Filed 12/31/14 In re Marcus J. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re MARCUS J., A Person Coming
Under the Juvenile Court Law.
                                                                     A141065
THE PEOPLE,
                                                                     (Contra Costa County
          Plaintiff and Respondent,
                                                                     Super. Ct. No. J13-01306)
v.
MARCUS J.,
          Defendant and Appellant.


          Appellant Marcus J. appeals from a February 4, 2014, dispositional order of the
juvenile court following a sustained finding that he committed robbery with a firearm use
enhancement. On appeal, Marcus challenges the court’s finding on the enhancement,
primarily arguing it was unsupported by substantial evidence, but also asserting five
additional arguments. We conclude that none of his contentions has merit, and we
affirm.
                                                 BACKGROUND
          The District Attorney for the County of Contra Costa filed a Welfare and
Institutions Code section 602 petition alleging that Marcus committed one count of
second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)),1 with an allegation that he
personally used a firearm. (§ 12022.53, subd. (b).)

          1
              All further statutory references are to the Penal Code unless otherwise indicated.


                                                             1
       Following a contested jurisdictional hearing, the juvenile court sustained the
robbery allegation and firearm use enhancement. It adjudged Marcus a ward, and
ordered him committed to the Orin Allen Youth Rehabilitation Facility for a nine-month
mandatory program.
       Marcus timely filed a notice of appeal.
       The Evidence At The Jurisdictional Hearing
       The first witness at the jurisdictional hearing was victim Christian L., who testified
as follows regarding the incident:
       On November 30, 2013, 17-year-old Christian arranged through Facebook to sell
A. L., whom he did not know, a pair of shoes. Christian and A. met in front of
Christian’s house in Brentwood at about 7:30 p.m. that evening. Marcus accompanied A.
Christian brought two pairs of shoes to show A., and A. purchased one of them for $100.
After completing the transaction, Christian went inside, and A. and Marcus left.
       Around 10:40 p.m., A. texted Christian that he was in the area, and wanted to buy
the other pair of shoes. Christian met with A., who was again accompanied by Marcus,
about a block from Christian’s house. Christian brought the shoes in a box, and when A.
asked to try them on, Christian handed him the box.
       As A. tried on the shoes, he asked Christian for the time. Christian took out his
phone from his pocket, checked it, and told A. the time. While A. put the shoes back into
the box, Marcus pulled out what appeared to be a black pistol, held it to Christian’s chest,
and said, “Give me everything.” Christian was scared and gave Marcus his cell phone.
Marcus asked Christian where the money was, and Christian responded that he did not
have it with him. Marcus and A. ran off with Christian’s shoes and cell phone. Christian
did not see what Marcus did with the weapon.
       Christian went to the police station a few days later to report the incident. There,
he viewed a photo lineup, and circled Marcus’s picture, telling the officer he was 60
percent sure Marcus was the person with the gun. The police never recovered the
weapon. At the hearing, Christian identified Marcus as the assailant with the gun.
       Christian further testified that he was not familiar with guns, and had never


                                             2
handled a firearm. He stated that he had handled a BB or pellet gun in the past, but did
not know what kind of pellet gun it was. He also testified that he was aware that
sometimes such guns can look very realistic. Christian knew the difference between a
revolver and a pistol, and described the gun Marcus had during the incident as a pistol,
although he did not know for certain whether Marcus’s weapon was a BB gun or an
actual gun. Christian testified that Marcus’s gun was the source of his fear and that he
was worried Marcus was going to shoot him. Defense counsel showed Christian a photo
of what counsel described as a “pistol,” and the following exchange occurred:
       “Q: [Christian], when the pistol was pulled out, you looked at it; right?
       “A: Yes.
       “Q: And that’s how you knew it was black?
       “A: Yes.
       “Q: And that was the source of your fear; correct?
       “A: Yes. [¶] . . .
       “Q: I’m handing you what’s been marked as Defense Exhibit A for identification.
       “Does that look like the pistol?
       “A: I couldn’t tell you. I don’t know. I don’t remember.
       “Q: Does it look similar?
       “A: Yes.”
       The exhibit contained a written description identifying the object as a pellet gun.
On the prosecutor’s objection, the court stated it would not consider that description and
admitted only the photograph on the limited basis of Christian’s testimony that it looked
similar to the gun used by Marcus.
       Brentwood Police Detective George Aguirre interviewed Marcus at the police
station on December 3, 2013. Officer Aguirre testified that during the interview, Marcus
provided him with the following version of events:
       Marcus went to A.’s house in Antioch on the afternoon of November 30, 2013,
and they decided to buy a pair of shoes from a teenager who lived in Brentwood. Their
friend, Kenny, drove them to Brentwood and dropped them off near Christian’s house.


                                             3
A. then called Christian to tell him they were outside. Christian came out of his house
with a pair of shoes and showed them to A. and Marcus, and A. purchased them. After
the sale, Marcus and A. left and returned to Antioch.
       Later that evening, Marcus and A. got together and decided they wanted to get a
second pair of shoes from Christian without paying for them. They again obtained a ride
from Kenny. While they were in the car, Kenny handed Marcus a gun. Marcus claimed
it was not a real handgun, but a “C02 type BB gun.” One of them called Christian, and
they met him away from his house. When Christian gave A. the pair of shoes to try on,
Marcus pulled out the gun, placed it on Christian’s chest, and demanded Christian give
him “everything.” A. ran off with the shoes, and Marcus took off running with
Christian’s cell phone.
       The Juvenile Court’s Order
       After the close of evidence, Marcus argued that the firearm use enhancement
could not be sustained since Christian did not know if Marcus had a real gun or a pellet
gun, and there was evidence, through Marcus’s statement to the police, that he used a
pellet gun.
       The court rejected Marcus’s argument, finding “beyond a reasonable doubt that
[Marcus] . . . committed . . . second degree robbery,” and finding true the firearm use
enhancement under section 12022.53, subdivision (b). In reaching this conclusion, the
court relied on People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras),
which, among other things, held as follows: “a defendant commits a robbery by
displaying an object that looks like a gun, the object’s appearance and defendant’s
conduct and words in using it may constitute sufficient circumstantial evidence to support
a finding that it was a firearm.” (Id. at p. 1437.) Applying Monjaras, the juvenile court
reasoned: “ ‘[T]he victim’s inability to say conclusively that the gun was real and not a
toy does not create a reasonable doubt as a matter of law that the gun was a firearm.’
[¶] I find here with the display of the gun, the object, I’ll call it, I guess, and the words
used and the conduct of the defendant clearly indicated that it was reasonable to—to a
fact finder to find and for the victim to assume that this was a weapon and should


                                               4
engender fear of injury and bodily harm, and that’s what this statute, I think, is designed
to punish. So by the same standard, I find the [section] 12022.53 allegation to be true.”
                      MARCUS’S CONTENTIONS ON APPEAL
       Seeking to overturn the jurisdictional finding that he used a firearm in the
commission of a robbery, Marcus presents six contentions, some of which are difficult to
take seriously. The contentions are these: (1) he was denied due process because there
was insufficient evidence to support the court’s true finding on the firearm enhancement;
(2) the juvenile court erred by relying on Monjaras; (3) the prosecutor committed
misconduct by arguing that the court should base its factual finding on Monjaras; (4) the
court violated Marcus’s right to proof beyond a reasonable doubt by applying the wrong
standard of proof on the enhancement; (5) the court erred by misinterpreting the purpose
of the enhancement statute; and (6) Marcus was denied the effective assistance of counsel
to the extent his trial counsel did not fully preserve an objection to the court’s
consideration of the Monjaras decision or the prosecutor’s misconduct.
                                       DISCUSSION
       Substantial Evidence Supports The Court’s Finding On The Firearm Use
       Enhancement
       Marcus first challenges the juvenile court’s ruling on the firearm enhancement,
arguing that there is insufficient evidence that the item Marcus pointed at Christian was a
firearm.
       In attacking the sufficiency of the evidence supporting the court’s ruling, Marcus
assumes a daunting burden: “The same standard governs review of the sufficiency of
evidence in adult criminal cases and juvenile cases.” (In re Matthew A. (2008) 165
Cal.App.4th 537, 540.) “If, on the entire record, there is substantial evidence to support
the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass
on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the
weight of the evidence. Rather, we draw all reasonable inferences in support of the
findings, view the record most favorably to the juvenile court’s order, and affirm the
order even if other evidence supports a contrary conclusion. [Citation.] The appellant


                                              5
has the burden of showing the finding or order is not supported by substantial evidence.
[Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 250–251.)
       Section 12022.53, subdivision (b) generally provides that any person who, in the
commission of a felony, personally uses a firearm, shall be punished by an additional and
consecutive term of imprisonment in state prison for 10 years. (See § 12022.53, subd.
(b).)2 As used in that section, “ ‘firearm’ means a device, designed to be used as a
weapon, from which is expelled through a barrel, a projectile by the force of an explosion
or other form of combustion.” (§ 16520, subd. (a).) Under this provision, the firearm
need not be operable or loaded for the enhancement to apply. (§ 12022.53, subd. (b).) In
contrast, a BB or pellet gun is defined in section 16250 as “any instrument that expels a
projectile, such as a BB or a pellet, not exceeding 6mm caliber, through the force of air
pressure, gas pressure, or spring action, or any spot marker gun.” (§ 16250.) A BB gun
or a pellet gun is not a “firearm” for purposes of a sentence enhancement under section
12022.53. (People v. Dixon (2007) 153 Cal.App.4th 985, 1001 (Dixon); see Monjaras,
supra, 164 Cal.App.4th at p. 1435.)
       At the hearing, Christian testified that after he pulled out his phone to tell A. the
time, Marcus “pulled a gun out,” pointed it to Christian’s chest, and told him, “Give me
everything.” Christian stated that he could see the entire firearm and that it felt heavy.
He testified that Marcus’s gun was the source of his fear and that he was worried Marcus
was going to shoot him. This evidence was sufficient to support the juvenile court’s
finding that Marcus used a firearm, as Monjaras demonstrates.
       In Monjaras, supra, 164 Cal.App.4th 1432, defendant approached the victim and
said, “Bitch, give me your purse,” before pulling up his shirt to display the handle of a
black pistol tucked in his waistband. (Id. at p. 1434.) After the victim turned over her
wallet, defendant’s accomplice pressed something against the victim’s back and took her
purse from her shoulder. (Ibid.) A jury convicted defendant of robbery, and found he


       2
        Robbery is specified as a felony for the purposes of section 12022.53,
subdivision (b). (§ 12022.53, subd. (a)(4).)


                                              6
personally used a firearm. (Ibid.)
       On appeal, defendant sought reversal of the firearm use enhancement, pointing out
that the “victim could not say whether the pistol in defendant’s waistband was a gun or a
toy,” in claimed support of his argument that “ ‘there was no evidence of a gun presented
to the jury to support an inference the weapon was real.’ ” (Monjaras, supra, 164
Cal.App.4th at p. 1435.) Rejecting the argument, the court concluded that
“circumstantial evidence alone is used to prove the object was a firearm . . . because
when faced with what appears to be a gun, displayed with an explicit or implicit threat to
use it, few victims have the composure and opportunity to closely examine the object;
and in any event, victims often lack the expertise to tell whether it is a real firearm or an
imitation. And since the use of what appears to be a gun is such an effective way to
persuade a person to part with personal property without the robber being caught in the
act or soon thereafter, the object itself is usually not recovered by investigating officers.”
(Id. at p. 1436.) Here, the evidence suggests that Marcus implicitly threatened to use the
gun. Faced with this threat, Christian had little opportunity to closely examine the object,
but he nonetheless identified the weapon as a black pistol.
       Marcus asserts that Christian’s testimony “that [the weapon] looked similar to the
picture of a pellet gun he was shown in court,” combined with his statement that “he did
not know whether [the weapon] was a BB gun or a real gun,” demonstrates insufficient
evidence because such evidence is based merely on “Christian’s uncertainty about the
true nature of the item Marcus held.” He thus argues that reliance on Christian’s inability
“to say what he saw, as proof that he saw a particular thing that was different from what
he thought he saw, is nothing more than speculation or conjecture, and not substantial
evidence.” This argument is unpersuasive.
       Christian’s inability to say conclusively that the gun was a real firearm and not a
toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm.
(See Monjaras, supra, 164 Cal.App.4th at p. 1436.) Marcus’s own words and conduct in
the course of the robbery are sufficient to support a rational fact finder’s determination
that he used a firearm. (Ibid.) When Marcus pointed the weapon at Christian’s chest and


                                              7
ordered Christian to “Give [him] everything,” he in effect communicated that it was a
firearm. “[W]hen as here a defendant commits a robbery by displaying an object that
looks like a gun, the object’s appearance and the defendant’s conduct and words in using
it may constitute sufficient circumstantial evidence to support a finding that it was a
firearm within the meaning of section 12022.53, subdivision (b).” (Monjaras, supra, 164
Cal.App.4th at p. 1437.)
       Marcus also argues that Monjaras is inapplicable because it only applies to factual
situations where there is no contrary evidence that the weapon was anything but a
firearm. Instead, Marcus contends that this case is more analogous to Dixon, supra, 153
Cal.App.4th 985. In Dixon, the court found that the prosecution did not prove the firearm
enhancement because the evidence showed that the guns were BB guns or pellet guns and
not real firearms.3 Marcus argues that, as in Dixon, there is evidence in the form of his
statement to Officer Aguirre that he had a “C02 type BB gun,” supporting his position
that he had a BB gun, not a firearm.
       It is probably enough to note that the juvenile court did not have to believe
Marcus. But beyond that, the question before us is whether there was substantial
evidence to support the court’s finding that Marcus used a firearm in the commission of
the robbery, not whether there is evidence to the contrary. The court had the opportunity
to consider this argument in conjunction with other evidence and nonetheless found
Marcus guilty of the enhancement beyond a reasonable doubt. That finding is supported.
Borrowing from the court’s language in Monjaras, this case is one where Marcus was not
engaged in a childhood game of cops and robbers; the robbery was real, and there was
substantial evidence supporting the court’s conclusion that the pistol he used was a real
firearm, not a toy. (See Monjaras, supra, 164 Cal.App.4th at p. 1435.)
       In an attempt to circumvent the court’s reliance on Monjaras, Marcus argues that
this evidence nonetheless raises inconsistent inferences that must be resolved in his favor.


       3
         The court, however, did not specify the type of evidence that it relied on to make
its determination. (Dixon, supra, 153 Cal.App.4th at p. 1001.)


                                             8
Marcus claims that “ ‘where the facts supporting two inconsistent inferences stand in
equipoise, judgment must go against the party with whom the burden of sustaining one of
the inferences resides,’ ” a rule for which he relies on People v. Kovacich (2011) 201
Cal.App.4th 863, People v. Tran (1996) 47 Cal.App.4th 759, and Pennsylvania Railroad
Co. v. Chamberlain (1933) 288 U.S. 333 (Chamberlain). Such reliance is misplaced.
       As the People correctly note, this theory derives from People v. Allen (1985) 165
Cal.App.3d 616. In Allen, both defendants were at the murder scene, and two .32 caliber
cartridges were found at the scene, which suggested that the victim’s wounds were
inflicted by the same gun. (Id. at p. 626.) The court found insufficient evidence to prove
which one of the two defendants had personally held and used the gun that killed the
victim, reasoning that “[s]ince the evidence of what happened in the kitchen proved at
most a 50 percent probability that he was the user,” the state’s burden of proving that
defendant personally used a weapon beyond a reasonable doubt was not met. (Ibid.) The
court stated that this situation belonged “ ‘to that class of cases where proven facts given
equal support to each of two inconsistent inferences; in which event, neither of them
being established, judgment, as a matter of law, must go against the party upon whom
rests the necessity of sustaining one of these inferences against the other . . . .’ ” (Ibid.,
quoting Chamberlain, supra, 288 U.S. at p. 339.)
       The cases are inapplicable here, since there was no question of inconsistent
inferences. This was simply a situation in which the victim testified that the weapon was
a gun, the assailant claimed it was not, and the trier of fact made an implied finding that
the assailant’s testimony was not credible.
       The Juvenile Court Applied The Correct Legal Standard
       Alternatively, Marcus seeks reversal of the juvenile court’s finding on the firearm
enhancement based on People v. Hunter (2011) 202 Cal.App.4th 261 (Hunter).
       In Hunter, supra, 202 Cal.App.4th 261, the jury found defendant guilty of robbery
and burglary, and further found that he personally used a firearm. (Id. at pp. 264–265.)
In connection with the enhancement, the trial court gave the jury the following pinpoint
instruction, based on Monjaras: “ ‘When a defendant commits a robbery by displaying


                                               9
an object that looks like a gun, the object’s appearance and the defendant’s conduct and
words in using it may constitute sufficient circumstantial evidence to support a finding
that it was a firearm. The victim’s inability to say conclusively that the gun was real and
not a toy, does not create a reasonable doubt as a matter of law the gun was a firearm.’ ”
(Id. at p. 267.)
       On appeal, the court determined that the instruction was defective for two reasons.
(Hunter, supra, 202 Cal.App.4th at p. 275.) First, it was unduly argumentative since it
highlighted one of two reasonable conclusions the jury could reach from circumstantial
evidence. (Id. at pp. 275–276.) Second, the instruction impermissibly lightened the
prosecution’s burden to prove the use allegation beyond a reasonable doubt. (Id. at p.
276.) The court concluded that “the giving of an instruction suggesting that evidence
received by the court and properly before the jury is insufficient to create reasonable
doubt about an issue the district attorney was required to prove, is manifestly
impermissible.” (Id. at p. 277.) The court observed that the fact the language was taken
from Monjaras did not justify its use as an instruction because that case addressed the
sufficiency of evidence and had nothing to do with jury instructions. (Ibid.) It explained:
“As indicated, the proposition for which Monjaras stands, that ‘[c]ircumstantial evidence
alone is sufficient to support a finding that an object used by a robber was a firearm’
[citations] does not exclude the possibility that circumstantial evidence alone may be
insufficient to support a finding that an object used by a robber was a firearm.” (Ibid.)
       Marcus argues that in relying on the same language as a basis for its factual
determination, the court in essence improperly instructed itself on the law, then used that
improper instruction as the basis for its decision. The argument is fatuous.
The concerns in Hunter are inapplicable here because unlike a jury, the juvenile court
would not reasonably understand the language in Monjaras to preclude a finding of
reasonable doubt. Indeed, we presume the juvenile court knew, properly followed, and
applied established statutory and case law. (Evid. Code, § 664; People v. Scott (1997) 15
Cal.4th 1188, 1221; People v. Castaneda (1975) 52 Cal.App.3d 334, 342.) And nothing
in the court’s statements indicate it misconstrued the statements in Monjaras, nothing to


                                             10
doubt that the court applied the correct law.
       The Prosecutor Did Not Commit Misconduct In Arguing The Applicability of
       Monjaras To The Court
       Marcus also argues that the prosecutor committed misconduct by arguing to the
court that: (1) Monjaras held that in a circumstantial evidence case, the fact that a gun
was displayed, how it was displayed, and that it was used to implicitly threaten and instill
fear in the victim to obtain their property is enough to support a true finding in a section
12022.53, subdivision (b) enhancement; (2) Monjaras held that a victim’s inability to say
that the gun was real, and not a toy, does not create a reasonable doubt as a matter of law
that the gun was not a firearm; and (3) based on the holding in Monjaras, there is more
than enough evidence to support the enhancement.
       Passing over the question of how arguing to a court can be “prosecutorial
misconduct,” we note that defense counsel failed to timely object to the prosecutor’s
argument, barring a claim of misconduct on appeal. (People v. Davis (1995) 10 Cal.4th
463, 537; People v. Webb (1993) 6 Cal.4th 494, 533.)
       Marcus’s claim also fails on the merits. The applicable federal and state standards
regarding prosecutorial misconduct are well established. Under California law, a
prosecutor commits reversible misconduct if he or she makes use of “ ‘deceptive or
reprehensible methods’ ” when attempting to persuade the trial court or jury and it is
reasonably probable that without such misconduct, an outcome more favorable to the
defendant would have resulted. (People v. Riggs (2008) 44 Cal.4th 248, 298.) Under the
federal Constitution, conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights is not a constitutional violation unless the
challenged action “ ‘ “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” ’ ” (Ibid.) Marcus has not demonstrated that the
prosecutor did anything “ ‘deceptive’ ” or “ ‘reprehensible’ ” or that “ ‘ “infected the trial
with unfairness.” ’ ”
       The Court Applied The Correct Standard of Proof
       Next, Marcus asserts that the court applied the wrong standard of proof in


                                                11
applying Monjaras since that case did not “determine whether the prosecutor proved the
enhancement beyond a reasonable doubt. Rather, it considered only whether there was
sufficient evidence from which the jury could have inferred that the object used in
committing the offense was a firearm, i.e., whether it ‘may support a rational fact finder’s
determination.’ ”
       As we best understand, Marcus’s contention stems from the court’s statement: “I
find here with the display of the gun, the object, I’ll call it, I guess, and the words used
and the conduct of the defendant clearly indicated that it was reasonable to—to a fact
finder to find and for the victim to assume that this was a weapon and should engender
fear of injury and bodily harm, and that’s what this statute, I think, is designed to punish.”
Marcus contends that this statement showcases the court’s uncertainty as to the nature of
Marcus’s gun and its belief that all that was necessary was for it to be “reasonable” to
find that the object was a gun. This interpretation is flawed.
       In general, we presume the juvenile court applied the proper burden of proof in
matters tried to the court. (Ross v. Superior Court (1977) 19 Cal.3d 899, 914.) We agree
with the People’s argument that in stating “I have no trouble finding and I do find that by
the standard of beyond a reasonable doubt that this was—this crime was committed,” the
court explicitly understood its duty to determine from the evidence whether the
allegations in the petition were proved based on that standard. Moreover, in addition to
relying on Monjaras, the juvenile court analyzed and considered all the evidence
presented at the hearing to support its finding beyond a reasonable doubt.
       The Court Did Not Misinterpret The Firearm Enhancement Statute
       Marcus contends that the court misinterpreted the purpose of the enhancement
statute. He argues that the court’s statement “that the firearm enhancement is designed to
punish people where the victim thinks defendant has a gun, and is thus afraid of bodily
harm,” is erroneous since the statute was meant to punish more severely those individuals
who actually used a gun in the commission of a crime and not those who simply engender
fear of bodily harm, or uses something the victim might assume is a gun. Marcus claims
that the court incorrectly relied on its misinterpretation of the statute as a basis for its


                                               12
findings. This argument misconstrues the court’s words.
       Section 12022.53, subdivision (b) applies whenever a gun is intentionally
displayed in a menacing manner to help facilitate a crime. (People v. Carrasco (2006)
137 Cal.App.4th 1050, 1059–1060.) The statute is “to be construed expansively, not
narrowly,” because the legislative intent is to impose longer prison sentences for persons
committing felonies with a firearm. (People v. Frausto (2009) 180 Cal.App.4th 890,
898.) Whether a defendant used a firearm in the commission of a felony is for the trier of
fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) The court’s
statement that “the words used and the conduct of the defendant clearly indicated that it
was reasonable to—to a fact finder to find and for the victim to assume that this was a
weapon and should engender fear of injury and bodily harm” correctly construes the
statute because the question addressed was whether Marcus had a firearm at the time of
the robbery.
       Marcus Was Not Denied The Effective Assistance of Counsel
       Finally, Marcus claims that to the extent trial counsel did not fully preserve
Marcus’s objections to the court’s consideration of the Monjaras decision, or the
prosecutor’s misconduct, Marcus was denied the effective assistance of counsel in
violation of the Sixth Amendment.
       To demonstrate ineffective assistance, defendant must establish: (1) counsel’s
representation fell below an objective standard of reasonableness; and (2) there is
reasonable probability that, but for counsel’s unprofessional errors, a determination more
favorable to defendant would have resulted. (People v. Huggins (2006) 38 Cal.4th 175,
205-206 (Huggins); Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–692
(Strickland).)
       Marcus has failed to show deficient performance. As noted above, the court did
not err by relying on Monjaras, and the prosecutor did not commit misconduct in arguing
Monjaras to the court, so it was not deficient for counsel not to object. Since Marcus has
not shown counsel’s conduct was deficient, we need not address prejudice. (Huggins,
supra, 38 Cal.4th at p. 206; Strickland, supra, 466 U.S. at p. 692.)


                                             13
                            DISPOSITION
The judgment is affirmed.




                                14
                                 _________________________
                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart J.




                            15
