Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge No. FSB702668, Affirmed with directions.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
Defendant Louis Crosby lost a fistfight with his younger (but much larger) brother. After drinking and brooding for about 18 hours, defendant went back to the apartment where his brother was staying and shot at him three times, killing him.
Defendant was found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with an enhancement for personally and intentionally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)), and sentenced to a total of 50 years to life in prison.
Defendant contends:
1. The trial court erred by excluding evidence of the victim’s “history of violence.” (Capitalization omitted.)
2. There was insufficient evidence of premeditation and deliberation to support the conviction for first degree murder.
3. There was insufficient evidence that the killing was murder rather than voluntary manslaughter.
4. Defendant’s trial counsel rendered ineffective assistance by failing to subpoena witnesses.
5. The trial court erred by denying defendant’s new counsel’s request for trial transcripts at public expense for use in connection with a new trial motion.
We find no error. Hence, we will affirm with directions to correct an error in the abstract of judgment (see part V, post).
Defendant has also filed a related petition for habeas corpus, which we will resolve by separate order.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
The victim, Avery Crosby, was staying with his girlfriend, Mary Myers, at her apartment in San Bernardino.
Several witnesses had the same last name, Myers. We will refer to all these witnesses by their first names.
On July 10, 2007, both the victim and defendant were at the apartment, drinking. They then left to go to Barstow, in defendant’s sports utility vehicle (SUV). Later that night, the victim phoned Mary and said defendant had “left him.” He was at a truck stop in Hesperia. Mary went and picked him up.
On July 11, 2007, around 5:00 a.m., Mary and the victim got back to the apartment. They found defendant outside in his SUV, asleep. The victim went over to the SUV. He was using “foul language.” He told defendant to roll down the window. When defendant did not, he kicked the door; he then pounded on the driver’s side window until it broke.
In his brief, defendant states that the victim broke the window with a brick. We have found no reference to a brick in the record.
Defendant got out of the SUV. He and the victim started fighting. Defendant was six feet one inch tall; the victim was six feet eight and a half inches tall. They were both yelling at each other, “[s]aying bad words....” The victim appeared to be winning; he kept knocking defendant down and then kicking him. Finally, Lamar Lindberg, another resident of the apartment, broke up the fight.
Defendant said he had no gas, so Lindberg drove him to a gas station to buy gas. Defendant was angry. He said, “[T]ell [the victim] that he better leave because I am coming back.”
When defendant got back and was gassing up his SUV, he told Mary, “On his mom and daddy, rest in peace, he was going to teach him. He thought he taught him, but he didn’t teach him well enough.” Mary “didn’t think nothing of it” because “people say things.” Defendant then left.
Mary told police that defendant also said that “this was the second time that Avery had whipped on hi[m].” At trial, however, she denied this, testifying, “He didn’t say anything to me about that.”
That night, around 11:15 p.m., defendant pulled into the driveway of the apartment. When he got out, he was holding a gun. “[H]e didn’t look like himself.” Witness Walter Myers testified that defendant seemed “possessed,” like “a zombie.”
Walter and others who were outside the apartment tried to stop defendant. Walter said, “Man, everything is over with. You and your brother, man, let is aside. Leave well enough alone.” Another witness said, “That’s your brother. Don’t do that.” Defendant did not respond.
Defendant entered the apartment. The victim, who had been sitting on a couch, stood up. Defendant pointed the gun at him and fired three shots.
Mary, who had been in her bedroom, came out. She found defendant standing over the victim with the gun. Defendant “look[ed]... like he wanted to shoot him again,” so she jumped in front of him. She heard him say, “I told you I was going to get you.” He then turned and walked out. He got into his SUV and left.
Witness Grady Myers told police that defendant said, “Didn’t I tell you to keep yo[ur] hands off of me?” At trial, however, Grady recanted this and virtually all of his other statements to the police.
Two shots hit the victim; one missed. One shot struck the victim in the right forehead and exited about two inches lower, through the left back of the head. The downward path of this bullet indicated that the victim was in a lower position than the gun — possibly seated — when he was hit. Lack of stippling indicated that this shot was fired from at least two feet away.
Another shot struck the victim in the left back, exited through his pelvis, then reentered his left thigh. The path of this bullet indicated that the victim was bending at the waist. Stippling was present, indicating that this shot was fired from less than two feet away.
After the police arrived, they took a number of witnesses back to the police station for interviews. While they were there, defendant phoned Grady. Grady put the call on speakerphone, then took the phone over to a police officer. The officer heard defendant say, “I told him if he touched me again I was going to kill him.” His voice was “matter of fact.” His speech was not slurred. Grady asked defendant, “You know he dead[,] right?” Defendant replied, “Fuck that nigger.”
Defendant was arrested in Los Angeles the next day.
B. Defense Evidence.
Defendant testified on his own behalf.
According to defendant, the victim came to California around 2003. Defendant tried to help him out, giving him a place to stay, trying to find him a job, and giving him money. The victim had been in prison “a couple of times”; defendant sent him money and gave him new clothes when he got out. Other witnesses agreed that defendant and the victim always seemed to get along well.
Defendant testified that, on July 10, 2007, the victim drove defendant’s SUV to Barstow, because defendant was too drunk to drive. He denied intentionally abandoning the victim. Rather, he woke up alone, with the keys in the ignition, and assumed he had pulled over to “sleep it off....” He did not remember being in Barstow or driving back to the apartment.
The next thing defendant knew, the victim was banging on the SUV door and breaking the window. When defendant opened the door, the victim pulled him out and slammed him to the ground. Defendant tried to “[w]restle” with him but was not very effectual because he was drunk and had glass in his eyes from the broken window.
After the fight, defendant bought some brandy, then went home. He sat there drinking and “thinking about this guy jumping on me.”
Later that night, defendant decided to go and talk to the victim and ask why he had attacked him: “I never seen him do this to me before. He’s never acted this way.” He took a gun with him so the victim would not “come at [him] again.” He knew that the victim always carried a gun. The victim had previously admitted to defendant that he had once shot at somebody. In addition, there was a “possibility” that some of the other people around the victim would have weapons. Defendant had purchased the gun from some “street runners” a couple of months earlier, for protection. He kept it in his SUV.
Defendant testified, “When I entered... he jumped up and he was coming towards me and next thing I know the gun just went off. I never intended for the gun to go off. I was scared.”
While defendant was in jail, in a taped phone call with his wife, he said “I didn’t mean it.” He added, “It’s scary. Nigger jumped up at me and, next thing I know I was going off.”
II
THE EXCLUSION OF EVIDENCE OF THE VIOLENT CHARACTER OF THE VICTIM AND OTHERS
Defendant contends that the trial court erred by excluding evidence of the victim’s “history of violence.” (Capitalization omitted.)
A. Additional Factual and Procedural Background.
During trial, both sides sought a ruling on the admissibility of evidence that (1) the victim was a gang member, (2) other people at the apartment were members of the same gang, (3) the victim frequently carried a gun, and (4) the victim once told defendant that he had come to California because “he was wanted for attempted murder for shooting at someone in Mississippi.” The prosecution objected based on Evidence Code section 352.
The trial court admitted evidence that the victim carried a gun. It also admitted evidence that the victim was a gang member. (Ultimately, however, defendant did not offer any evidence to this effect.)
Defendant claims the trial court excluded evidence that the victim was a gang member. Not so.
It also admitted evidence that the victim told defendant that he had once shot at somebody; however, it excluded evidence that he had come to California specifically to avoid prosecution for this.
Finally, it admitted evidence that Grady Myers, one of the people at the apartment, told defendant that he had shot someone. The prosecution even stipulated that Grady had a felony conviction for involuntary manslaughter. However, the trial court excluded evidence that other people at the house were gang members.
B. Analysis.
Because defendant was claiming self-defense, evidence of the violent character or reputation of the victim or others present was relevant. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1069; People v. Brophy (1954) 122 Cal.App.2d 638, 647-648.)
Defendant’s contention, however, is overblown. The trial court did not exclude evidence of the victim’s “penchant for violence....” It excluded only two items of evidence: (1) that the victim had come to California to avoid prosecution, and (2) that other people at the apartment were gang members. Thus, defendant was free to testify that the victim was a gang member, carried a gun, and had previously shot at someone. He did in fact testify that Grady had killed someone. Moreover, while he did not get in the fact that other people at the apartment were gang members, he managed to testify that he was afraid in part because “I know that the environment in which he was in, the people,... there’s several people that hang around there that... are into a group activity or what have you. I know there’s a possibility someone else have a weapon....”
Here, the additional probative value of the excluded evidence was slight. On the other hand, it was likely to appeal to the jury’s passion and prejudice — by painting the victim as not merely violent, but also a fugitive from justice, and by painting bystanders at the scene as gang members. “‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.] ‘Our review on this issue is deferential. A trial court’s decision whether to exclude evidence pursuant to Evidence Code section 352 is reviewed for abuse of discretion. [Citation.]’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 929-930.) We cannot say that the trial court abused its discretion in this case.
For much the same reasons, even assuming the trial court erred, defendant cannot show that the error was prejudicial. “Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson [(1956)] 46 Cal.2d [818,] 836. [Citation.]” (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Under this standard, there was no reasonable probability that, if the excluded evidence had been admitted, defendant would have enjoyed a more favorable result.
III
THE SUFFICIENCY OF THE EVIDENCE OF MALICE AND PREMEDITATION
Defendant contends that there was insufficient evidence of premeditation and deliberation to support his conviction for first degree murder. He also contends that there was insufficient evidence of malice and therefore insufficient evidence that the killing was murder rather than voluntary manslaughter.
A. Standard of Review.
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Burney (2009) 47 Cal.4th 203, 253.)
B. Premeditation and Deliberation.
“A murder that is premeditated and deliberate is murder of the first degree. [Citation.] ‘“In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’”’ [Citation.] ‘“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported — preexisting motive, planning activity, and manner of killing — but “[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.”’ [Citation.]” (People v. Burney, supra, 47 Cal.4th at p. 235.)
Here, there was ample evidence of motive: The victim had just beaten defendant in a somewhat unfair fight. (See People v. Manriquez (2005) 37 Cal.4th 547, 577 [prior verbal altercation with victim was evidence of motive].) Defendant had threatened the victim, saying “he better leave because I am coming back” and “[I am] going to teach him.” In his own testimony, he admitted spending much of the day “thinking about this guy jumping on me.” After the killing, as he stood over the victim’s body, he said, “I told you I was going to get you.” He also admitted threatening to kill the victim “if he touched me again....”
In addition, there was evidence of planning. Defendant armed himself with a loaded gun before going to the victim’s home and deliberately confronting him. (See People v. Romero (2008) 44 Cal.4th 386, 401 [fact that defendant brought gun to scene was evidence of planning].) Defendant argues that there is no evidence that he obtained the gun immediately before confronting the victim. He points to his own testimony that he had been carrying it around in his car, for self-protection, for months. He admitted, however, that he deliberately armed himself with it before he entered the apartment.
Defendant argues that “if [he] really planned to kill his brother and then flee to Los Angeles, it could not have been more poorly planned. He did, after all, shoot Avery in front of a bunch of witnesses.” Defendant, however, had been drinking, which could have affected his ability to plan well. In any event, the fact that he planned poorly did not require the jury to find that he did not plan at all.
Finally, the manner of the killing showed a preconceived design. Defendant got out of his car with the gun drawn. When he entered the apartment, he immediately pointed the gun at the victim. As we will discuss in more detail in part III.C.1, post, there was sufficient evidence that the victim did not provoke defendant. Defendant said, “Didn’t I tell you to keep yo[ur] hands off of me?” He then fired three shots, two of which hit the victim. The shot that hit the victim in the head was fired from more than two feet away, possibly while he was still seated; the shot that hit him in the back was fired from less than two feet away, while he was bent at the waist. This indicates that defendant first incapacitated the victim, then came closer and shot him in the back. (See People v. Vorise (1999) 72 Cal.App.4th 312, 319 [continuing to shoot victim at close range after he was already incapacitated was a manner of killing that showed deliberation and premeditation].)
C. Malice.
“‘“A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of... voluntary manslaughter. [Citation.]” [Citation.] Generally, the intent to unlawfully kill constitutes malice. [Citations.] “But a defendant who intentionally and unlawfully kills lacks malice... in limited, explicitly defined circumstances: either when the defendant acts in a ‘sudden quarrel or heat of passion’ [citation], or when the defendant kills in ‘unreasonable self-defense’ — the unreasonable but good faith belief in having to act in self-defense [citations].” [Citation.]’” (People v. Moye (2009) 47 Cal.4th 537, 549.)
1. “Heat of passion.”
“A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.]
“‘“To satisfy the objective or ‘reasonable person’ element of this form of voluntary manslaughter, the accused’s heat of passion must be due to ‘sufficient provocation.’” [Citation.]’ [Citation.] ‘[T]he factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]
“To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation. [Citation.] ‘Heat of passion arises when “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” [Citations.]’ [Citation.] ‘“However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter....” [Citation.]’ [Citation.]” (People v. Moye, supra, 47 Cal.4th at pp. 549-550.)
The jury could reasonably find that the fight earlier in the day was not legally sufficient provocation. Some 18 hours or so had passed since then. This was sufficient time for the passions of an ordinarily reasonable person to cool.
Moreover, the jury could reasonably find that the victim did nothing provocative immediately before defendant shot him. Defendant, of course, testified that the victim jumped up and came toward him; the jury, however, did not have to believe this. Once again, the physical evidence indicated that the victim was still seated when defendant first fired. Several eyewitnesses reported that the victim stood up, but not that he made any threatening gestures. One said that he tried to run.
Finally, based on the evidence of premeditation and deliberation, as discussed in part III.B, ante, the jury could reasonably find that defendant had already decided to shoot his brother before even entering the apartment. Thus, assuming the victim jumped up or even moved toward him, defendant did not act under a heat of passion induced by any such motion.
Defendant relies on cases holding, as he puts it, that “[p]rovocation can occur... over an extended period of time,” including People v. Bridgehouse (1956) 47 Cal.2d 406, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89. In Bridgehouse, for example, the defendant’s wife had been telling him for over a year about an affair she was having with another man. (Id. at pp. 407-408.) Here, by contrast, there was no ongoing or continuing provocation. Rather, defendant insisted on brooding over the earlier incident. And, for the reasons already discussed, the jury could reasonably find that there was no second incident constituting provocation.
Defendant argues that the victim had beaten him at least once before, citing his own statement to Mary that “this was the second time that Avery had whipped on hi[m].” Mary, however, denied that defendant made any such statement. Moreover, according to defendant’s own testimony, “I never seen [the victim] do this to me before. He’s never acted this way.” Thus, the jury was not required to believe that there had been any previous “whipp[ing].”
2. “Unreasonable self-defense.”
“[W]hen a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of ‘imperfect self-defense’ applies to reduce the killing from murder to voluntary manslaughter. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 664.)
Once again, based on the evidence of premeditation and deliberation (see part III.B, ante), the jury could reasonably find that defendant had already decided to shoot his brother before even entering the apartment. Moreover, based on the evidence that once defendant was inside the victim did nothing provocative (see part III.C.1, ante), the jury could reasonably find that defendant did not actually believe he was in danger.
IV
POSTTRIAL INEFFECTIVE ASSISTANCE CLAIMS
Defendant contends that his trial counsel rendered ineffective assistance by failing to subpoena certain witnesses.
In a related claim, he also contends that the trial court erred by denying his newly appointed counsel’s request for trial transcripts, which defendant supposedly needed to prove that his trial counsel had rendered ineffective assistance.
A. Additional Factual and Procedural Background.
Immediately after the jury returned its verdicts and was excused, defendant said he wanted “to go on the record....” He proceeded to raise several complaints about defense counsel’s performance, including that defense counsel had failed to timely subpoena defense witnesses.
Defendant stated: “I specifically asked [defense counsel] a couple weeks ago to send out subpoenas so that I can have some witnesses here, which he failed to do.... [Defense counsel] gave my wife a subpoena the day before the people were supposed to be here.... [¶] I explained to [defense counsel] the people worked and they needed time. There’s no way for somebody to come.”
The trial court responded, “[Y]our complaints as you wish to make them can be in a motion for new trial or via an appeal.”
On the date originally set for sentencing, defense counsel noted that defendant wanted new counsel appointed. Defendant proceeded to raise several new complaints about defense counsel’s performance; he also claimed again that defense counsel “didn’t subpoena the people in time....” This time, the trial court appointed new counsel to represent defendant in connection with a motion for new trial.
On the continued sentencing date, defendant’s new counsel indicated that he intended to file a motion for new trial. He requested a copy of the trial transcripts at public expense, asserting that defendant was indigent. This colloquy ensued:
“[THE COURT:] If there’s something specific that warrants it, justify it in writing and I would consider it.
“[NEW COUNSEL]: I will review the file, see if there’s anything.
“THE COURT: As I understand it, the defendant’s suggestions are that [trial counsel] didn’t call certain witnesses that he thinks he should have called. That does not bear upon the transcript other than the amount of evidence that might justify.”
New counsel then did in fact file a new trial motion. It argued that trial counsel had rendered ineffective assistance by failing to timely subpoena unspecified witnesses who “could confirm the victim’s past violent behavior.”
The prosecution filed a written opposition. It noted that defendant’s motion was not supported by any declarations. It asserted, however, that the unnamed potential witnesses were, in fact, defendant’s wife and three of his siblings. It suggested that defendant’s wife may have told defense counsel that they were willing to testify without a subpoena. It also noted that defendant had asserted the marital privilege to prevent the prosecution from calling his wife as a witness and had affirmatively chosen not to call her as a defense witness to prevent her from being excluded from the courtroom.
New counsel had apparently given the prosecution written statements by some or all of these witnesses, but the statements themselves are not in the appellate record.
Earlier, in arguing that defendant’s wife should not be excluded from the courtroom, defense counsel had represented that she was not going to testify: “I have had a discussion with Mr. Crosby, I think he understands that his wife has some things that... might help us. And she definitely has things that could hurt us. On balance, he agrees with me that we would make a decision not to call her and to object to the prosecution calling her. [¶] And that being the case, I believe she would be allowed to be in the courtroom.” Defendant confirmed that he had discussed the matter with defense counsel and that he did not want his wife to testify.
On the further continued sentencing date, new counsel announced: “[W]e are going to withdraw the motion for new trial. After discussing it with Mr. Crosby, we feel it would be necessary. [¶] In order to proceed effectively, we’d need to have the transcript. We were not afforded that opportunity.... We feel the most appropriate way to handle this is on the appellate level.” The trial court allowed defendant to withdraw the motion. It then proceeded to sentence defendant.
B. Defense Counsel’s Failure to Subpoena Witnesses.
“‘“‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness... under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” [Citations.]’ [Citation.]” (In re Hardy (2007) 41 Cal.4th 977, 1018-1019.)
“‘“Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.]”’” (People v. Salcido (2008) 44 Cal.4th 93, 170.)
“‘[E]xcept in those rare instances where there is no conceivable tactical purpose for counsel’s actions,’ claims of ineffective assistance of counsel generally must be raised in a petition for writ of habeas corpus based on matters outside the record on appeal. [Citations.]” (People v. Salcido, supra, 44 Cal.4th at p. 172.)
Here, there is no evidence as to why defense counsel did not call the witnesses defendant supposedly wanted him to call. He was not asked to explain this on the record, and he did not. This is not a case in which there could be no satisfactory explanation. For example, for all we know, the witnesses’ testimony would not, in fact, have been exculpatory. Alternatively, as the prosecution suggested below, defense counsel may have relied on representations by defendant’s wife (or even by defendant) that there was no need to subpoena these witnesses because they were available to testify voluntarily.
As the People note, defense counsel evidently made a tactical decision (in which defendant concurred) not to call defendant’s wife to testify. Defendant now calls this a “strawman argument,” claiming that he never complained about defense counsel’s failure to call his wife. We have no way of knowing if this is true, however, because defendant never named any of the witnesses that his counsel allegedly failed to call. Defendant’s wife may have been one of them. This — along with the fact that defense counsel had tactical reasons for not calling her — at least illustrates how defendant has not disproven the possibility of a satisfactory explanation.
C. Refusal to Supply Trial Transcripts at Public Expense.
“[A] trial court may properly deny a request for free transcripts for use in a motion for new trial... unless the indigent defendant first demonstrates that the transcript is necessary for effective representation by counsel. [Citation.] The court must decide each case on its own facts and circumstances in determining whether the defendant has made a sufficient showing of need. [Citations.]” (People v. Markley (2006) 138 Cal.App.4th 230, 241, fn. omitted.)
Here, the trial court did not definitively deny the request. It specifically offered to consider a written motion for transcripts. New counsel went ahead and filed a motion for new trial instead. Later, when he withdrew the motion for new trial, he complained about the unavailability of transcripts; nevertheless, he did not request a continuance, and he did not renew his request for transcripts. In sum, “[n]o ruling was made below. Accordingly, no review can be conducted here. ‘[T]he absence of an adverse ruling precludes any appellate challenge.’ [Citation.]” (People v. Rowland (1992) 4 Cal.4th 238, 259.)
Separately and alternatively, defendant never showed that transcripts were necessary for effective representation. New counsel never explained exactly why he felt he needed them. The key issues were (1) whether defense counsel had failed to call witnesses who could have given exculpatory testimony, and (2) if so, whether there was a sound strategic reason for that failure. As the trial court reasonably observed, new counsel did not need transcripts to investigate and, if necessary, to brief these issues. As it also recognized, transcripts might be relevant to whether the failure to call such witnesses was prejudicial. Defendant, however, never showed that they were necessary. The same judge who presided over the trial was also going to hear any new trial motion. Moreover, new counsel could get a general idea of what happened at trial by talking to trial counsel.
We therefore conclude that defendant has not shown that the trial court erred by refusing to provide him with transcripts at public expense.
V
DISPOSITION
The judgment is affirmed.
The People have pointed out a clerical error in the abstract of judgment: It indicates that the sentence on the firearm enhancement (Pen. Code, § 12022.53, subd. (d)) was 25 years, rather than 25 years to life. They have asked us to correct this error. Defendant has not opposed this request. Accordingly, the trial court is directed to prepare an amended abstract of judgment, correcting this error, and to forward certified copies of it to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: RAMIREZ P.J. McKINSTER J.
Admittedly, the court did say, “Gang membership causes me some concerns. This is not a gang case.” However, it said this when it was discussing evidence that other people at the apartment were gang members. It went on to say, “But... if he has knowledge of gang membership or any activities on the part of his brother, that’s fine.... [¶]... [¶] As far as specific knowledge of his brother and his brother’s activities, I would allow him to testify in that regard.” Finally, there was this exchange:
“[PROSECUTOR]: Just to be clear, the gang — Avery Crosby’s gang involvement is on the table for questioning?
“THE COURT: Yes.”
We speculate that defense counsel may have made a strategic decision not to introduce evidence that the victim was a gang member because it would have opened the door to evidence that defendant was a member of the same gang.
Alternatively, even if the jury did believe this, there was no evidence as to when the first “whipp[ing]” occurred. Defendant and his brother had evidently continued to have had a generally good relationship. Thus, the jury could still reasonably conclude that 18 hours was enough cooling time.