P. v. Gray
Darrell Martin Gray appeals from a judgment after a jury convicted him of special circumstances first degree murder, shooting at an occupied motor vehicle, conspiracy to commit murder, three counts of premeditated and deliberate attempted murder, and street terrorism, and found true he committed the offenses for the benefit of a criminal street gang, and he was a gang member who vicariously discharged a firearm and caused great bodily injury. Gray argues his defense counsel, who has since been disbarred, was ineffective and the prosecutor committed multiple instances of misconduct. In our prior nonpublished opinion, People v. Gray (Feb. 25, 2013, G045645) (Gray I), we concluded Gray’s trial counsel was inadequate and the prosecutor committed one instance of misconduct, but we also concluded Gray was not prejudiced.
Gray filed a motion to augment the record and a petition for rehearing. In his rehearing petition, Gray argued, among other things, we erred in relying on a transcript of Gray’s pretrial admissions to investigators because the transcript Gray’s appellate counsel introduced into evidence at the new trial hearing did not accurately reflect Gray’s video recorded statements. The video, however, was never introduced into evidence or marked as an exhibit, and therefore, is not part of the record on appeal. Consequently, we denied his motion to augment the record but granted the rehearing petition and stayed the appeal to allow Gray time to file a petition for writ of habeas corpus. Gray filed a request for judicial notice, which we also denied. Gray filed a request for habeas corpus investigation fees. Instead of ruling on that motion, we ordered the parties to brief the issue of whether Gray’s appellate counsel, the same counsel who represented Gray during the motion for new trial proceedings, has a disqualifying conflict of interest because he apparently inadvertently admitted into evidence at the new trial hearing the evidence that is the subject of the discrepancy. The parties briefed that issue, but Gray also filed a renewed motion for judicial notice and a brief indicating he will not file a petition for writ of habeas corpus until his appeal is resolved.
Thus, we again conclude Gray’s defense counsel was ineffective and the prosecutor committed one instance of misconduct but Gray was not prejudiced. We affirm the judgment.
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