People v. Anderson

• Decision Date: 10 March 2015
• Docket Number: B245674
• Citation: 185 Cal.Rptr.3d 75,234 Cal.App.4th 1411
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clyde Wesley ANDERSON, Defendant and Appellant.

234 Cal.App.4th 1411

185 Cal.Rptr.3d 75

The PEOPLE, Plaintiff and Respondent

v.Clyde Wesley ANDERSON, Defendant and Appellant.

B245674

Court of Appeal, Second District, Division 1, California.

Filed March 10, 2015

Gail Harper, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

CHANEY, J.

Clyde Wesley Anderson appeals from his conviction for the murder of Dominique McDaniel on three grounds: that he was deprived of representation by competent counsel at his preliminary hearing; that there is insufficient evidence to support his murder conviction; and that there is insufficient evidence to support the gang enhancements. We disagree, and affirm the judgment.

Background

Anderson was charged by amended information with the first degree murder of Dominique McDaniel (Pen. Code, § 187, subd. (a) ), and the attempted murder of Brandy Smallwood (Pen. Code, §§ 187, subd. (a), 664 ).¹ The information alleged as to both counts that Anderson personally and intentionally discharged a firearm causing great bodily injury and death (former § 12022.53, subds. (d) & (e)(1)); that he personally and intentionally discharged a firearm (former § 12022.53, subds. (c) & (e)(1)); that he personally used a firearm (former § 12022.53, subds. (b) & (e)); and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)), causing the offense to be classified as a serious felony (§ 1192.7, subd. (c)(28)). A number of prior juvenile and serious felony convictions were alleged. Anderson pleaded not guilty to the charged offenses and denied the special allegations.

A jury acquitted Anderson of the attempted murder of Smallwood, but deadlocked (one juror favoring acquittal) on the charged murder of McDaniel. Following a second trial for the murder of McDaniel, the jury convicted Anderson of first degree murder and found the firearm and gang allegations true. In a bifurcated court trial the court found true three prior strike allegations.

The court sentenced Anderson to 115 years to life in prison: 25 years to life in prison for the murder, tripled to 75 years to life under the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); an additional 25 years for the firearm discharge enhancements (§ 12022.53, subds. (d), (e)(1)); and an additional five years, consecutive, for each of the three prior serious felony convictions (§ 667, subd. (a)(1)).

Underlying Events

Late in the morning of Easter Sunday, April 24, 2011, Smallwood and her friend McDaniel (who was then 18, about six years younger than Smallwood) left Smallwood's sister's house, in the Compton area of Los Angeles. Having just fought with her niece, Smallwood took with her a knife from her sister's kitchen, which she gave to McDaniel.

As Smallwood and McDaniel walked past a group of people standing outside a house, a man (later identified as Anderson) approached them, asking “How old is she”—referring to McDaniel—“smoking a cigarette?” Smallwood replied that “she's old enough,” and Anderson responded, “She looks like she's 12.” McDaniel, wielding the knife, stepped toward Anderson, saying “Blood, I'm BPS,” or “this is BPS.”² “I'm old enough,” or “You're going to be fucked up.”

Anderson then followed Smallwood and McDaniel as they walked on, and McDaniel turned and talked with Anderson, still holding the knife. Smallwood did not hear the exchange, but then heard Anderson say and repeat, apparently to someone standing nearby, “Cuz, get the burner.” To Smallwood, “Cuz” referred to the Crips gang; and “Get the burner” referred to a gun. McDaniel was still angry, but Smallwood pulled her away and they continued up the street. When Smallwood turned around after walking for a minute or more, Anderson was behind them. McDaniel turned around, spread her arms, palms up, and asked him, “What you going to do?” Anderson pulled a gun from his jacket, put his arm around McDaniel, and with the gun to her chest he fired the gun. McDaniel fell, and—according to Smallwood—Anderson then pointed the gun at her, but did not shoot. McDaniel died at the scene.

Discussion

I. Anderson Is Not Entitled to Have the Information Set Aside.

Anderson retained Attorney Victor Comstock to represent him, and was represented by Comstock at his September 1, 2011 preliminary hearing, at his September 15, 2011 arraignment (at which his not guilty pleas were entered), and at a pretrial conference on October 25, 2011. At the next pretrial conference, on November 23, 2011, Comstock withdrew as Anderson's attorney and was replaced by a member of the office of the alternate public defender. On July 1, 2011, however, some months before any of these proceedings, Comstock had been placed on inactive status by the State Bar, rendering him “Not eligible to practice law.”³

Anderson moved on February 14, 2012, to set aside the information on the ground he had been unrepresented by counsel at the September 1, 2011 preliminary hearing.⁴ The prosecution expressly conceded that Comstock “was not eligible to practice law” at the time of Anderson's preliminary hearing, but argued that Anderson nevertheless was not deprived of a substantial right that would render his commitment illegal. The motion was heard, argued (briefly), and denied by the trial court on March 13, 2011, on grounds not reflected in the transcript.⁵

On appeal, Anderson reiterates that Comstock was ineligible to practice law at Anderson's September 1, 2011 preliminary hearing, constituting a per se deprivation of his right to counsel at a critical stage of the proceeding. The People dispute this contention because the reason Comstock had been placed on inactive status was his failure to pay his State Bar dues rather than for anything that would demonstrate a lack of professional competence to represent Anderson.

An order denying a motion to set aside the information may be reviewed on appeal from the judgment of conviction. (People v. Pompa–Ortiz (1980) 27 Cal.3d 519 [165 Cal.Rptr. 851, 612 P.2d 941].) However, “failure to move to set aside the information [ (citing § 995) ] bars the defense from questioning on appeal any irregularity in the preliminary examination [ (citing § 996) ].” (People v. Harris (1967) 67 Cal.2d 866, 870 [64 Cal.Rptr. 313, 434 P.2d 609].)⁶

A. Anderson Was Deprived of His Right to Representation by Competent Counsel at His Preliminary Hearing and Arraignment.

The right of a criminal defendant to the effective assistance of counsel at all critical stages of the prosecution is a substantial right guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 15 of the California Constitution. The preliminary hearing is a critical stage of the prosecution, which is validly conducted only when the defendant is afforded the effective assistance of counsel. (Cal. Const., art. I, § 15 ; Coleman v. Alabama (1970) 399 U.S. 1, 9–10 [26 L.Ed.2d 387, 396–397, 90 S.Ct. 1999].) If a defendant is denied the effective assistance of counsel at the preliminary hearing, a substantial right has been denied. (People v. Coleman (1988) 46 Cal.3d 749, 772–773 [251 Cal.Rptr. 83, 759 P.2d 1260].)

A valid preliminary hearing is a prerequisite to the filing of an information. (§ 738.) Therefore, as the Supreme Court reaffirmed over 50 years ago, “where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right, the commitment is unlawful within the meaning of section 995, and [the information] must be set aside upon timely motion.” (People v. Elliot (1960) 54 Cal.2d 498, 503 [6 Cal.Rptr. 753, 354 P.2d 225] ; People v. Napthaly (1895) 105 Cal. 641, 644–645 .) “[W]here the accused is not legally committed within the meaning of section 995 of the Penal Code, the commitment is voidable.... It is the same as if no preliminary examination at all had been held.... In such event, of course, the information must be quashed.” (People v. Elliot,supra, 54 Cal.2d at p. 503, 6 Cal.Rptr. 753, 354 P.2d 225.)

Anderson was represented by Attorney Comstock at the September 1, 2011 preliminary hearing, and at his September 15, 2011 arraignment. However, on July 1, 2011, Comstock had been placed on inactive status by the State Bar, rendering him ineligible to practice law. Respondent contends that because Comstock's inactive status resulted from his failure to pay bar membership dues, the record reflects nothing indicating his professional incompetence; his ineligibility to practice law therefore did not deprive Anderson of his right to representation by competent counsel at the preliminary hearing and arraignment. Anderson contends, to the contrary, that the State Bar's determinations do in fact establish Comstock's professional incompetence, compelling the conclusion that Anderson was deprived of his right to representation by competent counsel.

The Supreme Court held in People v. Ngo (1996) 14 Cal.4th 30 [57 Cal.Rptr.2d 456, 924 P.2d 97], that “representation of a criminal defendant by an attorney who has been involuntarily enrolled [by the State Bar] on inactive status for MCLE noncompliance [or for any other reasons that do not necessarily establish professional incompetence or constitutionally deficient performance in representation] does not, in itself, amount to the denial of counsel.” (Id. at p. 38, 57 Cal.Rptr.2d 456, 924 P.2d 97.)⁷ “Although the right to counsel clearly entails a right to competent representation by a licensed attorney, and although MCLE requirements clearly do relate to professional competence ..., the inference is unwarranted that any and all noncompliance with those requirements necessarily establishes an attorney's professional incompetence...