P. v. Craver
Filed 4/6/06 P. v. Craver CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
| THE PEOPLE, Plaintiff and Respondent, v. ANDRE L. CRAVER, Defendant and Appellant. |
C047916
(Super. Ct. No. 01F07610)
|
Defendant Andre L. Craver appeals following his conviction for first degree murder (Pen. Code, § 187[1]), committed during commission of a burglary (§ 190.2, subd. (a)(17)), in which defendant was a principal and at least one principal was armed with a firearm (§ 12022, subd. (a)(1)). Defendant contends the trial court erred in denying his motion for a new trial (§ 1181), which asserted grounds of ineffective assistance of counsel, insufficiency of the evidence, and prosecutorial misconduct. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The information was filed in December 2001. As ultimately amended, it charged defendant and codefendants Eric Linell Shelmire and Gerald Jones, Jr.,[2] with first degree murder of Justin Roberts on September 14, 2001, with a firearm, during a burglary (§§ 187, 190.2, subd. (a)(17), 12022, subd. (a)(1)). The information also alleged attempted robbery as a special circumstance, but the prosecutor expressed an intent to dismiss it after the jury deadlocked on it.
On March 1, 2002, the trial court relieved the Public Defender's office due to a conflict and appointed Julian Macias to represent defendant. The court subsequently appointed additional counsel, Lisa Franco, who handled the DNA issues in the case.
In July 2003, the trial began, with a separate jury for each defendant.
Evidence adduced for defendant's jury included the following:
On September 14, 2001, around 4:00 a.m., victim Justin Roberts was fatally shot in his apartment. Roberts grew marijuana on his patio for medicinal purposes but also sold it to his friends. Officers found marijuana valued at over $7,000.
Roberts's girlfriend, Sally Lewis, testified she and Roberts and their two children occupied the master bedroom, while Sally's brother (Levi Lewis) slept in the second bedroom, and friend Eric Aguiar slept on the living room couch. On the night in question, Sally awoke and heard signs of a struggle. She followed Roberts down the hall and was blinded when he turned on the hall light. Sally heard three gunshots fired in quick succession and then heard the window blinds fluttering. She gathered her children and returned to the living room, where Aguiar was bleeding from the head.[3] Levi joined them. They found Roberts on the bathroom floor, bleeding to death. Aguiar performed CPR but was unable to save him. It was stipulated Roberts died of a gunshot wound to the chest.
Aguiar testified he had been asleep on the couch situated perpendicular to the living room window, with the window open a crack, when he heard the window blinds crashing and felt an intruder land on top of him and strike him in the head with something metallic. The assailant yelled â€
