People v. McGee11/15/2004
This is the second appeal by appellant and defendant Brian M. McGee from his jury trial conviction of one count of murder and one count of attempted murder. In his first appeal, People v. McGee (2002) 104 Cal.App.4th 559 (McGee I ), we reversed and remanded for the trial court to conduct a new hearing on the prosecutor's exercise of peremptory challenges under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler ) and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson ). On this second appeal, McGee challenges the trial court's denial of his Wheeler motions on remand. After reviewing the record on remand, we conclude the claim of Wheeler error lacks merit. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In McGee I, supra, 104 Cal.App.4th at pp. 563-565, we set forth the following summary of relevant facts: The December 3, 1998 Shootings
"McGee (sometimes known as Geeter) lived in an apartment in the Nickerson Gardens housing project in Los Angeles with Linda Williams and Jonathan Bowen. Williams was dating Lee Anthony Lewis, who lived nearby with his mother.
"On the evening of December 3, 1998, Lewis went to the apartment to see Williams. McGee answered the door, told Lewis to go away and closed the door. Lewis did not leave and instead tried to get Williams's attention by shouting at her window. McGee and two friends, Charlie Mack and Larry Hamilton, then came out of the apartment and attacked Lewis for 'disrespecting' them. During the assault, Mack hit Lewis in the mouth with a handgun. McGee threatened Lewis not go to the police 'or he would kill him.'
"Williams heard the commotion and went outside to see Lewis. McGee and Mack forced her back into the apartment. Mack pointed the gun at her and said ' "If you or your boyfriend go and tell the police, or call the police, we're going to kill you." ' McGee repeated the threat to Williams, who ran out of the apartment in search of Lewis.
"Williams found Lewis down the street talking to the police. After Lewis reported the incident, the police escorted Lewis and Williams back to the apartment, where Lewis identified Mack and Hamilton as two of the attackers. Mack and Hamilton were placed under arrest.
"The police then accompanied Williams and Lewis to Lewis's house. Williams noticed McGee's uncle, George Adams, watching from a nearby corner. After the police departed, Adams knocked on the door. When Lewis answered, Adams said, ' "Lee Anthony, man, you should have just left it alone" ' and ' "should have taken it like a man." '
"Seconds after Adams left, McGee burst into the Lewis residence and began shooting. After the shooting stopped, Williams told Lewis's mother, ' "Geeter shot us, Geeter shot us." ' When the police arrived, both Williams and Lewis told the officers they had been shot by McGee.
"Lewis died of multiple gunshot wounds to the chest and buttocks. Although she had been shot seven times, Williams survived and testified at trial.
"2. The Charges Against McGee
*2 McGee was charged with one count of murder (Pen.Code, § 187), one count of attempted premeditated murder (Pen.Code, §§ 664, 187) and one count of making terrorist threats (Pen.Code, § 422). The information specially alleged Lewis had been intentionally killed because he was a witness to a crime (Pen.Code, § 190.2, subd. (a)(10)). It also alleged that McGee personally used and discharged a handgun (Pen.Code, §§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (c)), which caused great bodily injury and death (Pen.Code, § 12022.53, subd (d)). The information further alleged McGee had personally inflicted great bodily injury on Williams in the commission of the attempted murder alleged in count 2 (Pen.Code, § 12022.7, subd. (a)). Finally, the information alleged all crimes
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