P. v. Haywood CA3

Filed 7/10/13 P. v. Haywood CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C071389

Plaintiff and Respondent, (Super. Ct. No. 12F00833)

v.

PHARAOH BUB HAYWOOD,

Defendant and Appellant.

This appeal is from defendant Pharaoh Bub Haywood’s second trial for being a felon in possession of a firearm and negligently discharging a firearm. His first trial ended in a mistrial on those charges but with convictions on charges of evading a peace officer, resisting a peace officer, and driving on a suspended license. On appeal, defendant raises five contentions of ineffective assistance of counsel and one of cumulative prejudice based on his ineffective assistance contentions. Disagreeing with these contentions, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On a rainy new year’s evening in 2011, a Sacramento police officer noticed a Chevrolet “muscle car” driving with its lights off. The officer turned on the overhead

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lights of his police car, but the Chevrolet sped away. After a few minutes, the Chevrolet spun out, and the driver, who was defendant, fled on foot, jumping over some residential fences. The officer, who had been chasing defendant, stopped and called for backup when he heard a gunshot. The backup officers found defendant a short time later in a nearby backyard. They could not find a firearm. Within a few hours of defendant’s arrest, a forensic police investigator took gunshot residue test samples from defendant’s hands. The samples were examined by forensic criminalist Jason Hooks under an electron scanning microscope. On the sample taken from defendant’s right palm, Hooks found four particles of gunshot residue. From that finding, it was Hooks’s opinion defendant fired a weapon, handled a weapon, or was in the vicinity of a fired weapon. Eight days later, a gun was found in a backyard approximately 44 feet from where defendant was arrested. DISCUSSION Defendant contends his counsel was ineffective in the following five instances: (1) failure to request exclusion of the gunshot residue testimony because it was unreliable; (2) failure to call an expert to challenge the scientific value of Hooks’s gunshot residue testimony; (3) failure to adequately cross-examine Hooks; (4) failure to challenge Hooks’s “lack of scientific expertise and objectivity”; and (5) failure to introduce (instead of successfully excluding from evidence) defendant’s misdemeanor convictions from his first trial and the fact that marijuana was found near defendant when he was arrested. Defendant concludes his contentions with an argument that these five instances of counsel’s deficient performance were cumulatively prejudicial. As we explain, we disagree on all points. I Failure To Seek Exclusion Of Gunshot Residue Testimony Based On Unreliability Defendant contends defense counsel was ineffective because he failed to ask the court to exclude Hooks’s gunshot residue testimony as unreliable based on People v.