P. v. Hunter
Filed 7/29/13 P. v. Hunter CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff
and Respondent,
v.
ADRIAN DEON HUNTER,
Defendant
and Appellant.
B243069
(Los
Angeles County
Super. Ct.
No. GA081402)
APPEAL
from a judgment of the Superior Court of
County,
Teri Schwartz, Judge. Affirmed.
Adrian
Deon Hunter, in pro. per.; and Joshua L. Siegel, under appointment by the Court
of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_______________________
Adrian Deon Hunter appeals from the judgment entered
following his convictions after a jury trial on three counts of
criminal-street-gang enhancements.
No meritorious issues have been identified following a review of the
record by Hunter’s appointed counsel and our own independent review of the
record and analysis of the contentions presented by Hunter in a typed
supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.
The
Information
An
information charged Hunter with three counts of second degree robbery (Pen.
Code, § 211).
counts it was specially alleged Hunter had personally used a firearm (§
12022.53, subd. (b)), a principal was armed with a firearm (§ 12022.53,
subd. (b) and (e)(1)) and the crime was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)). In addition the information specially alleged
Hunter had suffered one prior serious or violent felony conviction for robbery
within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)) and section 667, subdivision (a)(1), and had previously served
one separate prison term for a felony (§ 667.5, subd. (b)). Represented by appointed counsel Hunter
pleaded not guilty and denied the special allegations.
2.
Hunter’s Pretrial Motions
Prior to trial Hunter moved on three separate
occasions to have new appointed counsel (People
v. Marsden (1970) 2 Cal.3d 118) and, when that request was denied, to
represent himself (Faretta v. California
(1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]). The trial court heard and denied each
request.
The trial court granted Hunter’s motion to
bifurcate the trial of his prior conviction allegations.
3.
Summary of Evidence Presented at Trial
The primary issue at trial was
whether Hunter had participated as an aider and abettor with codefendant Jaetae
Williams in committing a series commercial robberies that occurred in close
proximity on September 28, 2010.
On the afternoon of
the robberies Paramjit Kaur was working as a cashier at liquor store when two
men, one armed with a gun, entered the store and demanded the money from the
cash register. One man was wearing a
gray hooded sweatshirt, and the other was wearing a black hooded
sweatshirt. Kaur opened the cash
register, and the men removed the money and left the store. Kaur telephoned the police and gave officers
copies of the store surveillance videos, which were subsequently played for the
jury. Kaur was unable to identify either of the robbers. Officers later searched Williams’s house and
found a gray hooded sweatshirt that matched the sweatshirt worn by one of the
robbers.
The same afternoon Jorawar Singh was working as a cashier at
a gas station when two men entered the convenience store and demanded money
from the cash register. One man was
wearing a black hooded sweatshirt and holding a gun; the other man was wearing
a gray hooded sweatshirt. After the
robbers fled with the money, Singh notified the police. Copies of the gas station’s surveillance
videos were played for the jury. Singh
was unable to identify either of the robbers.
Later on September 28, 2010 Janell Morgan was working as a cashier at another gas station
when two men, one wearing a black hooded sweatshirt and the other wearing a
gray hooded sweatshirt, entered the store.
The man in the black sweatshirt, who Morgan identified as Hunter,
demanded the money from the cash register at gunpoint. After Morgan opened the cash register, the
men removed the money and left the store.
The gas station’s surveillance videos were played for the jury.
Alec
Call, who worked next to the gas station where Morgan was employed, saw two men
wearing hooded sweatshirts arrive in a black sedan, park in the lot in front of
his office and walk to the gas station.
Call wrote down the license plate number; drew the car’s emblem, a Chevy
Impala; and gave the information to the police.
Police
officers located the sedan, which was owned by Dashawn Combs, and followed it
to the Avalon housing projects. A search
of Combs’s residence uncovered a handwritten note with Williams’s name on it.
After
Hunter was arrested on October 18, 2010,
Detective Keith Soboleski advised him of his rights to remain silent, to the
presence of an attorney and, if indigent, to appointed counsel (
[86 S.Ct. 1602, 16 L.Ed.2d 694]). Hunter
agreed to be interviewed. He initially
denied knowing Williams but then admitted Williams was his godbrother. Hunter also admitted having associating with
several members of the Avalon Garden Crips (A.G.C.) gang but denied he was a
gang member.
Los Angeles Police Officer
Armando Leyva testified as an expert on the A.G.C. gang. According to Leyva, the gang had
approximately 160 members including Williams, Combs and Hunter, each of whom
had admitted his gang membership to Leyva.
The primary activities of the A.G.C. gang were robbery, assault with
deadly weapons, burglary, kidnapping and homicide. Leyva described two robberies committed by
A.G.C. members in 2009 and 2010. Hunter
had A.G.C. gang tattoos on his shoulders.
When presented with a hypothetical based on the facts of this case,
Leyva opined the crimes would have been committed for the benefit of the A.G.C.
gang and with the intent to promote future criminal conduct by A.G.C. gang
members.
Hunter neither testified nor
introduced other evidence in his defense.
4. Verdict
and Sentencing
The jury found Hunter guilty on
all counts and found true the personal firearm-use and criminal street gang
enhancement allegations. Hunter waived
his right to a jury trial and elected to have a bench trial on the prior
conviction allegations. Following the
bench trial the court found true the prior strike conviction as alleged in the
information but found not true the prior prison term allegation.
The court sentenced Hunter to
an aggregate state prison term of 48 years 4 months: On count 2, six years (the middle term of
three years doubled under the three strikes law) for second degree robbery,
plus 10 years for the criminal street gang enhancement, plus 10 years for the
firearm-use enhancement; on each of counts 3 and 4, a consecutive term of
two years (one-third the middle term of three years doubled under the three
strikes law) for second degree robbery, plus one-third of 10 years for the
criminal street gang enhancement, plus one-third of 10 years for the
firearm-use enhancement. The court also
imposed a five-year term for the prior serious felony enhancement. The court awarded Hunter presentence custody
credit of 753 days (655 actual days and 98 days of conduct credit). The court ordered Hunter to pay
a $40 court security fee and a $30 criminal conviction assessment on each count
and a $200 restitution fine. The court
imposed and suspended a parole revocation fine pursuant to section 1202.45.
5. Hunter’s Attempts To Address the Jury
Just
before closing arguments Hunter attempted to address the jury regarding the
testimony of one of the People’s witnesses allegedly contradicted by statements
in the police report. The trial court
refused to allow Hunter to speak to the jury noting he had elected not to
testify. However, the court told Hunter
he could bring the police report containing the purported contradictory
statements to the next court hearing.
The
following day the jury announced it had reached a verdict. As the verdicts were being read, Hunter spoke
to the jury. After being ordered by the
trial court to stop, Hunter was removed from the courtroom for ignoring the
order and continuing to address the jury.
Once the jury was excused, the trial court informed Hunter of the
verdicts and asked him about the police report he had intended to bring to
court. Hunter responded he did not have
the police report and said the copy defense counsel gave him did not match his
own copy. The court then told Hunter he
could bring his copy of the report to the sentencing hearing. The record does not indicate Hunter produced
the report at the sentencing hearing.
DISCUSSION
We
appointed counsel to represent Hunter on appeal. After examination of the record counsel filed
an opening brief in which no issues were raised. On January 16, 2013 we advised Hunter he had 30 days within which to personally
submit any contentions or issues he wished us to consider. We granted Hunter two extensions of time and
received a typed, 76-page supplemental brief, including exhibits, in which he
challenged his conviction on a number of grounds.
To
the extent they can be understood, Hunter’s claims are he was deprived of his
right to a jury trial on his prior conviction allegations; the expert witness’s
testimony Hunter was a gang member was inadmissible hearsay; the prosecutor
improperly excluded qualified jurors based on race, influenced the testimony of
the robbery victims and tampered with the evidence; the jury was biased and
engaged in misconduct; his defense counsel rendered ineffective assistance; and
his convictions were not supported by substantial evidence.
After
considering Hunter’s claims, we conclude they are without merit. Hunter waived his right to a jury trial in
favor of a bench trial on his prior
conviction allegations; and, in any event, a bench trial on prior conviction
allegations is not unconstitutional. (
his gang membership during an interview was not inadmissible hearsay. (See Evid. Code, § 1220.) There is no transcript of the jury voir dire
in the record on appeal to review for racially motivated peremptory
challenges. (See Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d
69].) Having failed to complain of
prosecutorial misconduct at trial, Hunter has forfeited the issue on
appeal. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) In any event,
nothing in the record indicates the prosecutor committed
court proceedings. (People v. Avila (2009) 46 Cal.4th 680, 711.) The record also fails to demonstrate the jury
was biased or engaged in any misconduct (In
re Boyette (2013) 56 Cal.4th 866, 888-898) or defense counsel provided
ineffective assistance. (Strickland v.
Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Finally, substantial evidence supported his
robbery convictions (see People v. Bolin
(1998) 18 Cal.4th 297, 331).
We
have examined the entire record and are satisfied Hunter’s counsel has complied
fully with his responsibilities and no arguable issues exist. (Smith
v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];
441.)
The
judgment is affirmed.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
to the Penal Code unless otherwise indicated.
dismissed an additional count of
attempted robbery in furtherance of justice on
the People’s motion.
