P. v. Cross
Filed 6/21/06 P. v. Cross CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H028486
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. FF404791)
WILLIE MACK CROSS,
Defendant and Appellant.
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I. Defendant Willie Mack Cross and three co-defendants were jointly charged with second degree burglary (Pen. Code, §§ 459-460, subd. (b)), flight from a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), and vandalism causing $400 or more in damage (Pen. Code, § 594, subds. (a) & (b)(1)).[1] The burglary count included allegations that defendant took or damaged property valued in excess of $50,000, that the theft involved more than $100,000, and that the crime was committed for the benefit of a criminal street gang. Defendant entered a negotiated plea of no contest to the burglary count and admitted damage in excess of $50,000, a prior strike conviction, and the gang allegation. In exchange, the flight and vandalism counts were dismissed, with a Harvey[2] waiver as to the latter count. The trial court sentenced defendant to a total prison term of four years, eight months, with the gang enhancement accounting for two years of the sentence. On appeal, defendant contends the trial court erred (1) in denying defendant's post-plea motion for substitution of counsel, and (2) in denying defendant effective assistance of counsel at a critical stage in the proceedings. Factual Background
A. Preliminary Hearing[3]
At approximately 4:00 a.m. on January 8, 2004, Gilroy police officers responded to an alarm at a Zales jewelry store. As one officer was approaching the store, he saw a vehicle leaving the area and followed it. The officer ran a license check and determined the car was a rental vehicle from the Los Angeles area. The officer activated his emergency lights and a chase ensued. At one point during the pursuit, the car slowed and pulled to the side of the road. Two male passengers got out of the car and ran into the bushes. A third male passenger exited the car about 100 yards later. The chase continued until spike strips disabled the car. The driver, co-defendant Victoria Jefferson, was taken into custody.
During the pursuit, one of the car's occupants threw torn pieces of paper out the window. The pieces were later recovered and led police to co-defendant Benny Harris. Defendant was detained after he was found walking along the road between where the paper was discarded and the male suspects exited the car.
In the trunk of the car, police found pillowcases containing Zales jewelry with a total estimated retail value of $125,000. Police also found a crowbar, a screwdriver and a backpack containing documents and other items related to co-defendant Antonio Neely. Fingerprints taken from the car were identified as belonging to Neely and Harris.
Store surveillance video showed four individuals enter Zales through a back door. The intruders smashed the jewelry cases with a crowbar and loaded the jewelry into pillowcases. The clothing defendant was wearing when he was detained that night matched the clothing of one of the four suspects shown in the store video.
Los Angeles Police Officer Robert Murray provided expert testimony regarding the gang allegations. Murray testified that defendant's two male co-defendants, Harris and Neely, were self-admitted members of a Los Angeles criminal street gang known as Black P Stone. Both Harris and Neely had gang tattoos at the time of the hearing, and gang-related photographs were found at Harris' home. Murray opined that Harris and Neely were members of the gang at the time of the Zales burglary.
Murray also testified that on five to six occasions, while in Black P Stone territory, defendant admitted that he was a member of another Los Angeles Blood gang, Bounty Hunters. At the time of the hearing, defendant had a pit bull tattoo, which Blood gang members use as a symbol. The words â€
