (People v. Campbell (2020) 51 Cal.App.5th 463, 504.)
“On direct appeal, a finding of deficient performance is
warranted where ‘(1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.’
[Citation.] ‘[W]here counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find
ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions.’ [Citation.]”
(Johnsen, supra, 10 Cal.5th at p. 1165.)
We discuss each of Parker’s contentions in turn.
33
1. Parker fails to show counsel was ineffective for
failing to retain experts
Parker contends his counsel was ineffective because
counsel did not retain or consult with a “gang expert,” a
“cellphone GPS expert,” or a “DNA expert.” Parker argues a gang
expert potentially could have countered the prosecution’s gang
expert’s opinion that Parker’s offenses were committed for the
benefit of the gang or could have undercut some of the
prosecution’s assertions about gang culture. He claims a
cellphone GPS expert could have explained that the cell tower
location data introduced against Parker was not reliable. He
asserts a DNA expert could have tested the physical evidence and
confirmed that Parker’s DNA was not on it.
Parker does not identify anywhere in the record
“ ‘affirmatively disclos[ing] [that] counsel had no rational tactical
purpose’ ” for not calling these experts, or indicating that
“ ‘counsel was asked for a reason and failed to provide one.’ ”
(Johnsen, supra, 10 Cal.5th at p. 1165.) Nor do we agree there
can “ ‘be no satisfactory explanation.’ ” (Ibid.) For example,
Parker does not identify any evidence in the record to support his
claim that his counsel did not even consult with any experts, so it
is conceivable counsel did so and concluded the experts would not
provide helpful testimony. It is also conceivable counsel believed
undercutting the prosecution’s experts through cross-
examination would be more fruitful than calling his own experts.
Parker’s speculation as to what experts might have
testified, moreover, is insufficient to establish prejudice. Apart
from broad generalities, Parker does not explain what specific
evidence the experts might have provided. Indeed, it is pure
conjecture that his counsel could have found experts that would
34
have provided testimony useful to him. We therefore cannot
conclude that counsel was ineffective for failing to retain experts.
2. Parker fails to show counsel was ineffective for
not investigating or calling witnesses identified
by Parker
Parker contends his counsel was ineffective because he
failed to investigate or call alibi and character witnesses. He
claims counsel “made no effort” in this regard, despite Parker
repeatedly bringing potential witnesses to counsel’s attention,
and even misled Parker to believe counsel had interviewed
witnesses when counsel in fact had not. Parker asserts it was “a
complete surprise” that counsel did not call a single witness
because “as recent as that morning, defense counsel assured
[Parker] that he had subpoenaed several of the witnesses
[Parker] identified.”
Parker provides no record citations in support of the
contention that counsel failed to investigate or call witnesses
identified by Parker. Nor can we readily determine where in the
vast appellate record, consisting of more than 25 volumes of
reporter’s transcript and 8 volumes of clerk’s transcript, evidence
in support of Parker’s argument may be. We therefore deem the
challenge forfeited. (People v. Hoyt (2020) 8 Cal.5th 892, 939
(Hoyt) [claim of error forfeited by failure to support arguments
with record citations].)
Parker also fails to show prejudice. He does not identify
the witnesses he claims his counsel should have called or explain
what testimony those witnesses might have provided. We
therefore cannot assess what impact, if any, counsel’s purported
failure to call those witnesses had on the outcome of the trial.
35
3. Parker fails to show counsel was ineffective
based on counsel’s poor relationship with
Parker
Parker claims he had a “strained relationship” with his
counsel and they disagreed over trial strategy and counsel’s
preparedness. Parker contends he “did not receive timely
information from defense counsel” and “could not get straight
answers from defense counsel regarding the state of discovery.”
Parker claims counsel would inform him of one strategy and then
do something different or nothing at all; when Parker brought
this to counsel’s attention, counsel “would always blow him off.”
Parker asserts that counsel eventually stopped explaining
anything to him and would become angry if Parker asked
questions. Parker claims counsel told him counsel did not care
what Parker thought or whether Parker agreed with counsel, and
if Parker did not like what counsel was doing, Parker could
represent himself.
Again, Parker fails to provide any record citations in
support of the above assertions, and therefore forfeits his
arguments based on them.7 (Hoyt, supra, 8 Cal.5th at p. 939.)
7 Our own review of the record indicates that some of
Parker’s assertions in part F.3 here and the following part F.4
echo complaints he raised below in a hearing pursuant to People
v. Marsden (1970) 2 Cal.3d 118, which took place following
closing arguments. Parker complained that his counsel had done
only “the b[are] minimum” in preparing his defense and had not
put forth certain evidence or arguments Parker had suggested.
Parker also reported that he and his counsel “got into it
throughout the whole trial,” culminating in counsel telling
Parker, “ ‘Well, if you want to fight the case by yourself, do that.
36
Parker also fails to show that his purportedly poor
relationship with counsel prejudiced his defense. He claims the
relationship made Parker “feel like he was not able to participate
in his own defense without losing his attorney in the middle of
the trial.” Assuming arguendo that was so, it does not establish
that the defense mounted by counsel was unsatisfactory, or that
the outcome might have been different had counsel gotten along
better with Parker.
4. The length and substance of Parker’s counsel’s
arguments and filings do not establish
ineffective assistance
Parker claims his counsel was ineffective because he was
“only willing to do the bare minimum in his representation of
[Parker].” In support, he notes the brevity of his counsel’s
opening statement (approximately one page of the reporter’s
transcript) and closing argument (approximately 28 pages) in
comparison to the prosecution’s (approximately 36 and 116 pages,
respectively).
A mere comparison of the length of arguments is
insufficient to show ineffective assistance of counsel. The
prosecution has the burden to prove every element, a burden the
defense does not share, so it is unsurprising that the
I give you these papers, you fight by yourself.’ ” Parker’s counsel
did not corroborate any of Parker’s assertions, instead stating he
had tried to investigate all leads and incorporate Parker’s
suggestions into the closing argument. The trial court found that
Parker’s counsel had provided adequate representation and
declined to replace him.
37
prosecution’s arguments would be lengthier than the defense’s
arguments.
Parker also argues that the substance of counsel’s opening
statement and closing argument was deficient. He asserts that
the prosecution’s opening statement “laid out a detailed road map
of the case, the players, and the evidence,” whereas Parker’s
counsel merely “informed the jury that in a few months, at the
end of the trial[,] defense counsel thought they would find
[Parker] not guilty.”
Again, given the burden of proof, we would expect the
prosecution to use the opening statement to provide a roadmap
for the jury, especially in a case with as many counts as this one.
We would not expect the same of defense counsel. Parker,
moreover, does not explain what specifically defense counsel
should have said in opening and how that might have affected
the outcome, and therefore fails to show prejudice.
Parker identifies points he contends his counsel “assured”
him he would raise in closing argument but did not. Specifically,
he contends his counsel should have argued that it would have
been impossible for a deputy sheriff to have seen Parker discard a
weapon, as the deputy claimed. Parker further contends that his
counsel should have argued that when the deputy found the
Mercedes involved in the Johnson murder, Parker’s car was
parked right next to it, and therefore there was a possibility that
when the deputy claimed he saw Parker get out of the Mercedes,
Parker in fact was getting out of his own car.8
8 Parker again does not support his argument with record
citations. Based on the statement of facts in his brief, we
presume he is referring to the deputy sheriff who testified that he
38
As an initial matter, Parker’s counsel did argue in closing
that it would have been difficult for the deputy to see what he
claimed to have seen, given that it was nighttime and the deputy
was at a distance. Parker’s counsel also emphasized at least
twice that Parker’s car was parked near the Mercedes. Thus, to
the extent Parker’s counsel assured Parker he would raise these
points, it would appear he did so.
Also, again, Parker fails to show prejudice. Simply
identifying two arguments his counsel could have made, or made
more strongly, is insufficient without an analysis of how those
arguments, and the evidence to which they pertain, fit in to all of
the arguments and evidence heard by the jury. Without this
analysis, Parker cannot establish that the outcome of the trial
might have been different had his counsel acted differently.
Finally, Parker argues his counsel was ineffective because
counsel filed a one-and-a-half page motion for a new trial,
whereas Bonner’s counsel filed a 17-page motion. This argument
is meaningless without a discussion of the contents of the two
motions, which Parker does not provide.9 Nor does Parker
observed three black men getting out of a Mercedes and run
away. The driver of the Mercedes got out shortly thereafter and
ran behind a wall by a trash bin. The deputy approached the
trash bin and saw a person he identified as Parker placing a
black object on the ground. After the deputy’s partner detained
Parker, the deputy examined the area near the trash bin and
“saw the pistol exactly where [Parker] leaned down and placed
it.”
9 Parker’s motion for a new trial asserted insufficiency of
the evidence, stating, “The circumstantial nature of the evidence
combined with the sheer number of charges as well as prejudicial
39
identify issues his counsel should have, but did not, raise in the
motion for a new trial. Regardless, Parker has had full
opportunity to raise his challenges in this appeal, and we have
concluded they are without merit. Thus, his counsel’s failure to
raise those challenges in a new trial motion did not prejudice
Parker.
DISPOSITION
The judgment as to Cedrick Devontae Parker is affirmed.
The judgment as to Deandray Bonner is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CRANDALL, J.*
gang-related evidence bolstered individual counts that were weak
in evidence against him.” Bonner’s motion was based on the
imposition of stealth belts, admission of gang evidence, and the
impeachment of Dominique M., all challenges we have considered
and rejected in this appeal. At the hearing on the motions,
Parker’s counsel joined Bonner’s arguments concerning the
stealth belts.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
40