Filed 5/19/14 P. v. Payne CA3
Opinion following order vacating prior opinion
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C062753

         v.                                                                     (Super. Ct. No. SF103260A)

BRIAN DAVID PAYNE,

                   Defendant and Appellant.




         A jury convicted defendant Brian David Payne of first degree murder, shooting at
an occupied motor vehicle, criminal threats, misdemeanor vandalism, and inflicting
corporal injury on a spouse. The trial court sentenced defendant to 25 years to life in
prison, with an additional term of 25 years to life for a firearms-use enhancement, and
various concurrent terms.
         Among other things, issues arose during trial regarding defendant’s competence to
assist counsel in a rational manner and his requests to relieve his appointed trial counsel.


                                                             1
       Defendant now contends:
       1. The trial court erroneously instructed the jury on the requisite mental state for
heat of passion, and the prosecutor committed misconduct by misstating the law on heat
of passion. If either of those arguments are deemed forfeited, defendant claims defense
counsel rendered ineffective assistance by failing to object at trial to those errors.
       2. The trial court abused its discretion by not providing a clarifying instruction on
provocation sufficient to reduce first degree murder to second degree murder, after the
jury foreperson indicated that a holdout juror did not understand the concept.
       3. Defense counsel was ineffective in failing to prevent disclosure at the
competency trial of privileged information, the trial court abused its discretion in
considering inadmissible hearsay, and the cumulative effect of the errors requires reversal
of the competency determination and the sanity verdict.
       4. The trial court prejudicially erred in denying his motions to discharge his trial
counsel.
       We conclude:
       1. The jury was properly instructed on heat of passion, and defendant forfeited his
claim of prosecutorial misconduct. Defendant’s ineffective assistance claim fails because
he has not established prejudice.
       2. Defendant forfeited his claim that the trial court should have provided a
clarifying instruction on provocation, because he acquiesced to the trial court’s response
to the jury inquiry.
       3. The record does not support defendant’s claim of attorney-client privilege, and
defendant’s ultimate claim of ineffective assistance fails because he has not established
prejudice.
       4. The trial court acted within its discretion in denying defendant’s motions to
substitute his appointed trial counsel.
       We will affirm the judgment.

                                               2
                                    BACKGROUND
       Defendant was married to the victim, Jamie Baker, and the couple had three
children: Brian, Jr., Markus, and Aiden. But the relationship between defendant and his
wife began to deteriorate beginning in August 2006. Defendant suspected Jamie was
having an affair. He heard a message from a man on Jamie’s cell phone, and defendant
claimed Jamie showed him responses she received from other men on a dating website
she had visited, causing defendant to become angry and jealous. Defendant accused
Jamie of cheating on him and kicked her in the back when she refused to have sex with
him on one occasion in December 2006.
       Defendant told his coworker he would kill Jamie if she ever left him. He said he
put a gun on Jamie to scare her. Jamie’s friend, Hillary Hays, overheard defendant
threaten to kill Jamie during a cell phone conversation in November 2006. Defendant
said he did not want Jamie to be with anyone else.
       Defendant read subsequent texts on Jamie’s cell phone and learned that three men
had contacted her. One text sent from Jamie’s cell phone read, “I can’t wait to rub on
your rock-hard chest again.” The texts on Jamie’s cell phone confirmed defendant’s
suspicion that Jamie was unfaithful. Defendant felt his marriage was a joke and Jamie
was using him, but he still wanted to work things out. In a fit of rage, defendant slashed
Jamie’s car tires and choked her on January 10, 2007. Jamie summoned the police,
moved out of the apartment she shared with defendant, and went to live with Hays.
       Jamie reported to police that defendant constantly harassed her after she moved in
with Hays. He called Hays’s home about 20 times inquiring about Jamie and showed up
at Hays’s apartment. He said he would kill Jamie before he allowed her to be with
someone else. On one occasion, he took the ignition wire out of Jamie’s car to prevent
her from leaving.
       Jamie obtained an emergency protective order against defendant. She planned to
take the children to Texas, but defendant convinced her to stop along the freeway so that

                                             3
he could say goodbye to the children. However, defendant took Aiden out of Jamie’s car
and left, saying Jamie would never see Aiden again and that he would kill Jamie. Jamie
called the authorities.
       Defendant left Aiden with Jamie’s mother the next day, and Jamie took the
children to Texas. Jamie would not allow the children to tell defendant where they were,
but she permitted defendant to talk to Brian, Jr. and Markus on the telephone. Jamie told
Hays she wanted to get as far away from defendant as she could get.
       After Jamie left with the children, defendant smoked cocaine constantly. He
stopped going to work. He smoked between 7 to 10.5 grams of cocaine each day for
seven days. The cocaine made defendant depressed. He was not sleeping and eating. He
began to hear Markus’s voice calling him. He believed Jamie or her boyfriend might kill
him or set him up, so he kept his handgun by his bed for protection. At some point in
time, defendant wrote a note which said, “The enemy is Jamie Baker, bitch, mother
fucker.”
       Defendant killed Jamie on January 28, 2007. That morning, he met Jamie at a
Panda Express restaurant near his apartment. Jamie asked to meet to discuss things with
defendant. She wanted to meet at a public place because she was afraid of defendant.
Jamie left the children with defendant’s sister in Texas.
       Defendant stopped smoking cocaine about two hours before he had to meet Jamie.
He did not trust himself that day.
       Defendant wanted to save his marriage and to go to counseling. Jamie was
adamant, however, that their relationship was over. She told defendant the children were
at his sister’s house in Dallas. Defendant told Jamie the children belonged with him, and
Jamie responded that she would think about it. Defendant felt Jamie held all the cards.
He and Jamie left the restaurant at 12:45 p.m.
       Defendant returned to his apartment and smoked cocaine. He felt low. He
thought “it’s pretty much over. Your wife’s gone. You don’t know where your kids are.

                                             4
You got $300 left in the bank. Go draw 200 out, get on the freeway, turn your music on,
and go get another quarter [of cocaine].”
       After using an ATM machine, defendant departed from a parking lot in his car.
His gun was on the front seat of the car, and he knew the gun was loaded. Defendant saw
Jamie’s car make a turn at an intersection. She did not see him. Defendant pulled his car
next to Jamie’s car and got out of his car with his gun. He held his gun low. He wanted
answers from Jamie about his children, and he wanted to scare Jamie.
       Defendant repeatedly ordered Jamie to unlock her car doors. She said no and
began to move her car backwards. Defendant hit his gun on the car window, and the gun
discharged. After that, he pointed the gun at Jamie and fired 15 shots. Defendant was a
good shot, and he knew the gun was empty when he finished shooting. Twelve out of 15
bullets hit Jamie, killing her.
       Defendant left in his car and went straight to his drug dealer’s house. He did not
call 911. Instead, he called Jamie’s mother and others, confessing what he had done and
claiming he was going to kill himself.
       Defendant drove to Walnut Grove to get high. He turned off his cell phone. He
took off his white shirt to avoid detection. He sat in a field thick with brush and smoked
cocaine. Law enforcement officers eventually found defendant in the field and took him
into custody. Defendant told detectives Jamie cheated on him and “she just kept doing
it,” “[j]ust kept going on and on, lying and lying. She wouldn’t stop. Said she was afraid
of [defendant], but still kept doing it.” He said Jamie wanted to leave and he agreed but
he wanted her to leave the children with him and she took the children to hurt defendant.
He said Jamie told him at the Panda Express restaurant that she hated him and was “doing
all this stuff on purpose.” Defendant said he shot Jamie because he was angry about all
of the things she did to him and because she did not give a damn.
       Additional background information is included in the discussion portion of this
opinion where relevant to the contentions on appeal.

                                             5
       The jury convicted defendant of first degree murder (Pen. Code, § 187 --
count 1),1 shooting at an occupied motor vehicle (§ 246 -- count 2), criminal threats
(§ 422 -- count 3), misdemeanor vandalism (§ 594, subd. (a) -- count 4) and inflicting
corporal injury on a spouse (§ 273.5, subd. (a) -- count 5). The jury also found that in the
commission of the offenses charged in counts 1 and 2, defendant intentionally and
personally discharged a firearm causing great bodily injury to Jamie (§ 12022.53,
subd. (d)).
       The trial court sentenced defendant to a prison term of 25 years to life on count 1,
with an additional term of 25 years to life pursuant to the firearms-use enhancement
(§ 12022.53, subd. (d)), a concurrent three-year term on count 3, a concurrent one-year
term on count 4, and a concurrent four-year term on count 5. The trial court imposed and
stayed a prison term for the conviction on count 2.
                                       DISCUSSION
                                              I
       Defendant contends (A) the trial court erroneously instructed the jury on the
requisite mental state for heat of passion, (B) the prosecutor committed misconduct by
misstating the law on heat of passion, and (C) if either of those arguments are deemed
forfeited, defendant claims defense counsel rendered ineffective assistance by failing to
object at trial to those errors.
                                             A
       We begin with defendant’s argument that the trial court erroneously instructed the
jury on the requisite mental state for heat of passion. Defendant admitted killing Jamie,
but claimed he acted out of a heat of passion. He asked the trial court to instruct the jury
on voluntary manslaughter based on heat of passion pursuant to CALCRIM No. 570.




1 Undesignated statutory references are to the Penal Code.


                                              6
       The trial court instructed the jury pursuant to former CALCRIM No. 570, which at
the time included the following sentence: “In deciding whether the provocation was
sufficient, consider whether a person of average disposition would have been provoked
and how such a person would react in the same situation knowing the same facts.”2
Defendant argues that sentence misstated the law. He says the trial court’s instruction
erroneously allowed the jury to base its decision on whether the provocation would have
caused an average person to do what defendant did, i.e., commit a homicide.
       Defendant’s contention lacks merit. The California Supreme Court has approved
the challenged language. (People v. Beltran (2013) 56 Cal.4th 935, 954 (Beltran).)
“Heat of passion is a mental state that precludes the formation of malice and reduces an
unlawful killing from murder to manslaughter. Heat of passion arises if, ‘ “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.” ’ [Citation.]” (Id. at p. 942, fn. omitted; see also § 192, subd. (a).) Whether
the provocation suffices to constitute heat of passion focuses on the defendant’s state of
mind, not his particular act. (Beltran, supra, 56 Cal.4th at p. 949.) “[P]rovocation is not
evaluated by whether the average person would act in a certain way: to kill. Instead, the
question is whether the average person would react in a certain way: with his reason and
judgment obscured.” (Ibid., italics omitted.)




2 CALCRIM No. 570 was amended after defendant’s trial. The amended instruction
replaced the sentence “[i]n deciding whether the provocation was sufficient, consider
whether a person of average disposition would have been provoked and how such a
person would react in the same situation knowing the same facts” with the following: “In
deciding whether the provocation was sufficient, consider whether a person of average
disposition, in the same situation and knowing the same facts, would have reacted from
passion rather than from judgment.” (CALCRIM No. 570 (December 2008 supp.).)

                                             7
       The California Supreme Court examined the former version of CALCRIM
No. 570 challenged here and held the instruction was not ambiguous and did not
improperly allow jurors to consider whether the provocation would cause an average
person to do what the defendant did. (Beltran, supra, 56 Cal.4th at p. 954.) Instead, the
instruction properly drew the jury’s attention to the effect the provocation would have on
the state of mind of an ordinarily reasonable person. (Ibid.) Following Beltran, we reject
defendant’s claim of instructional error.
       Accordingly, it is not necessary for us to discuss defendant’s due process, Sixth
Amendment, Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], and
prejudicial error claims because we conclude the CALCRIM No. 570 instruction given to
the jury was not erroneous.
                                             B
       Defendant next claims the prosecutor committed misconduct by misstating the law
on heat of passion. The prosecutor argued: “You must decide whether the defendant was
provoked and whether the provocation was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average disposition would have
been provoked and how such a person would act. [¶] That means, would a reasonable
person have put 14 holes in his wife? No, not if they have that history of abuse. But a
murderer would.”3
       We agree the prosecutor misstated the law when he suggested that in deciding
whether the provocation was sufficient, the jury should consider whether a person of
average disposition would have put 14 holes in his wife. (Beltran, supra, 56 Cal.4th at
pp. 949, 954.) However, defendant forfeited his claim of prosecutorial misconduct by
failing to object at trial and failing to request a jury admonition. (People v. Samayoa



3Defendant fired 15 shots. Twelve bullets hit Jamie. Two of the bullets left in-and-out
wounds, resulting in 14 holes.

                                             8
(1997) 15 Cal.4th 795, 841.) Defendant does not contend that an objection or a request
for admonition would have been futile. (People v. Najera (2006) 138 Cal.App.4th 212,
224 [a defendant is excused from objecting and requesting an admonition if either would
have been futile].)
                                               C
       Anticipating that his claim may be forfeited, defendant asserts ineffective
assistance of counsel based on his trial counsel’s failure to object to the prosecutor’s
statement about the requisite mental state for finding heat of passion.
       A defendant claiming ineffective assistance of counsel must affirmatively
establish each element of a dual-pronged test: (1) counsel’s representation was deficient
in that it fell below an objective standard of reasonableness under prevailing professional
norms; and (2) the deficient representation prejudiced defendant. (People v. Maury
(2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687
[80 L.Ed.2d 674, 693] (Strickland).) If a defendant fails to establish either prong, the
judgment must be upheld. (Strickland, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 693].)
We “ ‘need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed.’ ” (In re Cox (2003) 30 Cal.4th 974, 1019-1020;
Strickland, supra, at p. 697 [80 L.Ed.2d at p. 699].)
       With regard to the second prong, defendant must affirmatively demonstrate a
reasonable probability that, but for counsel’s unprofessional errors, the defendant would
have obtained a more favorable result. (Maury, supra, 30 Cal.4th at p. 389; People v.
Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland, supra, 466 U.S. at pp. 693-694 [80
L.Ed.2d at pp. 697-698].) A reasonable probability is a probability sufficient to
undermine confidence in the conviction. (Maury, supra, 30 Cal.4th at p. 389.) It is not



                                               9
enough for defendant to show that errors had some conceivable effect on the outcome of
the case. (People v. Ledesma, supra, 43 Cal.3d at p. 217.)
       Defendant fails to establish prejudice because it is not reasonably probable that the
jury disregarded the trial court’s instructions and instead applied the prosecutor’s
argument concerning heat of passion. The jury asked the trial court for clarification
concerning the CALCRIM No. 570 instruction. In particular, the jury asked: “If we all
agree a person of average disposition would ‘not’ have acted in the same manner does
that mean this crime is not heat of passion.” The trial court responded by referring the
jury back to the elements stated in the CALCRIM No. 570 instruction. As we explained,
ante, the CALCRIM No. 570 instruction correctly stated the law on the requisite state of
mind for heat of passion. (People v. Beltran, supra, 56 Cal.4th at pp. 954-956 [finding no
prejudice arising from any ambiguity created by counsel’s closing statements where the
jury requested clarification of the standard from the trial court and the trial court correctly
explained the requisite mental state].) The trial court also directed the jury to follow the
law as the trial court explained it. Absent contrary indication, we presume the jury
followed those instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
       Moreover, compelling evidence supports the finding that defendant intended to
kill Jamie or deliberately acted with conscious disregard for Jamie’s life and the killing
was done willfully, deliberately and with premeditation. Defendant threatened to kill
Jamie on multiple occasions before he shot her. He also admitted that he had thought
about killing Jamie. He candidly testified that he did not trust himself on the day of the
shooting. Defendant’s belongings were packed in a suitcase and a gun holster was left on
top of the suitcase on the day of the shooting, suggesting preparatory action by defendant.
       Even if Jamie’s conduct provoked anger or jealousy in defendant, defendant had
sufficient time to cool off. (People v. Hach (2009) 176 Cal.App.4th 1450, 1458 [“ ‘ “the
rule is that, if sufficient time has ela[p]sed for the passions of an ordinarily reasonable
person to cool, the killing is murder, not manslaughter.” [Citation.]’ ”].) Jamie left with

                                              10
the children nine days before the shooting. Defendant claimed he wanted answers from
Jamie about the children, but defendant spoke with his children during the time they were
with Jamie, and Jamie told defendant where the children were. In addition, about 50
minutes elapsed between the time defendant’s meeting with Jamie ended and the time of
the shooting. (People v. Dixon (1961) 192 Cal.App.2d 88, 90-91 [the defendant did not
act in the heat of passion where 30 to 40 minutes elapsed from the time of the dispute
between the defendant and the victim to the time of the killing].) Defendant returned to
his apartment and later followed Jamie with his gun. He parked his car near Jamie’s car
and held his gun low, hiding it from Jamie’s view. He pointed the gun at Jamie and shot
at her 15 times, carrying out his prior threats to kill her. Defendant also had the presence
of mind to immediately flee after he shot Jamie and to take measures to avoid detection
by the police. Defendant’s actions and the lapse of time between his meeting with Jamie
and the shooting demonstrate that defendant acted with intent to kill or a conscious
disregard for life and with deliberation and premeditation, rather than from a heat of
passion.
       Unlike People v. Berry (1976) 18 Cal.3d 509 (Berry), a case defendant analogizes
to his, there is evidence contradicting defendant’s claim of provocation. Although
defendant said Jamie continued to have sex with him after she moved out of their
apartment, Hays’s testimony and Jamie’s conduct indicate Jamie was afraid of defendant
and wanted nothing to do with him. Hays said Jamie returned to the couple’s apartment
to take care of their son when defendant was at work, but Jamie lived with Hays until
Jamie left for Texas. Jamie told police she was afraid of defendant. Jamie said she
wanted to get as far away from defendant as she could. And on the day of the shooting
she refused to continue her relationship with defendant. The jury was not required to
accept defendant’s claim that Jamie created a “push-pull relationship” which provoked
him to act rashly from passion on the day of the shooting.



                                             11
         On this record, it is not reasonably probable that defendant suffered prejudice from
defense counsel’s failure to object to the prosecutor’s misstatement. We reject
defendant’s ineffective assistance claim.
                                               II
         Defendant also argues the trial court abused its discretion by not providing a
clarifying instruction on provocation sufficient to reduce first degree murder to second
degree murder, after the jury foreperson indicated that a holdout juror did not understand
the concept. Defendant claims the error violated his rights to due process and to a jury
trial.
         Defendant’s contention fails because he agreed with the trial court’s response to
the jury inquiries. Defense counsel did not request any additional jury instruction.
Defendant’s acquiescence in the trial court’s response to the jury’s questions forfeits a
claim of error on appeal as to that response. (People v. Harris (2008) 43 Cal.4th 1269,
1317-1318; People v. Rogers (2006) 39 Cal.4th 826, 877; People v. Marks (2003) 31
Cal.4th 197, 237.)
         In any event, there is no merit in defendant’s contention that the trial court was
obligated to further instruct the jury on provocation. Section 1138 requires a trial court to
provide a deliberating jury with information the jury desires on points of law. (People v.
Hodges (2013) 213 Cal.App.4th 531, 539.) We review a trial court’s decision on whether
to instruct a deliberating jury under the deferential abuse of discretion standard. (People
v. Waidla (2000) 22 Cal.4th 690, 745-746; People v. Hodges, supra, 213 Cal.App.4th at
p. 539.) Here, however, the record does not support defendant’s claim that the jury
requested clarification about provocation as it relates to the degrees of murder. After
deliberating for three days, the jury unanimously agreed that defendant committed
murder, but the jurors could not agree on the degree of murder. There was one holdout
juror. The jury foreperson requested further assistance from the trial court with regard to
the holdout juror’s apparent bias against the prosecution and illogical consideration of the

                                               12
evidence. But the jury did not request further instruction concerning provocation or heat
of passion after the trial court reinstructed with CALCRIM No. 570. The trial court
waited for the jury to provide further guidance about what assistance it needed from the
trial court, following hearings on possible juror bias and misconduct. The jury, however,
did not request additional instruction. We find no error in the trial court’s analysis of the
jury’s notes and of the statements by the jurors who were questioned. (People v. Haskett
(1990) 52 Cal.3d 210, 232 [deferring to the trial court because it is in a better position
than the appellate court to interpret the tone and nuances of problems in the jury room].)
       We also cannot agree with defendant’s contention that the record shows the jury
misunderstood the standard for finding provocation for purposes of considering whether
defendant committed first or second degree murder. Read in context, the jury’s notes and
the jury foreperson’s statements indicated a concern about the holdout juror’s bias against
the prosecution and her consideration of the evidence, not her understanding of the law
concerning provocation or heat of passion. In other words, the majority of the jury was
concerned the holdout juror was incorrectly applying the law, not that the holdout juror
(or conversely the rest of the jurors) misunderstood the law. The trial court did not abuse
its discretion in not providing further instruction on provocation.
       Defendant also claims his counsel’s failure to request a clarifying instruction on
provocation constituted ineffective assistance. We reject the claim because there was a
reasonable tactical reason for defense counsel’s omission. (People v. Mattson (1990) 50
Cal.3d 826, 876.) The jury could not agree on a verdict on the murder count. Defense
counsel may have decided not to object or request further instruction because counsel
wanted a mistrial on that count.
                                             III
       Defendant claims (A) defense counsel was ineffective in failing to prevent
disclosure of privileged information at the competency trial, (B) the trial court abused its



                                             13
discretion in considering inadmissible hearsay, and (C) the cumulative effect of the errors
requires reversal of the competency determination and the sanity verdict.4
       Before addressing defendant’s contentions, we provide additional background
information. Defendant entered pleas of not guilty and not guilty by reason of insanity
and during his arraignment requested the appointment of “a doctor on the issue of
insanity.” The trial court appointed Dr. Christina Antoine to evaluate defendant on the
issue of his sanity at the time of the shooting. The trial court later appointed a second
doctor, Dr. Gary Cavanaugh, pursuant to section 1027, at defendant’s request.5 This was
the second evaluation of defendant by Dr. Antoine and Dr. Cavanaugh, as they had
previously evaluated defendant’s competence to stand trial pursuant to section 1368.6
       Defendant subsequently moved to exclude Dr. Antoine and Dr. Cavanaugh’s
testimony at trial on the ground that any information the doctors obtained through their
section 1368 competency appointments was inadmissible. The trial court ruled that



4 Defendant also claims the errors resulted in a denial of due process, but we do not
consider that claim because he failed to provide supporting argument. (People v. Jones
(1998) 17 Cal.4th 279, 304.)
5 Section 1027 provides that when a defendant pleads not guilty by reason of insanity the
trial court shall select and appoint at least two but no more than three psychiatrists or
licensed psychologists, who have a doctoral degree in psychology and at least five years
of postgraduate experience in the diagnosis and treatment of emotional and mental
disorders, to examine the defendant and investigate his or her mental status. (§ 1027,
subd. (a).) Any psychiatrist or psychologist appointed by the court may be called by
either party to the action or by the court, and shall be subject to all legal objections as to
competency and bias and as to qualifications as an expert. (§ 1027, subd. (e).)
6 Section 1368 describes the procedure for a determination whether a defendant is
competent to stand trial where the judge doubts the defendant’s mental competence
during the pendency of an action and prior to judgment. If counsel informs the court that
he or she believes the defendant is or may be mentally incompetent, the court must order
that the question of the defendant’s mental competence be determined in a hearing held
pursuant to sections 1368.1 and 1369. (§ 1368, subd. (b).)

                                              14
Dr. Antoine and Dr. Cavanaugh could not evaluate defendant on the issue of sanity
because the doctors had previously evaluated defendant’s competence to stand trial. The
trial court declared a mistrial as to the sanity phase of the trial, ordered that the sanity
phase be tried before a new jury, and appointed Dr. Rogerson and Dr. Hamon to evaluate
defendant on the issue of sanity under section 1026.
       Before the sanity phase commenced, however, defendant had an outburst in the
courtroom, accusing the trial judge, district attorney, and his defense counsel of
conspiring against him, and asserting that a local developer bribed the trial judge and was
manipulating the trial. The trial court suspended the proceedings to determine whether
defendant was competent to assist his counsel in a rational manner. Defense counsel
requested a competency trial. The trial court appointed Dr. Robert Hart, Dr. John
Chellsen, and Dr. Wendy Weiss to evaluate defendant’s competency. Dr. Hart opined
defendant was competent in that he could rationally assist his counsel during trial. But
Dr. Chellsen and Dr. Weiss concluded that although defendant understood the nature of
the criminal proceedings against him, he was not competent to assist his trial counsel in a
rational manner.
       The trial court conducted a competency trial. Among other evidence, the trial
court admitted evidence regarding the second evaluation of defendant by Dr. Antoine and
Dr. Cavanaugh. Following the competency trial, the trial court found defendant
competent to assist his counsel, concluding that defendant was malingering. The trial
court noted that during the guilt phase trial lasting several weeks, defendant never
exhibited delusions concerning the local developer, but spoke about the developer when
the trial court was setting the sanity issue for trial. The trial court found the timing of
defendant’s outburst “quite convenient.” It determined defendant could control his
behavior and was feigning delusions.
       The trial court’s decision was based on Dr. Hart’s report and testimony and the
trial court’s observation of the defendant during the competency hearing and all prior

                                               15
proceedings. But the trial court also relied on Dr. Antoine’s testimony and the fact that
defendant told a fellow inmate that he had a plan to plead insanity. The trial court was
not persuaded by the testimony and reports from Dr. Weiss and Dr. Chellsen, saying that
Dr. Weiss’s testimony was inconsistent and unpersuasive, and Dr. Chellsen’s diagnosis of
schizophrenia was unsupported by defendant’s mental health history and conduct and the
opinions of the other doctors.
                                             A
       With that background in mind, we turn to defendant’s claim that his trial counsel
was ineffective in failing to prevent the admission, at the competency trial, of evidence
relating to the second evaluation of defendant by Dr. Antoine and Dr. Cavanaugh.
Defendant asserts the information obtained from those evaluations was protected from
disclosure under the attorney-client privilege because the trial court appointed
Dr. Antoine and Dr. Cavanaugh to evaluate defendant pursuant to Evidence Code
section 1017.7 Defendant maintains he did not personally enter a plea of not guilty by
reason of insanity during the arraignment; hence Dr. Antoine and Dr. Cavanaugh were
not appointed to examine him pursuant to section 1027.
       Contrary to defendant’s assertion, the record shows that defendant entered a plea
of not guilty by reason of insanity at his arraignment, and he confirmed that plea at
subsequent hearings and motions. Dr. Antoine and Dr. Cavanaugh were appointed in
August 2007 to evaluate defendant’s sanity pursuant to section 1027. Information gained
from those evaluations was not protected by the attorney-client privilege. (People v.


7 Confidential communications between a patient and a psychotherapist are privileged.
(Evid. Code, § 1014.) The privilege exists where the psychotherapist is appointed by
order of the court, upon the request of defense counsel, in order to assist counsel in
advising defendant on whether to enter or withdraw a plea based on insanity. (Id. at
§ 1017, subd. (a).) Communications made as a result of an Evidence Code section 1017
appointment are protected by the attorney-client privilege. (People v. Lines (1975) 13
Cal.3d 500, 515.)

                                            16
Lines, supra, 13 Cal.3d at p. 515.) Defendant has not established that defense counsel
was deficient.
       In addition, defendant has not shown prejudice. Even without the challenged
evidence, there was substantial evidence supporting the trial court’s determination that
defendant was competent to stand trial.
       A person who is mentally incompetent cannot be tried. (§ 1367, subd. (a);
People v. Ary (2011) 51 Cal.4th 510, 517 [the trial of a defendant who is mentally
incompetent violates the due process clause of the federal Constitution].) A defendant is
incompetent to stand trial if, as a result of mental disorder or developmental disability,
the defendant is unable to understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner. (§ 1367, subd. (a); People v.
Young (2005) 34 Cal.4th 1149, 1216.) A defendant is presumed mentally competent
unless he or she proves incompetence by a preponderance of the evidence. (§ 1369,
subd. (f); People v. Marks, supra, 31 Cal.4th at p. 215.) On appeal, we view the record in
the light most favorable to the trier of fact’s determination and uphold that determination
if it is supported by substantial evidence, i.e., evidence that is reasonable, credible, and of
solid value.8 (People v. Marks, supra, 31 Cal.4th at p. 215; People v. Marshall (1997) 15
Cal.4th 1, 31.)
       Dr. Hart opined that defendant could rationally assist his counsel during trial.
Dr. Hart was the chief psychiatrist at the jail where defendant was housed. Dr. Hart



8 We disagree with defendant’s assessment that an error in admitting Dr. Antoine’s
testimony and report “infected the entire framework of the competency trial.” A
structural error is a “ ‘defect affecting the framework within which the trial proceeds,
rather than simply an error in the trial process itself’ ” and is found in a very limited class
of cases. (Johnson v. United States (1997) 520 U.S. 461, 468-469 [137 L.Ed.2d 718,
728].) Defendant has not shown that the error alleged in this case -- erroneous admission
of privileged communications -- fits within the limited class of cases that requires
automatic reversal. (Ibid.)

                                              17
found defendant logical and goal oriented in his thinking. He observed that during the
competency hearing defendant made a “voluntary controlled request to leave [the
courtroom,] that actually indicated that he was thinking and planning.”
       Dr. Hart opined that defendant was malingering or intentionally presenting false
symptoms of a mental illness. He said defendant provided what appeared to be
intentionally false or inconsistent answers to interview questions. He observed that
defendant selected a “strategy” when responding to interview questions. Defendant’s
mental health records at the jail did not show delusional thinking by defendant. The trial
judge who observed defendant during the guilt phase and competency trials also found
that defendant’s conduct showed that defendant was not suffering from true delusions.
Dr. Chellsen conceded it was possible defendant was fabricating delusions. And
although Dr. Weiss opined that defendant suffered from a delusional disorder, she could
not rule out the possibility that defendant was malingering.
       In Dr. Hart’s view, the condition of a person who was truly delusional would
worsen under stress, such as during cross-examination. But the trial judge found
defendant did not mention the local developer at all when defendant was cross-examined
for two days. Dr. Chellsen agreed it would be unusual for a delusional schizophrenic to
not exhibit his delusions during cross-examination.
       Further, Dr. Hart and Dr. Weiss disagreed with Dr. Chellsen’s diagnosis of
schizophrenia, the diagnosis that formed the basis for Dr. Chellsen’s opinion that
defendant was not competent to assist his counsel. Dr. Hart testified that defendant’s
presentation of one fixed delusion is not consistent with a diagnosis of schizophrenia.
       Viewing the record in the light most favorable to the trial court’s findings, we
conclude substantial evidence supported the trial court’s determination that defendant did
not suffer from a mental disorder that prevented him from assisting his counsel at trial in
a rational manner, even if we do not consider Dr. Antoine and Dr. Cavanaugh’s
testimony and reports. Given the substantial evidence of defendant’s competence to

                                            18
stand trial, an objection by defense counsel to the admission of defendant’s
communications with Dr. Antoine and Dr. Cavanaugh and the reports by Dr. Antoine and
Dr. Cavanaugh would not have resulted in a more favorable result for defendant at the
competency trial. Accordingly, we reject defendant’s ineffective assistance of counsel
claim.
         To the extent defendant claims his trial counsel erred by failing to object to the
appointment of Dr. Antoine and Dr. Cavanaugh in August 2007 to conduct a section 1026
sanity evaluation of defendant when the same doctors had previously evaluated defendant
for competency under section 1368, there was no prejudice. The trial court declared a
mistrial and appointed two new doctors to examine defendant on the issue of sanity.
                                               B
         Defendant also claims the trial court abused its discretion in considering
inadmissible hearsay: defendant’s out-of-court statement to a fellow inmate that
defendant “needed to launch and succeed in an insanity defense.”
         The hearsay statement was contained in a police report Dr. Hart reviewed in
evaluating defendant’s competence to stand trial. The inmate who reported defendant’s
statement did not testify at the competency hearing, and neither did defendant or the
officer who prepared the police report. Nevertheless, the trial court considered the truth
of defendant’s out-of-court statement.
         Defendant failed to preserve his appellate claim because he did not object at trial
on the grounds raised on appeal. (Evid. Code, § 353, subd. (a).) We will, however,
consider the merits of defendant’s claim because he also asserts that his counsel was
ineffective in failing to object. But even if the trial court erred in considering
inadmissible hearsay, and even if defense counsel’s performance was deficient in failing
to object, defendant’s claim fails because he has not established prejudice.
         The application of ordinary rules of evidence does not implicate the federal
Constitution, and thus we review error in admitting hearsay under the standard set forth

                                               19
in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Harris (2005) 37 Cal.4th
310, 336.) We examine the entire cause to determine whether it is reasonably probable
that a result more favorable to the defendant would have been reached in the absence of
the error. (Watson, supra, 46 Cal.2d at p. 836; see also Evid. Code, § 353, subd. (b) [a
verdict or finding shall not be set aside, nor shall the judgment or decision based thereon
be reversed, by reason of the erroneous admission of evidence unless the error resulted in
a miscarriage of justice].) The second prong of the test for deciding an ineffective
assistance of counsel claim requires a similar analysis. (People v. Ledesma, supra, 43
Cal.3d at pp. 217-218; Strickland, supra, 466 U.S. at pp. 693-694 [80 L.Ed.2d at pp. 697-
698].)
         The trial court’s finding that defendant could assist his trial counsel in a rational
manner was supported by substantial evidence even in the absence of the challenged
hearsay evidence. Based on Dr. Hart’s testimony, the trial court’s observation of
defendant’s conduct during the guilt phase and competency trials, and the fact that
Dr. Chellsen and Dr. Weiss could not rule out the possibility that defendant was feigning
a mental disorder, we are convinced that any error with regard to admitting defendant’s
statement would not affect the result of the competency trial.
                                                C
         Defendant argues the cumulative effect of the erroneous admission of privileged
information and defendant’s out-of-court statement, and the inadequate performance by
his trial counsel, denied him due process of law. We disagree. Even where we have
assumed errors, we have concluded that the assumed errors were harmless. For the
reasons we have stated, it is not reasonably probable that the trial court would have
reached a different competency determination in the absence of the assumed errors.
(People v. Holt (1984) 37 Cal.3d 436, 458-459 [applying Watson standard of review];
People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) We also reject defendant’s claim



                                                20
that cumulative errors require reversal of the sanity verdict as that claim is premised on
the same arguments raised with regard to the competency trial.
                                             IV
       Defendant contends the trial court prejudicially erred in denying his motions to
discharge his appointed trial counsel.
       Defendant sought to relieve his appointed trial attorney, Lance Jacot, on four
occasions by making what is commonly referred to as a Marsden motion. (People v.
Marsden (1970) 2 Cal.3d 118 (Marsden).) The first Marsden motion was brought before
the preliminary hearing; defendant had not yet been held to answer for the charges.
Defendant was dissatisfied that Jacot had not interviewed two witnesses. Defendant did
not have the names of the witnesses but indicated one witness was a Panda Express
cashier with whom defendant spoke one or two days before the shooting, and the second
witness was a neighbor. Defendant said Jacot promised to deliver witness statements to
defendant but had not done so. Jacot said he anticipated calling witnesses at the
preliminary hearing. The trial court denied defendant’s Marsden motion, noting that
defendant’s case was only four- or five-months old, the preliminary hearing had not yet
been held, and defendant’s case was serious and required a lot of attention. The trial
court found Jacot competent and prepared, although a little optimistic about when he
could get his witness statements completed.
       Defendant made another Marsden motion less than three weeks later, prior to his
arraignment. Defendant sought to replace Jacot because, among other things, Jacot still
had not given him the witness statements. Defendant said he wanted to line up his
witnesses. Jacot responded that he submitted an investigation request with a return date
of about three and a half weeks hence. Jacot pointed out that defendant was just being




                                              21
arraigned and a trial date had not been set.9 Jacot described other issues in the case that
he explored with defendant, along with communications with defendant’s sister who
provided Jacot evidence she thought was important to the case. The trial court denied the
Marsden motion, finding insufficient cause to relieve Jacot.
       The trial court held another hearing on a Marsden motion about three months after
the jury returned guilty verdicts. The motion was heard before the judge who presided
over the guilt phase of trial. Defendant said his counsel “never got to that witness
[referring to defendant’s neighbor] at all in the trial. The DA, he was saying, I didn’t get
cocaine, and that I was doing it the day of the trial [sic]. That was a witness we never got
to. He assured me, but we never did, we never got testimony on him.” Defendant
suggested the neighbor could testify that he smelled cocaine coming from defendant’s
apartment, thereby supporting defendant’s claim about smoking cocaine for seven days in
his apartment. Jacot responded that his investigators tried but could not locate the
neighbor. The trial court denied the Marsden motion, finding no substantial showing that
Jacot provided inadequate representation.
       The trial court heard a fourth Marsden motion about 14 months later. Defendant
complained, among other things, that Jacot could not locate the neighbor who smelled
cocaine coming from defendant’s apartment even though counsel assured defendant it
would not be a problem to locate that witness. Jacot said the issue of the witness was
discussed at prior Marsden hearings. He said an investigator had the neighbor’s
apartment number but no name; however, the investigator eventually obtained the
neighbor’s name. The trial court determined that Jacot attempted to find the neighbor but




9 Defendant claims Jacot sought to avoid the problem with his delayed investigation by
suggesting that the issue had been resolved at a prior Marsden hearing. We disagree.
Jacot said the fact that no jury trial date had been set was dealt with previously. That fact
was indeed discussed at the prior Marsden hearing.

                                             22
was unsuccessful. It concluded that defendant’s complaint regarding the neighbor did not
create a substantial showing of inadequate representation and denied defendant’s
Marsden motion.
       On appeal, defendant again contends his appointed trial counsel was inadequate
because he did not promptly interview the neighbor and the neighbor subsequently could
not be located. On this basis, he claims the trial court abused its discretion in denying his
Marsden motions.
       “Established principles govern our assessment of whether the [trial] court abused
its discretion in denying defendant’s Marsden motion[s]. ‘Once a defendant is afforded
an opportunity to state his or her reasons for seeking to discharge an appointed attorney,
the decision whether or not to grant a motion for substitution of counsel lies within the
discretion of the trial judge. The court does not abuse its discretion in denying a Marsden
motion “ ‘unless the defendant has shown that a failure to replace counsel would
substantially impair the defendant’s right to assistance of counsel.’ ” [Citations.]
Substantial impairment of the right to counsel can occur when the appointed counsel is
providing inadequate representation or when “the defendant and the attorney have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result [citation].” ’ ” (People v. Myles (2012) 53 Cal.4th 1181, 1207.)
       A defendant claiming inadequate representation by counsel must prove that,
considering all of the circumstances at the time of counsel’s conduct, counsel’s
representation fell below an objective standard of reasonableness in light of prevailing
professional norms. (Strickland, supra, 466 U.S. at pp. 687-690 [80 L.Ed.2d at pp. 693-
695.) The defendant must overcome a strong presumption of reasonable professional
assistance because we must be highly deferential to counsel’s judgment. (Id. at pp. 689-
691 [80 L.Ed.2d at pp. 694-695].) Judicial scrutiny of counsel’s performance gives wide
latitude to counsel’s tactical decisions. (Id. at pp. 688-689 [80 L.Ed.2d at p. 694].)



                                             23
       Defendant’s challenge to the denial of his Marsden motions fails because he
cannot overcome the presumption of adequate representation. A complaint about
counsel’s decision to delay interviewing potential witnesses is essentially a tactical
disagreement which is generally insufficient to compel discharge of counsel. (People v.
Cole (2004) 33 Cal.4th 1158, 1192.) Contrary to defendant’s claim, defense counsel
investigated the witnesses defendant identified. Jacot succeeded in locating one of the
witnesses. An investigator working for the defense canvassed the area, but could not find
the second witness. Although it is possible defense counsel’s investigator could have
located the second witness had counsel decided to interview potential witnesses sooner,
on the facts before the trial court we are unwilling to conclude that counsel’s timing for
witness interviews was objectively unreasonable.
       In any event, counsel’s conduct did not result in the withdrawal of a crucial
defense. (People v. Pope (1979) 23 Cal.3d 412, 425 [to prove a claim of inadequate trial
assistance, defendant “must establish that counsel’s acts or omissions resulted in the
withdrawal of a potentially meritorious defense”], overruled on other grounds in
People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in
People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Diggs (1986) 177 Cal.App.3d
958, 968-969 [same].) Defendant claims his neighbor would have testified about
defendant’s cocaine use the week before the shooting. But that fact and a defense based
on defendant’s cocaine use was presented during the guilt and sanity phases of trial.
During the guilt phase, Jacot presented a defense of cocaine-induced psychosis, arguing
that prolonged cocaine use rendered defendant incapable of forming the requisite mental
states for committing a murder and murder in the first degree. Jacot argued in the sanity
phase that defendant was psychotic on the day of the shooting and the psychosis was
caused by long-term drug use.
       Jacot called witnesses in support of the cocaine-related defense. Defendant
testified, in both the guilt and sanity phases, about his heavy cocaine use during the week

                                             24
before the shooting. A psychologist who examined defendant for the sanity phase also
testified about defendant’s statements to her that he began to smoke cocaine after Jamie
left, and that he was not thinking clearly on the day of the shooting because of his cocaine
use. Jamie’s mother and sister said, during the guilt phase, that defendant was panicked,
frightened, paranoid, and very emotional the week after Jamie left with the children, and
defendant did not act like himself. Jamie’s mother opined that defendant was under the
influence of drugs around the time Jamie was killed, and the mother testified again in the
sanity phase about defendant’s drug use the week before Jamie’s death. Additionally, a
drug recognition expert testified at both trials that long term cocaine use can cause
psychosis. A forensic toxicologist also testified about cocaine-induced psychosis during
the guilt phase.
       Jacot’s decision to postpone interviewing defendant’s neighbor did not result in
the withdrawal of a crucial defense, and defendant fails to demonstrate prejudice
resulting from Jacot’s conduct. (People v. Fosselman (1983) 33 Cal.3d 572, 584 [“in
cases in which a claim of ineffective assistance of counsel is based on acts or omissions
not amounting to withdrawal of a defense, a defendant may prove ineffectiveness if he
establishes that . . . counsel failed to perform with reasonable competence and that it is
reasonably probable a determination more favorable to the defendant would have resulted
in the absence of counsel's failings”].)
       People v. Shaw (1984) 35 Cal.3d 535 (Shaw), People v. Jones (2010) 186
Cal.App.4th 216 (Jones), and People v. Rodriguez (1977) 73 Cal.App.3d 1023, 1029
(Rodriguez) do not help defendant. Counsel in Shaw failed to investigate a potentially
meritorious defense and did not present any defense in the case. (Shaw, supra, 35 Cal.3d
at pp. 538, 541-542.) Counsel in Jones acknowledged it was possible he failed to contact
two percipient witnesses in a timely manner, to the potential detriment of defendant’s
case; moreover, counsel did not request the help of an investigator to investigate the
defendant’s version of the events, and counsel did not present any witnesses to support

                                             25
the defendant’s claim. (Jones, supra, 186 Cal.App.4th at pp. 221, 224-225.) Counsel in
Rodriguez failed to determine potential witnesses whose testimony may have bolstered
defendant’s sole defense and discredited the prosecution’s eyewitness identification of
the defendant as the perpetrator of the charged robberies. (Rodriguez, supra, 73
Cal.App.3d at p. 1031.) No such facts are present here.
       According to defendant, Jacot mistakenly represented that, at a prior Marsden
hearing, he submitted a report regarding the search for defendant’s neighbor. The record
does not indicate the presentation of such a report at a Marsden hearing. But defendant
does not show how any such misstatement regarding a report evidences incompetent
representation in the manner asserted on appeal.
       We conclude the trial court acted well within its discretion in finding that
defendant failed to establish a substantial impairment of his right to effective assistance
of counsel. The trial court did not err in denying defendant’s Marsden motions.
                                      DISPOSITION
       The judgment is affirmed.


                                                                MAURO                     , J.


We concur:


             RAYE                     , P. J.


             NICHOLSON                , J.




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