Filed 7/20/16 P. v. Xiong CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069721
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1405399)
                   v.

TOU VANG XIONG,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
         Richard A. Levy, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey
D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Tou Vang Xiong (defendant) stands convicted, following a jury trial, of two
counts of premeditated murder in which he personally and intentionally discharged a
firearm and proximately caused great bodily injury or death to Gao Yang and Nhia Yang
(Pen. Code,1 §§ 187, subd. (a), 12022.53, subd. (d); counts I & II), premeditated
attempted murder in which he personally and intentionally discharged a firearm and
proximately caused great bodily injury or death to Lee Pao Yang (§§ 187, subd. (a), 664,
12022.53, subd. (d); count III), and assault with a deadly weapon upon Xay Yang, during
the commission of which he personally used a firearm (§§ 245, subd. (a)(1), 12022.5,
subd. (a); count IV). His motion for a new trial was denied, and he was sentenced to
fully consecutive indeterminate terms on counts I through III, and seven years in prison
on count IV. He was also ordered to pay victim restitution, along with various fees, fines,
and assessments.
       On appeal, we hold: (1) The jury’s findings of premeditation must be reversed
due to the erroneous admission of evidence of defendant’s postoffense conduct, but
defendant’s other claims of evidentiary error do not require reversal; (2) the trial court did
not err by excusing a juror for illness; (3) the trial court acted within its discretion by
denying defendant’s posttrial motion for substitute counsel; and (4) defendant is not
entitled to reversal of the conviction on count IV. We conditionally modify the judgment
on counts I through III and remand the matter to the trial court with directions. We also
order the correction of a clerical error with respect to the judgment on count IV. In all
other respects, we affirm.




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


                                               2.
                                         FACTS
                                             I
                                PROSECUTION EVIDENCE
                                  The Charged Offenses
       As of July 20, 2009, Xay Yang resided in the 1700 block of Radley Place,
Modesto.2 Xay, who is Hmong, explained there are approximately eight last names in
the Hmong culture. If two people share the same last name, they are automatically part
of the same clan. It is considered taboo to date or marry someone from the same clan,
even though blood ties, if any, may be very distant. Clan members refer to each other as
cousins or, in the case of someone older, grandparent or aunt or uncle, even if they are
not blood relations.
       Nhia Yang was Xay’s brother. As of July 20, he was living in a detached room
behind dwelling A. The room had two doors and a small window, as well as electricity,
but no kitchen or bathroom.
       Xyeem Yang had known defendant for two months as of July 20. They were
“[b]uddies.” They lived together in Winton, along with Xyeem’s “uncle,” Bee Yang,
Bee’s son, and Gao Yang.3 Gao and defendant had been going out as long as Xyeem had
known defendant.
       Lee Pao Yang lived in the same residential complex as defendant, and they
became friends. As of July 20, they had known each other since Lee got out of jail,


2       To avoid confusion, we refer to the Yangs and certain other individuals by their
first names. No disrespect is intended. We also refer to the scene of the shooting, which
was the address at which Xay lived, as dwelling A, and to the house directly across the
street as dwelling B.
       Undesignated references to dates in the statement of facts are to the year 2009.
3      Bee was not really Xyeem’s uncle, but Xyeem referred to him as such as a sign of
respect. Xyeem had known Nhia most of his life, but was not sure if there was a close
family relationship.


                                            3.
following a receiving stolen property conviction, in June. Gao, Lee’s distant cousin,
introduced them. Lee had known Nhia two or three weeks. Defendant introduced them.
During the time they knew each other, Lee and defendant smoked crystal
methamphetamine together approximately twice a day almost every day. Defendant
furnished the drugs. Lee did not know where he got them, although he personally saw
defendant sell drugs.
       Around 5:00 or 6:00 Saturday evening, July 18, Xyeem, defendant, Gao, and Lee
went to a party in Modesto. Lee did not want to go and said he had to attend an uncle’s
funeral in Sacramento, but defendant pointed a gun at him and said if Lee did not go with
him, defendant was going to take Lee’s “whole family to a different place.” Defendant
took what Xyeem believed to be an AR-15 firearm in the car with them. He said it was
for protection, but did not say protection from what.4 Xyeem did not remember what
happened from the time of the party into the next day, because he was drinking. He did
see Gao and defendant arguing for a little bit; however, this was typical of their
relationship. Xyeem saw them arguing every day about their relationship. Both would
yell and accuse the other of cheating. Then they would make up.
       The group stayed at the party until early Sunday morning, July 19. They then
went to Nhia’s home, the detached room behind dwelling A. They all smoked
methamphetamine, including Nhia, who had also been at the party.5 At some point (Lee
believed around 3:00 or 4:00 a.m.), everyone fell asleep. Xyeem was in the main house.


4      In the past, Xyeem had seen defendant with a .357 revolver and a .380 pistol in
addition to the AR-15.
       According to Lee, defendant wrapped the AR-15 in a white towel and put it in the
trunk just before they left for Modesto.
5      Lee originally denied doing drugs to police because he was on probation. The five
of them (Lee, Nhia, Xyeem, Gao, and defendant) smoked methamphetamine furnished by
defendant on multiple occasions over the course of the weekend, although most of the
times, Xyeem and Lee did not join in.


                                             4.
Lee slept on the couch in Nhia’s room. Nhia slept on one bed. Defendant and Gao slept
on the other bed.
       Sunday morning, everyone woke and started going about their day. According to
Lee, they all did drugs and then ate breakfast in the kitchen of the main house.
According to Xyeem, defendant said something about people wanting to do “voodoo
things” to him. Defendant, Gao, and Xyeem went out to buy food and go to the Buddhist
temple.6 It was defendant’s idea to go to the temple. He wanted to be blessed. He said
he thought there was a bad spirit in him and he wanted to get rid of it. After they left the
temple, they bought some groceries, then went home and cooked.
       Xyeem recalled that he, defendant, and Gao returned to Nhia’s room and smoked
some methamphetamine. At some point, Gao cooked, and they ate in the living room of
the main house. They then returned to Nhia’s room. This was Sunday night, July 19.
Around 10:00 p.m. or midnight, defendant, Gao, and Nhia went to Walmart to get some
clothes. After they returned, defendant and Gao argued about being possessed and
cheating on each other. At some point, defendant pulled out a revolver, unloaded it
except for one bullet, spun the cylinder, pointed it at Gao, and pulled the trigger.
Defendant was smiling when he did it. Xyeem had seen defendant do the same thing two
or three times when arguing with Gao. Because Gao and defendant were getting violent,
Xyeem put the AR-15 between Nhia and the bed. He also told defendant to “be cool.”
Defendant “chill[ed] out” after that. The five of them — defendant, Gao, Xyeem, Nhia,
and Lee — then smoked methamphetamine “a couple times.” About two hours later,

6      Nhia and Lee stayed home. Lee did not call the police at this time to report
defendant had threatened his family, because he was afraid defendant would return, learn
he had called from Nhia, who was defendant’s best friend, and do something to Lee’s
family or shoot him.
       Lee estimated defendant and Gao were gone until night, perhaps six or seven
hours. Just before defendant, Gao, and Xyeem left, Lee saw defendant bring the AR-15
into Nhia’s room. It was still wrapped in the towel.


                                              5.
around midnight or 1:00 a.m., Xyeem went to the front bedroom in the main house to
sleep.
         Lee recalled that defendant, Gao, and Xyeem returned around 8:00 or 9:00 p.m.
Defendant brought some food and crystal methamphetamine into Nhia’s room. Nhia
cooked the food, and they all ate in that room. They all smoked some of the
methamphetamine. Lee estimated the five of them had around four puffs each. After
that, they just sat around and talked. This was around midnight. Lee was lying on the
couch, texting his girlfriend on defendant’s phone.7 He was not paying attention to
anything going on in the room.
         Everyone went to bed between 1:00 a.m. and 2:00 a.m., with Lee, Nhia, defendant,
and Gao bedding down in Nhia’s room. As on the night before, defendant and Gao were
on one bed, Nhia was on the other bed on the other side of the room, and Lee was on the
couch. Xyeem was in the front house.
         Sometime after everyone went to bed, Lee, who was still texting his girlfriend,
heard defendant and Gao moving and whispering as they tried to have sex. Gao did not
want to have sex while Lee and Nhia were in the room, and she and defendant started
arguing. It was commonplace for them to argue; Lee estimated they argued about twice a
week, and he basically ignored it.8 This night, the argument went on and on. Lee tried to
sleep, but had to use the bathroom and so he got up around 4:30 to 5:00 a.m. and entered
the front house through the French door in the back. The lights were off in Nhia’s room.
Defendant and Gao had been loudly arguing for an hour or two. At no time that evening
had Lee seen defendant pull a gun on Gao. At the time Lee left the room, the rifle was
between defendant’s and Nhia’s beds.


7        Lee did not have a phone of his own. Defendant loaned him his.
8       Lee testified at the preliminary hearing that the relationship between the two was
fine, and they argued once in a while, mostly over money and drugs.


                                              6.
      Because he did not feel comfortable listening to Gao and defendant argue, Lee
remained in the bathroom a good 15 to 20 minutes. When he returned, the lights were on
in Nhia’s room. Defendant and Gao were still yelling at each other. Nhia had gotten out
of bed and was sitting on a chair. Gao was sitting on the bed. Defendant was holding the
rifle. He was the only person in the room holding a weapon.
      Gao and defendant argued for another five minutes or so, then defendant fired five
shots into the ceiling by Nhia’s bed. He was very angry. Everyone fell silent and looked
at him. He then pointed the AR-15 directly at Gao, who put her hands up to try to protect
her face, and fired three times without saying anything. The bullets struck Gao in the
face, and she fell on the bed. Defendant then started to swing the gun at Lee, who was
standing in the doorway, and Lee crouched and ran as gunfire came his way.
      Lee ran around the house, then stopped to check if he had been hit. He realized he
had been shot because blood was coming from his mouth.9 He heard defendant say,
“This is what you get, Nhia.” Defendant sounded angry. Lee heard a couple of gunshots
a couple seconds after defendant spoke, and he took off running again. He ran for several
blocks, because he was scared of defendant chasing after him and killing him. He called
911 on defendant’s phone.
      On the night of July 19 and into the early morning of July 20, Xay, who was a
fulltime student and also worked, was finishing up her homework in her room, which was
adjacent to the walkway separating Nhia’s room from the main house. She was
completely sober.
      Xay went to bed around 2:00 a.m. on Monday, July 20. She subsequently was
awakened by a few loud pops that seemed to come from the direction of Nhia’s room.
She looked at the clock; it was 5:20 a.m. She heard Nhia say something like, “Hey,

9      Lee was struck on the chin and both arms. He ultimately was hospitalized for two
weeks as a result, and had to have surgery to have his chin reconstructed and his teeth
repaired. Afterward, his jaw was wired shut for six months.


                                            7.
man,” or “Eh, man.” He seemed surprised and confused. His voice came from inside his
room. Xay then heard three or four more shots.
       Not realizing at the time she was hearing gunshots, Xay ran toward the French
door, which was the only exit directly into the backyard, to see what was going on. She
saw defendant standing on the walkway a couple of feet from the French door and four or
five feet from the east entrance to Nhia’s room. Defendant was holding a rifle and a
handgun. He was pointing the rifle toward the east door of Nhia’s room. He appeared
cautious, as if he was still waiting for someone. He did not ask Xay for help or to call an
ambulance. He told her, “You guys set these tigers on me,” and that there were tigers
everywhere.10 She thought he meant actual people that were related to her, i.e., members
of the Yang clan, as opposed to an animal with claws, because Hmongs usually used
“tiger” to refer to someone the person disliked. “Tiger” was a common insult.11 It could,
however, refer to a supernatural being that was a menacing creature. At some point,
defendant told Xay he was a shaman and was capable of seeing “these things.”12 Other
than using the word “tiger,” defendant seemed oriented to time and place. Xay believed
defendant to be referring to people.



10     Xay also reported defendant said, “You guys set these monsters on me.”
11    Xay explained that animals play a significant role in Hmong culture. Certain
animals, like tigers, carry a negative connotation.
12     Xay explained the Hmong people’s cultural beliefs include a deep-rooted belief in
the spiritual world. The Hmong perform rituals on a yearly basis to keep their spiritual
being well. They also have shamans who are capable of communicating with the dead,
and who do what is necessary to repair the living spiritual being. The spirits choose who
will be a shaman, and while there are quite a few shamans in the Hmong population in
Stanislaus County, it is common for people to claim to be shamans when they are not. In
the Hmong culture, there is no designated place to go to worship, although Xay knew of
Laos Temple in Ceres. If a person needs prayer or blessings, he or she goes to a shaman.
Likewise, if a person feels he or she has an evil spirit inside, which is relatively common,
he or she normally visits a shaman.


                                             8.
        Defendant also demanded several times that Xay call his father. Xay truthfully
told him the house phone could not make long-distance calls. She had a cell phone in her
hand, but hid it from defendant because she did not want him to escape.
        Defendant had Xay open the French door all the way so he could see inside. He
pointed the handgun directly at her forehead from an inch or two away and told her to
come outside. He told her “he had killed the two tigers, he killed them there,” and he
pointed to Nhia’s room. He wanted her to take him home, and said if she did not help
him, she would see what would happen. He pointed her to the room where the bodies
were and forced her to go and look at them.
        Xay went to the door of Nhia’s room. Defendant kept the gun pointed at her the
whole time. She looked inside and saw Nhia on the couch. He appeared to be dead.
Defendant said there was a second body, but Xay did not see anyone else, as she could
not see the whole room from just outside the door. Defendant asked Xay if she was
scared. She told him yes. He seemed very proud of and boastful about what he had
done.
        Xay walked back toward the French door, while defendant backed up toward the
fence. He made Xay swear she would help him. He made her raise her hand and swear
upon the next generations and on the name of her recently deceased father, so that if she
did not help him, she would be cursed. Defendant said if Xay did not help him, the next
thousands of generations of Yangs would be cursed.13
        Defendant said Xay had to drive him home, because then his family could help
him. She said she could not do that without her purse and key, which were in her room.
Defendant kept insisting that she take him home. He seemed in a hurry to get out of



13     Xay explained curses are common in the Hmong culture. If someone does
something wrong or does not live up to an agreement, the wronged person can put a curse
on the wrongdoer. Swearing oaths and cursing are taken very seriously.

                                              9.
there, but refused to exit through the front door or the back gate. He then told her to
address the tiger that had gotten away. Xay did not see anyone else around.
       Xay kept telling defendant that he had to let her get her purse and key, which were
in her room, or there was no way she could help him. He finally relented, then told her to
open the front door so he could run through the house. Xay obeyed, then defendant told
her to come back toward him and stay in the middle of the living room. He still had the
gun pointed at her. He then quickly ran through the house and stopped by the passenger
side of Xay’s vehicle. Xay made it appear she was going toward her room, then ran to
the front door and closed and locked it.
       During the entire incident, which lasted about five minutes, Xay never saw anyone
but defendant. He never described to her seeing something that was not really there.
       As of July 20, Daniel Garza lived next door to dwelling B. Early that morning, he
heard “a whole bunch” of gunshots coming from dwelling A. Looking out his front
window, he saw a man holding some kind of rifle and a reddish blanket exit the front
door of dwelling A. The person, whom Garza pointed out to the police when they
arrived, went right across the street to dwelling B. He appeared to be walking normally.
He stood in the front yard of dwelling B some eight to 10 minutes, until the police
arrived. At one point, Garza heard him loudly say, “Open the door.” When the police
arrived, Garza heard the person say to them, “Kill me. Kill me,” or “Shoot me. Shoot
me.”
       The police received a call about the shooting at 5:25 a.m., from a neighbor who
reported hearing four to five shots fired. In addition, Lee called 911. He reported he had
been shot in the mouth and the arm, and he was hiding in the backyard of an abandoned
house because defendant, whom he named (by nickname) as the shooter, was coming.
Lee reported there were two other shooting victims still at the house, but he had run away
and was bleeding to death. Lee said defendant had three guns.



                                            10.
       Multiple officers from the Modesto Police Department and deputies from the
Stanislaus County Sheriff’s Department responded to dwelling A. Officer Murphy was
the first on scene, arriving at 5:32 a.m. Upon his arrival, he saw defendant, who matched
the description of the suspect, standing in front of dwelling B. Defendant “frantically”
told Murphy that his cousins had tried to kill him. When Murphy asked where they were,
defendant pointed to dwelling A.
       Officer Wesley arrived a short time later to find Murphy giving commands to
defendant. Defendant, who was standing in the front yard of dwelling B, a few feet from
the garage, was wearing nothing but boxer shorts. He was not holding any weapons. He
came out to the officers as ordered and was placed in handcuffs. He seemed fairly calm,
considering the circumstances.
       Defendant was placed in the back of a patrol vehicle. Wesley sought to identify
him, and defendant gave his name and date of birth. Defendant’s answers were
responsive to each question Wesley asked, and he appeared to be oriented to his current
location. However, he told Wesley, “Officer, they tried to fucking kill me,” followed
immediately by something about black magic. He appeared nervous and agitated,
although he was cooperative. All told, Wesley spent about a minute and a half with
defendant. Wesley, who had received training in determining whether someone was
under the influence, did not perform such an evaluation on defendant, and observed
nothing to suggest defendant was impaired by methamphetamine.
       Meanwhile, Officer Kroutil joined the search team that entered dwelling B based
on information the suspect had fled to that address and possibly headed into the backyard.
In clearing the garage, Kroutil discovered a Colt Sporter rifle, the civilian version of an
M16, partially wrapped in a red towel under the minivan. The rifle had a 30-round
magazine, meaning the weapon could carry 31 rounds if fully loaded. The weapon was
empty. A red substance that appeared to be blood was on the barrel and fore end of the



                                             11.
gun. A loaded Ruger revolver, from which two shots had been fired, was found in
vegetation next to the door of the garage.
       Kroutil then went back across the street to dwelling A. Inside the structure behind
the house were a deceased male — Nhia — and female —Gao — both of whom had
what appeared to be bullet holes and gross trauma from being shot at close range. There
were shell casings and a live round on the floor. There were a lot of bullet holes in the
walls, and some in the ceiling. Multiple baggies of methamphetamine were found
throughout the structure. Also found was a glass pipe used for smoking
methamphetamine.14 A blood trail exited the structure and led to Lee, who was found
several blocks away.
       Nhia’s autopsy revealed he had nine high-velocity-type gunshot wounds to the
body, two of which entered from the back.15 The range of fire for most of them was
intermediate (meaning, assuming the weapon used was a rifle, the tip of the barrel was
within two to three feet), although one of them, which was to the head and caused
massive destruction of the skull and brain, was within inches. Nhia also had three blunt
force injuries to the face that had a circular pattern consistent with a stabbing motion of a
barrel of a rifle. There were signs the same type of injury occurred to the eye, which was
collapsed but without signs of circular cuts. Two fairly intact projectiles were recovered
during the autopsy. One, which was recovered from one of the shots to the back, came
from the Ruger found in the vegetation outside the garage of dwelling B.


14     Two days after the shooting, a gun was found between the mattresses of one of the
beds in the room. It had after-market grips on it. A search of defendant’s home in
Winton turned up a photograph of defendant with a weapon in his waistband that
appeared identical to the one recovered from the bed. Another photograph seized in the
same search showed defendant with his arm around Gao’s neck. In his hand was a Ruger
revolver that was consistent with the Ruger recovered the morning of the shooting.
Defendant appeared to be pointing the gun at the photographer.
15     An AR-15 or M16, which are similar, would be considered high-velocity weapons.


                                             12.
       The cause of death was multiple gunshot wounds. Most of the damage was to
Nhia’s head and upper abdomen, and most of the wounds were potentially fatal.
Although the sequence of wounds could only be generalized, given the distance, it was
probable the wounds to the torso were received first, then the one to the head was
probably the last shot. Death would have occurred within seconds of that shot.
       Gao’s autopsy revealed five high-velocity-type gunshot wounds, two of which
entered from the back. At least one, which hit the hand and then caused massive
destruction to the flesh of the face and exited the throat, was a lethal wound. The cause
of death was multiple gunshot wounds. Death could have occurred in minutes to an hour
or slightly more.
       Blood was drawn during each autopsy. Nhia’s blood contained methamphetamine
in a concentration of 1,180 nanograms per milliliter. Gao’s blood contained
methamphetamine in a concentration of 2,660 nanograms per milliliter. Dr. Carpenter,
who performed the autopsies, explained that postmortem blood levels are “notorious for
being inaccurate as to what the level was just prior to death,” because the levels obtained
from toxicology tests vary depending on the location from which the blood was drawn.
       Blood was drawn from defendant at 10:27 a.m., approximately five hours after the
shooting.16 It contained methamphetamine in a concentration of 150 nanograms per
milliliter. Daniel Coleman, a criminalist supervisor with the Department of Justice
toxicology laboratory who analyzed defendant’s blood, explained that if a person takes a
drug over a long period of time, his or her tolerance increases and it takes more of the
drug to produce the same effect. Coleman had run thousands of blood tests to quantify


16      Detective House of the Modesto Police Department was the lead investigator for
this case. He transported defendant to the hospital to have blood drawn. Although House
did not specifically evaluate defendant for being under the influence of a controlled
substance, he believed, based on his training and experience, defendant might be under
the influence; hence, the blood draw.


                                            13.
the presence of methamphetamine. The highest level he had seen in someone still alive
was around 2,000 nanograms per milliliter. The typical range for a person who would be
considered under the influence for purposes of a violation of Health and Safety Code
section 11550 would be 300 to 700 nanograms per milliliter, although it could be lower
or higher for some individuals. A concentration of 10 to 50 nanograms per milliliter
would be the therapeutic level, meaning the level at which the drug would be prescribed;
600 to 5,000 nanograms per milliliter would be the toxic level, meaning there would be
negative effects; and a concentration of greater than 10,000 nanograms per milliliter
would be fatal.
        Coleman explained the concentration in defendant’s blood would have been as of
the time the blood was drawn. Although a number of variables affected how quickly
drugs were eliminated from a person’s body, the half-life of methamphetamine — the
amount of time it took to reduce concentration by half — typically was six to 15 hours.
There was, in essence, a “drug curve” entailing absorption, distribution, metabolism, and
elimination of the drug, that represented the drug’s concentration. Without information
concerning where the person was in the process, concentration could not be extrapolated
back in time to a point before the blood was drawn. If, however, a person consumed
methamphetamine before being taken into custody, he or she was taken into custody no
later than 5:33 a.m., his or her blood was drawn at 10:27 a.m., and the person’s
concentration was 150 nanograms per milliliter, Coleman would expect that person’s
concentration to be higher at 5:33 a.m. than at 10:27 a.m. How much higher would
depend on a number of variables. In Coleman’s opinion, it would likely be less than 300
nanograms per milliliter at 5:30 a.m. Although the person’s concentration could have
been 2,000 nanograms per milliliter or even higher at some point, it would have been
earlier than 5:30 a.m. The higher the peak concentration, the longer it would take to get
down.



                                           14.
       Carpenter placed Gao’s and Nhia’s methamphetamine concentrations in the toxic
range, which potentially could start as low as 200 nanograms per milliliter. When people
have methamphetamine levels in the toxic range, they can have “disturbing” side effects.
These can include insomnia, excessive nervousness, loss of appetite, inability to control
anger, and anything associated with hyperstimulation. The stimulation is called “fight or
flight”; the body becomes very vigilant, and in fact more vigilant than desired. At
extremely high levels, hallucination can be a side effect of methamphetamine ingestion.
Methamphetamine is not normally a hallucinogenic, however.17 Where
methamphetamine is concerned, tolerance plays a role. If a person is a heavy
methamphetamine user, his or her tolerance will be higher so it takes more of the
substance to cause the same effect. Someone taking methamphetamine for the first time
would be affected by side effects at a lower level than a continuous user of the drug.
Methamphetamine in a concentration of under 200 nanograms per milliliter would be
considered in the therapeutic range and was probably not a level likely to cause unwanted
side effects. For a hallucinogenic side effect, the level would likely have to be high in the
toxic range, although this would depend on the individual. Carpenter explained an
individual’s behavior cannot be predicted simply from his or her blood level because his
or her tolerance is not known. He would not expect someone who used
methamphetamine daily and whose level was 150 nanograms per milliliter to have side
effects.
       House interviewed defendant beginning shortly after 1:00 that afternoon.18
Defendant was mostly calm, although he became angry on occasion. He was responsive


17     Carpenter explained that “hallucinogenic” means the person develops loss of
orientation to person, place, time, and situation; and may suffer delusions and visual
and/or auditory hallucinations. It is a drug-induced psychosis that can occur on rare
occasions in certain individuals with high levels.
18     Portions of the video recording of the interview were played for the jury.


                                            15.
for the most part, although sometimes he was evasive. House found him calculating and
able to reason. He appeared to be oriented to time, place, and situation. Early in the
interview, he expressed knowledge Gao had been shot. Over the course of the interview,
defendant claimed he was angry about it, but did not appear to be emotionally upset, even
though he said Gao was “the love of his life” and Nhia was his best friend.19 He also said
he considered Lee to be a brother.
       House talked to defendant about Gao. Defendant said they had been dating
approximately three to four months and were living together. He said he had been having
some “bad vibes” from the Yang family about their dating. Defendant said he had known
the Yangs since he was a young boy. He knew them from “[t]he street” and a gang he
had been in. Defendant said he was a former member of the Orient LOCS, which had
disbanded some time earlier.
       In terms of his presence at dwelling A prior to the homicide, defendant initially
said he was forced to go there. Although he was not definitive, he mentioned Nhia,
Nhia’s uncle, and Lee in that regard.
       Defendant told House he had had sex with Gao the night before and gone to sleep,
and he had been sleeping before the shooting. House repeatedly talked to defendant
about the fact there were 17 or more gunshots from an automatic weapon and a .357 in
that small room. Defendant said he had not heard the shots. He said he did not know
why. He did say, however, that before going to sleep the night before, he had been
“[h]ella tired.”
       Defendant said he woke to find Gao and Nhia shot dead. He picked up the guns,
which he said were an AR-14 or AR-15 and a Ruger .357 revolver, and left the room. He
said the rifle belonged to a friend of his whose name he could not remember, and the .357


19    House knew Xyeem had told another detective that on the night before the
homicides, Xyeem overheard defendant asking Gao why she did not love him anymore.


                                            16.
belonged to Nhia. Defendant never claimed ownership of the guns, and repeatedly
maintained he did not hear any gunshots.
        Defendant related that after he left the room, he wanted to enter the front house to
wake Xyeem. He encountered Nhia’s sister (whose name he did not know) at the back
door of the main residence. Defendant said he was “scared to death.” He said Nhia’s
sister asked him where he thought he was going. Defendant said he was going to his
cousin’s house across the street. He was unable to tell House the names of those cousins.
Defendant told the cousins there were “bad people . . . over there” and asked them for
help.
        At some point, House talked to defendant about Lee and whether he was present
when defendant woke up. Defendant said Lee was not there. He knew, however, that
Lee had been shot, even though, to House’s knowledge nobody had told defendant this
fact. Defendant said he knew prior to the shooting that this event was going to occur.
Defendant said he counts backwards on his fingers and tends to know things when he
does that. He also said he prayed to God not to notice “these things,” but that he did see
ghosts. He said he saw things and people did not believe him when he saw things.
        During the course of the interview, which, as was typical of interrogations,
skipped around, defendant said the .357 and rifle were the property of MOD (an Asian
gang named Menace of Destruction). Defendant said Lee was a member of MOD and
had brought the weapons from Winton. Defendant said Lee kept them at defendant’s
house in Winton. Defendant said Lee had given him the .357 because he did not want
defendant to feel pressured by Lee or Nhia or two males defendant did not know, but
whom he identified as Menace of Destruction. Defendant said he began to feel
threatened by Nhia, Lee, and the two males, because they had the guns, and so he
accepted the gun.
        Defendant insisted he did not shoot or kill anyone. He related that Xyeem went
inside the main house to sleep, leaving defendant, Gao, and Nhia in Nhia’s house. Lee

                                             17.
was also there, along with the two people defendant did not know. He guessed they were
relatives of Nhia. Defendant said Xyeem was “dead asleep” and did not know anything.
Defendant had told him a few months earlier that “bad shit[]” was going to happen in the
back house. Defendant again denied killing anyone. He told House to ask Xyeem or
Lee, as they knew the people’s names. Defendant said he did not know what woke him
up, but when he woke, he saw Gao lying dead. Asked by House who he thought shot her,
defendant responded by asking whom House thought shot her, and saying House thought
it was defendant. When House asked why defendant kept saying that when House had
never said he thought defendant did it, defendant replied, “I can read right through your
mind.” Defendant implied Lee and the two unknown males shot Gao and Nhia.20
       Defendant told House that when he woke up, Lee and the two other people were
not there, although he saw people running. He did not know where Lee or the other two
went, but when he got to his cousin’s house, the gate was not closed.21
       Defendant said he took the guns to his cousin’s house across the street. He did not
know what made him take them over there. His cousins did not want to open the door for
him and told him to put the gun down. Defendant threw the rifle under the car in the
garage and the other one on the grass in the front yard outside the garage. His cousins
still would not open the door, and that was when the police came.
       House talked to defendant about him wanting Xay to take him home. According
to defendant, he told Xay that she needed to take him home. She then swore she would
take him home. She told him she had nothing to do with hurting him and had no
intention of hurting him. He said if that were true, why did she not let him go to his




20    Other than defendant’s statement, House had no evidence anyone other than Lee,
Gao, Xyeem, defendant, and Nhia were in the room that night.
21     Dwelling B had a driveway gate and possibly one at the side of the house.


                                            18.
cousin’s house? She said no. She told him to put down the guns and he did. Defendant
told her to call the police. She said Lee was hiding there in a bush.
       At some point during the interview, House informed defendant that Lee had been
shot and had identified defendant as the shooter. Defendant said this was a lie. He said
Lee was a member of an opposing gang, but defendant nevertheless had taken him in, and
tried to mentor him and keep him out of gangs. During this conversation, defendant
referred to Lee as “a little snitch.” He also said Lee had stolen some money from him,
and he called Lee an “evil, mother fucker.”
       When House told defendant he was looking at two counts of homicide, defendant
said he did not care. He also said something to the effect that those who had lied about
him would be punished seven times worse. Also at some point, House mentioned that he
told defendant two people were shot, and defendant seemed to think House was wrong.
Defendant replied that five people were shot: Gao, Nhia, Lee, and the two people
defendant did not know.
       House talked to defendant about his drug use on the night before the homicide.
Defendant said they had all used methamphetamine that night, and that he had taken “two
hits.” At first, defendant claimed someone forced him to take the drugs. Then he
admitted everybody had been smoking methamphetamine that night. When House asked
if those two hits could have affected defendant to the point he would not know what was
going on, defendant said no, he just fell asleep. Asked if that was what crystal
methamphetamine normally did to him, he again said no.
       During the interview, defendant never said he was shooting at demons. When
House talked to him about tigers, however, defendant said the Yangs were tigers and the
Xiongs were bears.22 Defendant said that was something that came from his culture and
family tradition. In the old days, Yangs were called tigers because they would turn into

22     There was a tiger on a door of Nhia’s room.


                                              19.
tigers. He did not know why Xiongs were called bears. He said it would come back to
them “seven times worser” because seven was the Yangs’ favorite number. Defendant
acknowledged he and the Yangs both were Hmong. He said most of the houses had a lot
of “crazy shit,” like stuff hanging around doors. When House said he had been inside the
house and there was a lot of cultural stuff with which he was not familiar, defendant
replied: “Culture stuff is just only one simple thing. That’s it. You don’t have things
hanging — you know what I mean? But then after — at the same time I ain’t — I’m not
going to go all that superstitious shit. You know what I mean? I’m just going to go
about it is what it is.” Asked what superstitious stuff he was talking about, defendant
replied, “I’m not going to talk about no superstitious stuff because this is real life. This
ain’t just superstitious.” House asked why, then, he was using the term “tiger” at the
scene. Defendant explained it was what they called themselves and what they
represented themselves as.
       At no time during the interview did defendant say he saw something that was not
really there. He showed different emotions, including anger. He changed his story
during the course of the interview, sometimes adding information and sometimes taking
information back. He never admitted shooting anyone, and repeatedly denied doing so.
He denied telling his cousins across the street that he had killed the tigers.
       At the end of the interview, defendant said something in a foreign language House
assumed was Hmong. House asked him what he said, but defendant would not respond.
Defendant was singing religious songs when House left the room. House looked at the
video recording later and observed defendant speaking when no one else was present.
                              Defendant’s Preoffense Conduct
       When Lee first met defendant, Lee considered him a “nice gentleman.” Lee’s
feelings changed two to three weeks before July 20. Lee had been in custody for
burglary and receiving stolen property. He was outside his house, smoking a cigarette,
when defendant came over and started smoking with him. Defendant then pulled out a

                                             20.
revolver, pointed it at Lee’s forehead from an inch or two away, and said he had found
out Lee was a snitch and did not like snitches. Defendant said Lee was a snitch because
Lee’s friends were locked up after Lee was. Gao intervened and told defendant to stop.
She vouched for Lee, whom she said was like her little brother. Defendant then told Lee
not to contact anybody, and to just associate with defendant. Defendant, who was a drug
dealer at that time, was concerned Lee might snitch on him. Lee was contacting his
probation officer as required, and defendant thought he was contacting the police about
things.
          On another occasion, Lee and his cousins were playing video poker at defendant’s
house. Defendant was not home at the time. When defendant returned from the store and
saw everyone sitting there, however, he went straight to his room and grabbed an AR-15
rifle. He then came into the living room and started pointing it at everyone. He accused
them of planning to kill him or something. He blamed Lee because the others did not like
him.
          On yet another occasion about two to three weeks before July 20, defendant
accused Lee’s cousin, Na, of stealing money from him (defendant). Defendant pulled the
same revolver he had pointed at Lee, and pointed it at Na’s leg. Defendant pulled the
trigger five times, but the gun just clicked instead of firing.23 Defendant told Na he was
lucky.
                              Defendant’s Postoffense Conduct24
          On May 31, 2010, Deputy Silva was working on the third floor of the Stanislaus
County Men’s Jail. The third floor was the “max floor.” That day, Silva was escorting
inmates to and from the shower. He had the door to defendant’s cell halfway open when
defendant ran out of the cell, carrying a spear that was at least one to two feet long, and


23        Lee did not know whether it was loaded.
24        This evidence was admitted during the People’s rebuttal case.


                                              21.
headed in the opposite direction from the showers. He ran to a cell several cells from
where he was housed, stood in front of it, and began jabbing his spear into the cell.
Inmate Jackson was in the cell at the time. Silva radioed for assistance; once another
officer arrived and both officers pointed their Tasers at defendant, defendant complied
with orders to drop the weapon and lie on the ground. When Silva handcuffed defendant,
he discovered defendant had a sharpened toothbrush attached to his left arm with elastic
from the waistband of his underwear.
       On May 2, 2013, Deputy Maxwell was working on the second floor of the jail,
where defendant was housed. Maxwell was “conducting showers.” As he opened
defendant’s cell, defendant ran in the opposite direction from the shower, holding a large
spear constructed of jail-made paper with a screw at the end. He ran several cells down
and started repeatedly thrusting it into the cell where inmate Hunter and another inmate
were housed.
       On July 19, 2013, Deputy Fay was working at the jail. At approximately 2:35
p.m., Fay was escorting inmate Salgado down the jail tier called “private singles.” When
Fay and Salgado passed defendant’s cell, defendant reached out and grabbed Salgado by
the jumpsuit. Almost simultaneously, defendant’s cellmate, inmate Phommahaxay, threw
a spear out of the cell. Although Fay pulled Salgado away, Salgado sustained a small cut
to his ear. An administrative hearing was held as a result of the incident. Defendant was
found guilty of disruptive conduct and interference with staff duties and responsibilities.
He was found not guilty of battery on an inmate, assault of an inmate, possession of
weapons, violation of inmate rules, and violation of criminal law.
       On August 28, 2013, Deputy Fittje was working on the third floor of the jail. At
approximately 5:40 that morning, he and his partner on the floor were “conducting
showers” on the private singles tier. When Fittje let defendant and his cellmate, inmate
Phommahaxay, out of their cell to walk to the showers, they ran two cells down.
Defendant was holding a jail-made spear. Defendant threw the spear through the cell

                                            22.
bars in an attempt to assault inmate Naylor. Fittje and his partner drew their Tasers,
pointed them at defendant and Phommahaxay, and ordered them back to their cell. The
two complied.
                                             II
                                    DEFENSE EVIDENCE
         Bai Xiong was defendant’s sister. She knew Gao from the time defendant started
dating her. Bai saw Gao and defendant, who were always together, every day. Bai and
defendant were very close, and Gao and defendant loved each other a lot. Bai never saw
them fight. A couple of weeks before the shooting, however, Bai started seeing
defendant less, perhaps only three times a week. He was using “a lot” of crystal
methamphetamine and separating himself from family.
         A month or so before the shootings, defendant exhibited hallucinatory behavior to
Bai. He started acting “really crazy” and talking about seeing people and seeing his best
friend who had passed away. He was scared and always thought someone was after
him.25
         Defendant was once married to a woman named Farm. Their relationship initially
was a happy one. On one occasion, Bai saw Farm and defendant in a verbal argument
that escalated to the point that Farm chased defendant with a knife. Defendant ran from
Farm. The marriage ended in divorce, which “really upset” defendant.
         As of July 20, Lee Moua was living in dwelling B. That morning, he heard the
window opening. He saw defendant carrying two guns. Moua and defendant talked for a
little over two minutes. Defendant appeared to be “abnormal.” Defendant told Moua to
call defendant’s father. He sounded anxious. There was a house cat close to his feet.
Defendant tapped the cat away with his foot and asked Moua why he was raising tigers.

25     Modesto Police Detective Pouv interviewed Bai in the course of investigating the
shootings. According to Pouv, Bai told him defendant did not have any issues with
respect to alcohol or drug abuse or mental instability.


                                             23.
Defendant did not point the gun at the cat. He did not point the gun at Moua, although he
made a motion with the gun and was yelling when he was telling Moua to call his father.
Defendant was not threatening, but rather “like he was abnormal.”
       Neng Yee Lee had been a shaman for approximately 40 years, first in Laos and
then in the United States. He explained that a shaman is someone who helps “litigate”
problems in the spirit world, i.e., when people get involved with the spirits. There are
several types of spirits in the spirit world. There are the wild spirits that lived in the wild.
There are also warrior types of spirits. If people get “tangled” with the warrior types,
they will have problems and the shaman will have to deal with them. Spirits sometimes
take animal forms, normally the form of tigers. Tiger spirits will make a family sick, and
if the shaman does not perform certain rituals, the family could possibly die. These are
not real tigers, but spirits. If someone does not have a problem, the tiger spirits will be
peaceful. If someone has a problem, however, they will not be. Shamans and even some
ordinary people are capable of seeing spirits. Neng Yee Lee himself had seen them in
Laos. They also exist in the United States.
       Mong Vang considered defendant to be one of his best friends. Vang last saw him
at defendant’s residence in Winton. Gao, Lee, and Xyeem were also present. They left
for a party in Modesto, but Vang did not go with them. He was asked to come to the
party “in a kindly way,” but did not go because he had to pick up his wife from work.
Vang heard a conversation between Lee and defendant. All defendant asked Lee was,
“Do you want to go?” It was “a kindly conversation”; everybody was joking. Defendant
did not pull a gun on Lee. Although Vang had seen defendant holding a rifle once or
twice and had seen defendant with two different types of guns, he did not see any guns
that night.
       Dr. Alex Yufik, a board-certified forensic psychologist with a law degree whose
private practice and employment consisted of assessing, evaluating, and treating
substance use disorders, including methamphetamine, and who had specific training and

                                              24.
experience with respect to methamphetamine psychosis, testified as an expert on
methamphetamine-induced psychosis. He explained that methamphetamine use causes
hyperalertness, tachycardia, excessive sweating, and a sense of euphoria. Later,
additional symptoms occur, such as loss of capacity to plan or organize behavior and
paranoia.
       Yufik explained that addiction is a chronic, progressive, and potentially fatal brain
disease. Once a person becomes addicted, it becomes a brain disorder, and the
subsequent behavior is the product of defective brain tissue. Use of methamphetamine
over a period of time actually changes the user’s brain, and the changes become worse
with prolonged use. Methamphetamine affects brain chemistry and so causes functional
impairment. It affects the portion of the brain responsible for executive functioning, i.e.,
planning, judgment, and organization.26 In some cases, the user starts to develop
psychotic symptoms, meaning he or she loses touch with reality, because
methamphetamine has “hijacked” the dopamine system. It has rewired the circuitry of
the brain and changed the neurological dopamine release/reward system. It also causes
actual structural changes that can be seen on a brain scan. The brain starts to lose its
ability to process dopamine, meaning the person is no longer able to experience normal
pleasure. He or she then seeks out the drug, because that is the only way he or she is able
to experience the dopamine and its reward system.
       Yufik explained that a drug abuser using methamphetamine will experience a
clinically significant reduction in dopamine, because the relevant part of the brain has
been damaged. In severe cases, that translates into psychotic behavior, with “psychotic”

26     Yufik gave the example of someone planning a party, which requires planning,
organization, and deliberation. The person actually has to think about the components —
how much money to budget, how many people to invite, where to hold the event, and the
like — in order to execute them. A person with an impairment in the prefrontal cortex,
which is the portion of the brain affected by methamphetamine use, will not be able to
carry out a complex series of behaviors like that.


                                             25.
meaning the person loses touch with reality. The person may start to develop paranoid
delusions, believing people are trying to hurt or kill him or her without a basis in reality.
The person sometimes begins to experience hallucinations, something the person sees,
but nobody else does. The person may see ghosts, demons, or angels that are not real. 27
He or she may also experience auditory hallucinations, i.e., the hearing of voices coming
from within the person’s own brain. The person cannot distinguish between voices
coming from the outside and within the brain, and starts to respond to the internal voices.
These are classic symptoms of methamphetamine-induced psychosis.28
       Yufik explained there can be other causes of psychosis, such as schizophrenia, the
hallmark of which is losing touch with reality. Unlike with schizophrenia, however, once
a person with methamphetamine-induced psychosis stops using the drug, the psychotic
symptoms disappear over a period of time, the length of which depends on the individual.
In the schizophrenic person, the symptoms remain. Thus, there is a correlation between
methamphetamine and methamphetamine-induced psychosis: If a person has no
methamphetamine in his or her system, he or she cannot have methamphetamine-induced
psychosis.
       Yufik testified that sometimes the hallucinations experienced as a result of
methamphetamine use result in violence, though not always. According to Yufik, there is
a very complex relationship between the amount of methamphetamine a person ingests
on a particular occasion and whether that person is going to commit violence. A recent


27      Yufik defined a hallucination as “a distortion in reality where a person sees things
that aren’t really there.” If a person said there were tigers everywhere and there were, in
fact, no tigers present, that could be evidence of a hallucination. Similarly, if a person
said, “You set these tigers upon me,” and there were, in fact, no tigers set upon that
person, that could be evidence of a hallucination.
28    Yufik admitted testifying in an earlier case that when speaking of
methamphetamine, it was more common for the person to interpret reality as threatening,
as opposed to hallucinating.


                                             26.
study showed there is no statistical significance between how much is ingested and
whether the person has psychotic symptoms. As for correlation between prolonged use
of methamphetamine and the development of psychotic symptoms, Yufik explained there
is some evidence in the research that suggests prolonged use is more likely to result in
development of psychosis, but not necessarily. A person can have prolonged use but not
develop psychotic symptoms, because not every brain processes the drugs exactly the
same and so there is an issue of individual vulnerability.
       Yufik also testified that methamphetamine is correlated with violence. He
explained the rate of violence is nine times higher in people who use methamphetamine
than in people who use other drugs. He further explained that when a person takes
methamphetamine, he or she experiences impulse control problems. Ordinarily, there is a
kind of barrier that allows a person to decide whether to delay an impulse. When that
barrier is removed, as it is when methamphetamine is used, the person simply acts on
impulse, because the control center is impaired.
       Yufik performed a forensic evaluation on defendant. He was asked to determine
whether defendant had a mental illness or a substance abuse; if so, whether that substance
abuse was related to methamphetamine; and, if so, what role methamphetamine played in
his behavior and alleged criminal actions. To this end, Yufik reviewed all the materials
defense counsel provided, which included police and witness reports, transcripts of the
witness reports, the autopsy photographs, crime scene photographs, Dr. Sims’s
psychological report, the autopsy report, the video recording of defendant’s interrogation,
and defendant’s toxicology report.29 Yufik then met with defendant in jail for five and a
half hours. During this time, Yufik conducted a clinical interview, which in addition to
observing defendant’s behavior, involved asking defendant about such things as his

29     Dr. G. Preston Sims, a forensic psychologist, was appointed by the court to
evaluate whether defendant met the criteria for legal insanity under California law. For
various reasons not pertinent to this appeal, the evaluation was not ordered until 2013.


                                            27.
background and clinical history. Yufik also conducted forensic testing, which involved
administering several psychological tests. His evaluation included consideration of
whether defendant was malingering. Yufik then reviewed the relevant literature.
       Based on all the information available to him, Yufik concluded defendant had
substance abuse disorder as that diagnosis was given in the Diagnostic and Statistical
Manual, fifth edition (DSM-V). The criteria were cravings, withdrawal symptoms, and
continuing to use the substance despite negative consequences. He also concluded, to a
reasonable degree of psychological certainty, defendant was under the influence at the
time of the offense.
       Yufik explained “malingering” means the person is deliberately trying to fake
something, usually the existence or absence of a mental illness. There are standardized
psychological tests to help determine whether someone is malingering, and Yufik
administered two of them — the Personality Assessment Inventory (PAI) and the Miller
Forensic Assessment Tool (M-FAST) — to defendant. After administering these tests,
Yufik formed the opinion defendant was not malingering during Yufik’s psychological
evaluation of him.30
       According to Yufik, methamphetamine-induced psychosis is a symptom of the
mental illness of methamphetamine abuse. To evaluate someone for methamphetamine-
induced psychosis, Yufik looked at the totality of the circumstances to see if the person
showed symptoms thereof. He also ruled out alternative hypotheses.31 In defendant’s

30    Because there was no indication defendant was fabricating a memory impairment,
Yufik did not administer the test of memory malingering (TOMM). Yufik also did not
administer the WASI or MMPI-2 tests, which were not necessarily relevant for
methamphetamine-induced psychosis.
       Yufik explained that the tests for malingering are designed to find a particular
pathology of a person. Someone could lie to the evaluator and not necessarily be labeled
a malingerer.
31    The fact someone claimed to see dead people did not necessarily mean he or she
was suffering from some type of psychosis.


                                            28.
case, Yufik also had information defendant had a severe personality disorder independent
of any methamphetamine psychosis. Impulsiveness, irresponsibility, acting without due
consideration of others, disrespecting societal customs, and manipulation were traits of
this personality disorder.
       Based on his psychological evaluation, Yufik concluded, to a reasonable degree of
psychological certainty, defendant had methamphetamine-induced psychosis during the
relevant time period surrounding the killings. To some degree, it was the combination of
the substance abuse disorder and the antisocial personality disorder that created the
methamphetamine-induced psychosis in defendant’s case.
                                      DISCUSSION
                                             I
                                 EVIDENTIARY RULINGS
       Defendant contends the trial court committed reversible error in three of its
evidentiary rulings: prohibiting Sims from testifying to his own opinion that defendant
was not malingering, admitting evidence of defendant’s postoffense bad acts (the jail
incidents), and admitting evidence of defendant’s preoffense threats and assaults with a
gun on people other than Gao. We conclude it was error to admit evidence of the
postoffense jail incidents. Although any error in admitting defendant’s preoffense acts or
precluding Sims from giving his own opinion on malingering was harmless, admission of
the postoffense incidents was prejudicial with respect to the jury’s findings of
premeditation on counts I through III.
A.     Background
       In anticipation the defense would seek to introduce evidence defendant suffered
some form of “ ‘diminished actuality’ ” and could not form the specific intent to kill, the
People moved, in limine, for admission of specific acts of conduct by defendant pursuant
to Evidence Code section 1101, subdivision (b), as impeachment or rebuttal. Although
the prosecutor did not describe the acts in his written motion, he contended they were

                                            29.
sufficiently similar to the charged offenses (in that they involved assaultive behavior) so
as to show intent, and that they were relevant to impeach or rebut defendant’s mental
state claim.32
       At the hearing on the motion, the prosecutor argued defendant had put his mental
state in issue by his methamphetamine-induced psychosis defense. The prosecutor
argued the postoffense incidents were “very relevant” to show defendant’s intent, as well
as absence of mistake; hence, they were admissible under Evidence Code section 1101,
subdivision (b). Defense counsel responded that if the defense’s argument was that
defendant was not a violent person except when he took methamphetamine, the incidents
would be relevant. That was not, however, the defense’s theory of the case. Rather, the
defense’s theory concerned what was going on in defendant’s mind specifically at the
time of the charged offenses, with the mental state evidence being offered to show the
absence of malice and premeditation. Defense counsel also asserted the evidence of the
jail incidents would be extremely prejudicial, as it showed a propensity to commit
violence; moreover, it would be cumulative in light of the uncharged preoffense acts
already admitted by the court. The prosecutor argued the proffered evidence involved the
same class of crimes as the charged offenses — assaults using weapons — so as to be
admissible to show intent, and he stated his belief it was “extremely probative.” He
interpreted the defense as being “[i]t’s the meth that made me do it.”
       The trial court ruled the evidence was admissible. It stated: “I think that the
violent nature of the acts is relevant to show that the Defendant was not acting simply as
a result of meth-induced psychosis at that one particular time [i.e., the time of the charged
offenses].” The court precluded the prosecutor from questioning defendant about the jail




32    The trial court received reports from the jail on the postoffense incidents in
connection with the hearing on whether defendant should be shackled during trial.


                                            30.
incidents unless defendant testified he was not a violent person, but gave the prosecutor
permission to introduce them in rebuttal.33
       The prosecutor subsequently cross-examined Yufik about whether, if a person
were to exhibit violent behavior after an event and no methamphetamine use was
involved, it would factor into Yufik’s opinion whether the person acted under
methamphetamine-induced psychosis at the time of the charged offense, or whether such
conduct was simply part of the individual’s personality. Yufik testified that if a person
was not abusing methamphetamine at a certain point, then methamphetamine would not
play a role in the aggression. Asked if having information the person was violent after
the event would be pertinent to his diagnosis concerning the actual event, Yufik replied it
would be pertinent only to the extent of the antisocial personality diagnosis. Yufik did
not think it would change his opinion with respect to the date of the event to learn the
person made a weapon in jail and attempted to attack people with it on a couple of
occasions, because there were many people who committed violent crimes that had
nothing to do with methamphetamine.
       Defense counsel later argued the prosecutor had already gotten into the issue of
the jail incidents in his cross-examination of Yufik, and so the incidents themselves were
cumulative and more prejudicial than probative. Counsel stated: “Again, I can’t make
this clear enough. It is not our argument that [defendant] is only violent on
meth[amphetamine]. If it were, instances of him being violent not on meth would
absolutely be relevant. [¶] It is our argument that he couldn’t form the requisite, mental
intent on this specific day with that specific stimuli.” The prosecutor argued the four
incidents would show absence of mistake or intent, and he made an offer of proof as to
what the testimony would be as to each. Defense counsel responded that the evidence


33     At the time of the ruling, it was anticipated defendant would testify. Ultimately,
he did not.


                                              31.
was very relevant to show propensity, but propensity was not a proper basis for
conviction.
       At defense counsel’s request, the court directed the prosecutor to sanitize the
testimony concerning one of the incidents, so that the jury would not learn it involved the
throwing of feces, albeit not by defendant. The court ruled the incidents were otherwise
admissible as being inconsistent with the defense defendant was not able to form intent
and also to show absence of mistake. Defense counsel clarified that his position was not
that defendant could not form an intent, but rather that defendant could not form the
requisite intent on that particular day, and so the postoffense incidents were irrelevant.
The trial court stated it understood, and warned the prosecutor that he was taking a risk
by introducing the evidence, but declined to change its ruling.
       Just prior to presentation of the testimony concerning the jail incidents, the trial
court admonished the jury: “Ladies and gentlemen of the jury, you will hear evidence
that the Defendant committed certain, uncharged offenses. You may consider this
evidence only in considering whether the Defendant formed the intent to kill on
July 20th, 2009, and whether the acts on July 20, 2009 were the product of a mistake, but
you are not to consider this evidence for any other purpose.”34 Testimony was then
presented concerning the postoffense jail incidents, as summarized in the statement of
facts, ante.
       During the course of its postevidentiary giving of instructions to the jury, the court
reminded jurors evidence had been admitted during trial for a limited purpose, and they
could consider that evidence only for that purpose. The court also instructed, specifically
with respect to the People’s presentation of evidence of uncharged offenses:

       “If you decide the Defendant committed the offenses, you may, but are not
       required to consider that evidence for the limited purpose of deciding

34     At some point, defense counsel argued in chambers that a limiting instruction
could not cure the harm caused by the jury hearing the information.


                                             32.
       whether or not the Defendant acted with the intent to kill required for
       murder in this case, or the absence of mistake.

               “In evaluating this evidence, consider the similarity, or lack of
       similarity between the uncharged offenses and the charged offenses. Do
       not consider this evidence for any other purpose, except for the limited
       purpose of determining whether the Defendant had the requisite, mental
       intent or absence of mistake at the time of the killing of Gao Her Yang and
       Nhia Yang, and the attempted murder of Lee Pao Yang. Do not conclude
       from this evidence that the Defendant has a bad character or is disposed to
       commit crime.

              “If you conclude the Defendant committed the uncharged offenses,
       that conclusion is only one factor to consider, along with all the other
       evidence. It is not sufficient, by itself, to prove that the Defendant is guilty
       of the crimes alleged in this case. The People must still prove every charge
       beyond a reasonable doubt.”
       As previously stated, the jury returned verdicts of premeditated murder on counts I
and II, and premeditated attempted murder on count III. In so doing, they rejected the
lesser offenses of second degree murder and involuntary manslaughter as to counts I
and II, and of unpremeditated attempted murder as to count III. They also necessarily
found defendant acted with express malice — the specific intent to kill — as to counts I
through III, although they were also instructed on the concept of implied malice, and that
they could consider evidence of the defendant’s voluntary intoxication in deciding
whether he acted with an intent to kill or with deliberation and premeditation.
       Prior to sentencing, defendant moved for a new trial on the ground admission of
his postoffense conduct deprived him of a fair trial, because it amounted only to
impermissible propensity evidence, was not relevant, and was more prejudicial than
probative. The People opposed the motion, essentially reiterating their argument for
admissibility under Evidence Code section 1101, subdivision (b), and contending, under
Evidence Code section 352, there was no danger of creating confusion for or misleading
the jury. The trial court denied the motion.
B.     Analysis


                                               33.
       “The general framework for the admission of evidence as it relates to
defendant[’s] challenge[] is as follows. Only relevant evidence is admissible. [Citation.]
Relevant evidence is broadly defined as that having a ‘tendency in reason to prove or
disprove any disputed fact that is of consequence’ to resolving the case. [Citation.]
Inferences drawn from the evidence must be logical and reasonable, not merely
speculative. [Citations.] All relevant evidence is admissible, unless a specific statutory
or constitutional provision bars its admission. [Citations.] If evidence is relevant and
admissible for one purpose, but inadmissible if considered for another purpose, the trial
court must admit it but, upon request, limit its proper scope and so instruct the jury.
[Citation.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)
       Insofar as is pertinent here, subdivision (a) of Evidence Code section 1101 renders
“evidence of uncharged crimes . . . inadmissible to prove the defendant had the
propensity or disposition to commit the charged crime[s]. [Citations.]” (People v.
Hendrix (2013) 214 Cal.App.4th 216, 238; accord, People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at pp. 405-406.)35 The provision “ ‘expressly prohibits the use of an
uncharged offense if the only theory of relevance is that the accused has a propensity (or
disposition) to commit the crime charged and that this propensity is circumstantial proof
that the accused behaved accordingly on the occasion of the charged offense.’
[Citation.]” (People v. Bryant, Smith and Wheeler, supra, at p. 406; accord, People v.
Gonzales (2012) 54 Cal.4th 1234, 1257.)
       “Because [Evidence Code] section 1101[, subdivision ](a)’s prohibition against
propensity evidence is ‘absolute where it applies’ [citation]” (People v. Villatoro (2012)


35      Subdivision (a) of Evidence Code section 1101 states: “Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.”


                                             34.
54 Cal.4th 1152, 1161-1162), “ ‘[t]he inference of a criminal disposition may not be used
to establish any link in the chain of logic connecting the uncharged offense with a
material fact. If no theory or relevancy can be established without this pitfall, the
evidence of the uncharged offense is simply inadmissible.’ [Citation.]” (People v. Lewis
(2001) 26 Cal.4th 334, 373.) “ ‘The reason for this rule is not that such evidence is never
relevant; to the contrary, the evidence is excluded because it has too much probative
value.’ [Citations.] ‘ “The natural and inevitable tendency” ’ is to give excessive weight
to the prior conduct and either allow it to bear too strongly on the present charge, or to
take the proof of it as justifying a conviction irrespective of guilt of the present charge.
[Citations.]” (People v. Hendrix, supra, 214 Cal.App.4th at p. 238.) The purpose of the
statutory prohibition “is to assure that a defendant is tried upon the crime charged and is
not tried upon an antisocial history. [Citation.]” (People v. Aeschlimann (1972) 28
Cal.App.3d 460, 473.)
       The prohibition codified in subdivision (a) of Evidence Code section 1101 is
qualified by subdivision (b) of the statute, which provides: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as . . . intent, preparation, . . .
knowledge, . . . absence of mistake or accident, . . .) other than his or her disposition to
commit such an act.”36 “Evidence of uncharged crimes is admissible to prove identity,
common design or plan, or intent only if the charged and uncharged crimes are
sufficiently similar to support a rational inference of identity, common design or plan, or

36     Evidence Code section 1101, subdivision (b) evidence is often described as “prior
offenses,” “prior bad acts,” or “prior misconduct.” In actuality, the conduct admitted
under the statute “need not have been prosecuted as a crime, nor is a conviction required.
[Citations.] The conduct may also have occurred after the charged events, so long as the
other requirements for admissibility are met. [Citation.] Specifically, the uncharged act
must be relevant to prove a fact at issue [citation], and its admission must not be unduly
prejudicial, confusing, or time consuming [citation].” (People v. Leon (2015) 61 Cal.4th
569, 597-598.)


                                              35.
intent. [Citation.] On appeal, the trial court’s determination of this issue, being
essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]”
(People v. Kipp (1998) 18 Cal.4th 349, 369.) “ ‘Action that transgresses the confines of
the applicable principles of law is outside the scope of discretion and we call such action
an “abuse” of discretion. [Citation.]’ [Citations.]” (People v. Hendrix, supra, 214
Cal.App.4th at p. 239.)
       In the present case, the prosecutor proffered the evidence concerning the
postoffense jail incidents as relevant to intent and absence of mistake. However,
“admission of other crimes evidence cannot be justified merely by asserting an
admissible purpose.” (People v. Guerrero (1976) 16 Cal.3d 719, 724.) “The question
remains as to ‘whether the particular evidence of defendant’s other offenses here offered
is logically relevant to prove the defendant’s intent in this case.’ [Citation.]” (People v.
Thompson (1980) 27 Cal.3d 303, 319, fn. omitted, disapproved on another ground as
stated in People v. Rowland (1992) 4 Cal.4th 238, 260.)
       The relevance of an uncharged act “depends, in part, on whether the act is
sufficiently similar to the current charges to support a rational inference of intent,
common design, identity, or other material fact. [Citation.]” (People v. Leon, supra, 61
Cal.4th at p. 598.) “The least degree of similarity (between the uncharged act and the
charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a
similar result . . . tends (increasingly with each instance) to negative accident or
inadvertence or self-defense or good faith or other innocent mental state, and tends to
establish (provisionally, at least, though not certainly) the presence of the normal, i.e.,
criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to
prove intent, the uncharged misconduct must be sufficiently similar to support the




                                              36.
inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.”
[Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)37
       Even when the evidence is viewed in the light most favorable to the trial court’s
ruling, as is appropriate when reviewing the admission of uncharged misconduct under
Evidence Code section 1101, subdivision (b) (see People v. Carter (2005) 36 Cal.4th
1114, 1148; People v. Kipp, supra, 18 Cal.4th at p. 370), it is readily apparent that the
only similarities between the charged offenses and defendant’s misconduct in jail were
that both sets of acts involved assaultive behavior and the use of some kind of weapon. If
the fact the charged and uncharged offenses involved the same classes of crimes
constituted sufficient similarity to render the uncharged offenses admissible on intent, as
the prosecutor here seems to have believed, uncharged murders would always be
admissible, at least insofar as Evidence Code section 1101, subdivision (b) was
concerned, as evidence of a defendant’s intent with respect to a charged murder. Such is
clearly not the case. (See, e.g., People v. Rogers (2013) 57 Cal.4th 296, 327-328
[examining common and distinctive features between charged murder and out-of-state
murders in reviewing trial court’s admission of uncharged murders on element of intent
as to charged murder].)
       The fact defendant engaged in assaultive behavior with a weapon while in jail
anywhere from 10 months to more than four years after the charged offenses was relevant
to defendant’s propensity/disposition for violence. Defendant’s intent or absence of
mistake during the jail incidents was not in issue. The evidence had no tendency in
reason to prove any fact of consequence concerning the charged offenses other than
propensity or disposition, or to disprove defendant’s defense.38 Under the circumstances,


37    In terms of the requisite similarity, absence of mistake is analyzed like intent.
(People v. Burnett (2003) 110 Cal.App.4th 868, 881.)
38    Significantly, Yufik testified — without contradiction — that when a person’s
psychosis is induced by methamphetamine use, the psychotic symptoms disappear over a

                                             37.
the evidence of defendant’s postoffense jail misconduct was probative solely of his
propensity to commit violent acts and/or his violent disposition. The prosecutor’s
argument for admissibility, which mischaracterized the nature and scope of the defense,
and trial court’s ruling, that the violent nature of the uncharged acts was relevant to show
defendant was not acting simply as a result of methamphetamine-induced psychosis at the
time of the charged offenses, underscore this conclusion. In essence, both the prosecutor
and the court took the position the uncharged misconduct was admissible to show
defendant was inherently violent. Such use of the evidence was categorically barred by
Evidence Code section 1101, subdivision (a). (See People v. Douglas (1990) 50 Cal.3d
468, 510, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907,
933, fn. 4.)39
       We turn to the question of prejudice. Not surprisingly, defendant claims the error
violated his federal constitutional right to due process.
       “To prove a deprivation of federal due process rights, [defendant] must satisfy a
high constitutional standard to show that the erroneous admission of evidence resulted in
an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the
evidence can its admission violate due process. Even then, the evidence must “be of such
quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances
can it be inferred that the jury must have used the evidence for an improper purpose.’
[Citation.] ‘The dispositive issue is . . . whether the trial court committed an error which
rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due


period of time once the person stops using the drug. There was no evidence defendant
continued to use methamphetamine while in jail.
39    “Subdivision (a) [of Evidence Code section 1101] does not permit a court to
balance the probative value of the evidence against its prejudicial effect.” (People v.
Thompson, supra, 27 Cal.3d at p. 317.) Accordingly, we need not assess the trial court’s
implied determination the evidence was admissible under Evidence Code section 352.
(See People v. Thompson, supra, at p. 318.)


                                             38.
process.” [Citation.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214,
229-230, fn. omitted; accord, Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918,
920.)
        Prosecutors have no right to overprove their cases or present all the evidence they
have. (People v. Williams (2009) 170 Cal.App.4th 587, 610.)40 It should have been clear
the evidence of the jail incidents was relevant only to defendant’s propensity for violence
and, hence, inadmissible, and the prosecutor should have refrained from proffering it.
Had the trial court carefully assessed the purpose and prejudicial nature of the evidence
(see People v. Tran (2011) 51 Cal.4th 1040, 1049; People v. Williams, supra, at pp. 610-
611), we are convinced it would have excluded the postoffense jail incidents.
        Nevertheless, we do not believe admission of the evidence rendered the trial as a
whole fundamentally unfair. The evidence defendant harbored the specific intent to kill
at the time he shot Gao, Nhia, and Lee was overwhelming. Evidence suggesting the
contrary was minimal. Particularly in light of the number of shots defendant fired, the
vital portions of the victims’ bodies that were struck, the fact defendant used multiple
weapons, and the evidence he had been arguing with Gao immediately before the
shooting and called Nhia by name during events, admission of defendant’s uncharged
postoffense misconduct cannot have affected the jury’s finding of express malice, and so
was harmless even under the beyond-a-reasonable-doubt standard of Chapman v.
California (1967) 386 U.S. 18, 24 that is applicable to deprivations of due process
(People v. Malone (1988) 47 Cal.3d 1, 22; compare People v. Rogers (2009) 46 Cal.4th
1136, 1167-1168 with People v. Albarran, supra, 149 Cal.App.4th at p. 232).
        Under the more lenient standard for state-law error of People v. Watson (1956) 46
Cal.2d 818, 836 (Watson), however, the error was prejudicial with respect to the jury’s

40      A prosecutor’s interest in a criminal prosecution “is not that it shall win a case, but
that justice shall be done.” (Berger v. United States (1935) 295 U.S. 78, 88; accord,
People v. Hill (1998) 17 Cal.4th 800, 820.)


                                              39.
findings of premeditation. Under Watson, the erroneous admission of evidence
constitutes reversible error “if a reasonable probability exists that the jury would have
reached a different result had [the] evidence been excluded. [Citations.]” (People v.
Whitson (1998) 17 Cal.4th 229, 251.)
       In the present case, evidence was presented concerning the effects of
methamphetamine that fell short of hallucination. These included inability to control
anger, hypervigilence, and, significantly, the effect on the portion of the brain responsible
for executive functioning — planning, judgment, and organization. There was also
evidence it was more common for a methamphetamine user to interpret reality as
threatening than to hallucinate. In addition, there was evidence defendant loved Gao and
was best friends with Nhia, and that defendant was known to point guns at people and
even pull the trigger without actually shooting anyone. The jury was instructed, in
accordance with section 29.4, that defendant’s voluntary intoxication could be considered
with respect to whether defendant acted with an intent to kill or with deliberation and
premeditation. Defense counsel argued that if jurors believed defendant knew he was
killing a human being, the most appropriate verdicts would be second degree murder.
       Given the nature and quality of the evidence, we conclude it is reasonably
probable that, had evidence of the postoffense jail incidents been excluded, at least one
juror would have failed to find, beyond a reasonable doubt, that defendant premeditated
and deliberated the shootings of Gao, Nhia, and Lee. As we recognized in People v.
Soojian (2010) 190 Cal.App.4th 491, 521, for purposes of Watson review, “a hung jury is
a more favorable result than a guilty verdict.” Accordingly, the findings of premeditation
and deliberation on counts I through III must be reversed. Because there was substantial
evidence of premeditation, however, they can be retried.
       In concluding reversal is required, we recognize the trial court twice instructed
jurors concerning the limited purpose for which they could consider the evidence of the
postoffense jail incidents. The court also instructed jurors they could not use the

                                             40.
evidence for any other purpose, and could not conclude from it that defendant had a bad
character or was disposed to commit crime.
       We normally presume jurors follow such instructions. (People v. Homick (2012)
55 Cal.4th 816, 866-867; but see People v. Robinson (2005) 37 Cal.4th 592, 626.) There
are, however, “times when the evidence is so potent or inflammatory that this
presumption is overcome.” (People v. Dallas (2008) 165 Cal.App.4th 940, 958.) This is
one of those times. The prosecutor emphasized the limited purpose for which the
evidence was admitted, but argued the jail incidents showed defendant knew what he was
doing. The evidence so powerfully demonstrated defendant’s violent character without
regard to methamphetamine use, that it would be “the essence of sophistry and lack of
realism” (People v. Gibson (1976) 56 Cal.App.3d 119, 130) to believe jurors were
capable of following the limiting instructions and not using the evidence for an improper
purpose when there was no permissible purpose for which the evidence could have been
considered (see People v. Hendrix, supra, 214 Cal.App.4th at pp. 247-248; cf. People v.
Rogers, supra, 57 Cal.4th at pp. 327-328, 332; People v. Homick, supra, 55 Cal.4th at
pp. 866-867). A finding of premeditation as to each pertinent count was virtually assured
once the evidence was so considered. Accordingly, the limiting instructions did nothing
to lessen the prejudice.
       In light of our foregoing analysis and conclusion, defendant’s remaining claims of
evidentiary error do not require extended discussion.
       Defendant first contends the trial court committed reversible error by admitting
evidence of defendant’s prior threats and assaults with a gun on persons other than Gao.
Those incidents were admitted, for the most part over defense objection on the ground
they were more prejudicial than probative, to show intent.41


41    The trial court excluded the prosecutor’s proffered inclusion of an incident in
which defendant shot an AR-15 into the air on the Fourth of July.


                                           41.
       Gao and Lee both were victims of the charged offenses. Defendant’s prior
uncharged misconduct toward them thus had probative value with respect to intent, even
though he did not kill them on any of the prior occasions. (See People v. Linkenauger
(1995) 32 Cal.App.4th 1603, 1612-1614.) In light of this fact and that the testimony
concerning the prior misconduct was no stronger or more inflammatory than that
concerning the charged offenses, defendant fails to convince us the trial court abused its
discretion in admitting the evidence. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405;
People v. Linkenauger, supra, at p. 1614.)42 Assuming, without deciding, that the trial
court erred by admitting incidents involving persons in addition to Gao and Lee, we
conclude the error was harmless, whether considered singly or cumulatively with the
error in admitting the postoffense misconduct. (See, e.g., People v. Abel (2012) 53
Cal.4th 891, 936; People v. Pearson (2012) 53 Cal.4th 306, 327; People v. Smith (2005)
35 Cal.4th 334, 373.)
       Defendant also contends the trial court erred by prohibiting Sims from testifying to
his own opinion that defendant was not malingering. Defendant says the error violated
his federal constitutional rights to present a defense, to compulsory process, and to due
process.43
       The prosecutor sought to call Sims to testify concerning a conversation Sims had
with Yufik. Defense counsel sought to ask Sims his opinion concerning whether
defendant was malingering. The prosecutor opposed the request. An Evidence Code

42      Defendant failed to object to testimony concerning Lee’s desire not to go to the
party. Given our conclusion, we need not address the Attorney General’s claim of
forfeiture with respect to this incident.
43     Defendant’s claim of prejudice is premised, in part, on his assertion Sims was a
prosecution witness and so jurors would have found him more credible than Yufik, the
defense expert. There is no evidence in the record to support defendant’s proclamation
jurors are “particularly skeptical” of experts hired by the defense. Law review articles
and other similar secondary sources cited by appellate counsel in his briefs are not
adequate substitutes.


                                            42.
section 402 hearing was held, during which Sims testified he administered tests to
defendant to determine whether defendant was malingering, and concluded defendant
was not malingering. The trial court ruled Sims could testify to the validity of the tests
Yufik performed and Yufik’s testing methodology, but not whether he believed defendant
was malingering, because the issue was whether defendant was malingering when Yufik
examined him.
       Sims subsequently testified before the jury that he had a conversation with Yufik
about defendant, in which Yufik spoke about Sims’s and Yufik’s expertise in
methamphetamine-induced psychosis. During this conversation, Sims remarked that he
(Sims) might have been called to testify in this case if he was an expert in crystal
methamphetamine abuse, which he was not. Yufik replied, “Well neither am I, really.” 44
       Sims explained that malingering is a deliberate attempt by a patient or defendant
to pretend, for the purpose of achieving some kind of gain, that he or she has a particular
mental disorder when he or she does not. Sims did not “take issue” with the tests Yufik
administered with respect to malingering, with the caveat that a more comprehensive test
was available. Sims would not have administered the TOMM in this case, because it was
irrelevant since the focus here was not memory impairment. Sims agreed someone could
be a liar without having a psychological diagnosis of malingering.
       We conclude that if the trial court erred in precluding Sims from stating his
opinion defendant was not malingering, the error did not implicate defendant’s federal
constitutional rights and was harmless under the applicable Watson standard. (See, e.g.,
People v. McNeal (2009) 46 Cal.4th 1183, 1203; People v. Cunningham (2001) 25
Cal.4th 926, 998-999; cf. Crane v. Kentucky (1986) 476 U.S. 683, 690; Chambers v.


44     Yufik denied saying this to Sims and testified he told Sims he was not an expert in
methamphetamine research. At trial, Yufik explained he was an applied scientist, not a
research scientist, and did not conduct research himself. He had, however, read quite a
lot concerning methamphetamine research.


                                             43.
Mississippi (1973) 410 U.S. 284, 302-303.) It was clear from Sims’s testimony that
Yufik administered appropriate tests on the subject (Sims even stated he could understand
why Yufik may have chosen the M-FAST over the more comprehensive test in the
interest of time and/or expedience), and nothing in Sims’s testimony suggested he
disagreed with Yufik’s conclusion on the issue. Moreover, while the prosecutor attacked
Yufik for failing to administer the TOMM, Sims’s testimony supported Yufik’s decision
in that regard. None of defendant’s statements to Yufik or to Sims were presented to the
jury, and Yufik’s diagnosis of methamphetamine-induced psychosis was based to a large
degree on materials that had nothing to do with whether defendant was malingering at the
time Yufik examined him several years after the shootings.
       Under the circumstances, while it may have been, as defendant says on appeal,
that “[e]verything depended on [defendant’s] mental defense,” the issue of malingering
ultimately was not particularly significant, especially in light of the fact Sims never
testified to a diagnosis of defendant, and both experts agreed someone could lie to them
and not be diagnosed a malingerer.45 We agree with the Attorney General that at most,
the addition of Sims’s proffered testimony would have shown defendant “was not
malingering when both doctors evaluated him for mental disorders about four months
apart over four years after the offenses. It would not have shown whether he was in a
methamphetamine-induced psychosis at the time of his offenses. It also would not have
shown that he did not necessarily lie to the doctors.”
                                             II
                                   EXCUSAL OF JUROR46




45     We reject the notion the error, if any, went to “the heart of the defense.”
46      In this and the following issue, we give a somewhat detailed background to afford
a true picture of the trial court’s rulings.


                                             44.
       Defendant next contends the trial court committed reversible error, as to all counts,
by excusing Juror No. 10 for illness. We conclude the court acted well within its
discretion.
A.     Background
       Trial was conducted Mondays through Thursdays. Prospective jurors were
informed the trial was anticipated to last until February 11, 2014, although, by the time
jury selection was completed, the trial court estimated they were about a week ahead of
schedule.
       On January 7, 2014, the trial jurors, along with three alternates, were sworn, and
the evidentiary portion of trial began. Two days later, one of the alternate jurors was
excused.
       On the morning of Thursday, January 16, 2014, the court informed the parties it
had received a message from the jury commissioner, saying Juror No. 10 could not be
there that day because of an illness in the juror’s family. The court assumed the situation
would resolve itself by Tuesday.47 As both counsel expressed a preference for having
Juror No. 10 remain on the jury so as not to “burn” another alternate so early in the
proceedings, in addition to which defendant was ill, it was decided the trial would be
continued until Tuesday, January 21, 2014. The court warned however, that if Juror
No. 10 had further difficulties the following week, it would excuse her. Defense counsel
responded, “Absolutely.”
       Near the lunch recess on Wednesday, January 22, 2014, defendant requested that
new counsel be appointed. Although the court denied the motion, it found it would be a
miscarriage of justice to proceed with trial that afternoon. Accordingly, jurors were told
to return Monday, January 27, 2014. On Monday morning, January 27, 2014, defendant
again requested new counsel. After the hearing, the trial court stated its inclination to

47     Monday was a holiday.


                                             45.
have the jury return the next day and to start then with defendant’s testimony, so that
defendant and counsel could have the afternoon to prepare.
       The next morning, Tuesday, January 28, 2014, defendant unsuccessfully attempted
to challenge the court for cause. After argument on an evidentiary matter, defendant
unexpectedly announced he had decided not to testify. Defense counsel had no additional
witnesses available for the day. He had planned to call Yufik after defendant testified,
and Yufik could not be available for the next two days because of other professional
commitments. Counsel stated he now needed to reevaluate everything to see if there
were matters he hoped to present through defendant’s testimony that he could not get in
through other witnesses. The court rejected the prosecutor’s argument that trial should
proceed regardless of whether defendant had witnesses or was unable to present a
defense, and ordered defense counsel to have Yufik present the following Monday
morning, February 3, 2014, to testify. The court stated it was granting the continuance
because the proceedings were still within the time frame the jury had been given, and
Yufik’s testimony had already been “pushed . . . back” from its original schedule.
       Although Yufik testified for virtually the entire day on Monday, February 3, 2014,
he did not complete his testimony. The next morning, Tuesday, February 4, 2014, the
court informed counsel that Juror No. 10 “called in this morning. She is sick.
Apparently has the flu, and cannot be here today. And it’s my thought that with where
we are, we need to get the trial moving. I don’t know that it’s a one-day illness. A lot of
people have the flu, laid them up for several days, and I don’t want to lose today, because
then we lose additional time, perhaps. My thought is we ought to replace her with one of
our alternates.”
       Defense counsel simply responded, “I object, submitted.” The prosecutor stated
he had no objection, because it was getting close to the end of trial, the jury had been
given a date of February 11, 2014, and there were still two alternates left. Asked the
basis of his objection, defense counsel replied: “Because we picked this jury. I think

                                            46.
that, you know, this trial has been getting on longer and longer. I think there’s no — I
don’t think there’s any rush. February 10th was what we did [sic], and in our best
estimate. Sometimes things take longer than we expect. I don’t think there’s any hurry,
or rush to miss a day or two, whatever the case may be. Today is Tuesday. At most
maybe missing probably three days. I don’t know it’ll take that long, and I don’t see any
need to remove her.”
       The court stated it did not know that Juror No. 10 was better or worse for either
side. It had no notes from jury selection, and no indication the juror was pro-prosecution
or pro-defense. The court did not see it as an issue of favoring one side or the other, and
did not believe it would impact either side. It found it more important to get the case
moving than to keep Juror No. 10, and so it ordered the name drawn of one of the
remaining alternates to replace her.
       The presentation of evidence concluded on the afternoon of Tuesday, February 4,
2014. The court and counsel spent the next day going over jury instructions outside the
jury’s presence. The court instructed the jury, and counsel gave their summations, on
Thursday, February 6, 2014. The jury retired to deliberate at approximately 3:00 that
afternoon. They returned their verdicts late the next morning.
B.     Analysis
       Defendant contends the trial court erred by “precipitously” replacing Juror
No. 10, who, he claims, “was likely favorably disposed toward [defendant’s] mental-
health defense.” He suggests the court made its decision without benefit of the relevant
facts, and acted pursuant to a “blanket rule” it had declared in advance.
       Section 1089 provides, in pertinent part: “If at any time, whether before or after
the final submission of the case to the jury, a juror . . . becomes ill, or upon other good
cause shown to the court is found to be unable to perform his or her duty, . . . the court
may order the juror to be discharged and draw the name of an alternate, who shall then



                                             47.
take a place in the jury box, and be subject to the same rules and regulations as though
the alternate juror had been selected as one of the original jurors.”
       “ ‘Once a trial court is put on notice that good cause to discharge a juror may exist,
it is the court’s duty “to make whatever inquiry is reasonably necessary” to determine
whether the juror should be discharged.’ [Citation.]” (People v. Williams (2013) 58
Cal.4th 197, 292.) “ ‘We review a trial court’s decision to discharge a juror under an
abuse of discretion standard, and will uphold such decision if the record supports the
juror’s disqualification as a demonstrable reality.’ [Citation.] ‘The demonstrable reality
test entails a more comprehensive and less deferential review’ than is typical under the
abuse of discretion standard. [Citation.] ‘It requires a showing that the court as trier of
fact did rely on evidence that, in light of the entire record, supports its conclusion . . .’
that the juror was unable to perform his or her duties. [Citation.] Although a reviewing
court will not reweigh the evidence, we ‘must be confident that the trial court’s
conclusion is manifestly supported by evidence on which the court actually relied.’
[Citation.] In reaching that conclusion, we ‘will consider not just the evidence itself, but
also the record of reasons the court provides.’ [Citation.]” (People v. Debose (2014) 59
Cal.4th 177, 200-201.) The heightened “ ‘demonstrable reality’ ” standard “ ‘more fully
reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due
process and to a fair trial by an unbiased jury.’ ” (People v. Wilson (2008) 44 Cal.4th
758, 821.)
       Applying the foregoing principles to the circumstances of the present case, we
conclude the trial court did not abuse its discretion by discharging Juror No. 10. “A juror
may be replaced if ill. [Citations.]” (People v. Roberts (1992) 2 Cal.4th 271, 324.) “In
cases of illness, a court is not obligated to call a juror into court to substantiate his or her
excuse and can rely on phone calls instead. [Citation.]” (People v. Duff (2014) 58
Cal.4th 527, 560, fn. 15.) Indeed, calling the juror into the courtroom often would be
unreasonable (see People v. Dell (1991) 232 Cal.App.3d 248, 256), and defendant does

                                               48.
not dispute that Juror No. 10 was, in fact, ill. The trial court did its duty by relaying the
content of the telephone call to counsel, discussing the matter with them on the record,
and stating its reasons for determining good cause existed to discharge the ill juror. (See
People v. Roberts, supra, 2 Cal.4th at p. 325.) “The record supports the juror’s
disqualification for illness as a demonstrable reality, and no further inquiry was required
under the circumstances.” (People v. Williams, supra, 58 Cal.4th at p. 293; see, e.g.,
People v. Duff, supra, 58 Cal.4th at pp. 559-561; People v. Smith, supra, 35 Cal.4th at
pp. 348-349 & cases cited.) “The demonstrable reality test does not demand of trial
judges confronted with sick jurors that they elicit conclusive proof of the length of future
incapacitation . . . . Nor does it demand that incapacitation exceed some preset length; in
the right circumstances, an absence of a day or less may warrant excusal. [Citations.]
Whether a juror’s illness can best be accommodated by a continuance or replacement
with an alternate is a matter committed to the trial court’s discretion.” (People v. Duff,
supra, 58 Cal.4th at pp. 560-561, fn. omitted.)
       Defendant argues the court excused Juror No. 10 due to the “blanket rule” it
declared earlier, when the juror missed a day of trial due to an illness in her family. He
claims the court’s reference to the juror being replaced if she had “further difficulties”
“plainly encompassed any further interruption . . . , not just a continuation of the current
illness in the family.” We do not read the record in such a cynical manner. It is readily
apparent, from the context of the court’s comments, that it was referring to the action it
would take if the juror was still experiencing difficulties the following week, when trial
resumed after the continuance the court was granting due to the juror’s situation. In
making its decision whether to permit further postponements in trial at the time Juror
No. 10 herself became ill, the trial court properly could and did take into account the
trial’s progress to that point, including previous delays. (See People v. Ashmus (1991) 54
Cal.3d 932, 986-987, abrogated on another ground as stated in People v. Yeoman (2003)
31 Cal.4th 93, 117.)

                                              49.
       In his briefs, defendant makes much of what, in his opinion, the trial court could or
should have done. It is true the trial court could have taken a different course of action,
such as waiting to see if Juror No. 10 could return after a couple of days and then hoping
the juror did not spread her illness to the remaining jurors. Regardless, the fact
alternative courses of action may have been available does not mean the trial court
abused its discretion by choosing the course it did. (People v. Smith, supra, 35 Cal.4th at
p. 349; People v. Bell (1998) 61 Cal.App.4th 282, 288-289.) “[W]hen, as here, a juror
has good cause to be absent from trial for an indefinite period, the trial court does not
abuse its discretion in replacing that juror with an alternate juror.” (People v. Smith,
supra, at p. 349.)
       Despite the foregoing, defendant argues the trial court’s action constituted federal
constitutional error, because Juror No. 10 “likely” was leaning toward the defense.
Defendant draws this conclusion about the juror because (1) she aspired to employment
in the field of child development, and (2) she had a “low ‘socioeconomic status.’ ”48
Defendant’s claim is based on mere surmise. That a prospective juror’s employment as a
social worker or in a similar field, or his or her socioeconomic status, might permit a
prosecutor’s exercise of a peremptory challenge against such a person to be deemed race
neutral for purposes of analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People
v. Wheeler (1978) 22 Cal.3d 258 (see, e.g., People v. Streeter (2012) 54 Cal.4th 205, 225-
226, disapproved on another ground as stated in People v. Harris (2013) 57 Cal.4th 804,
834; People v. Cox (2010) 187 Cal.App.4th 337, 347) does not make it likely he or she
favored one side or the other for purposes of the argument defendant now makes.
Moreover, that Juror No. 10 likely was not leaning toward one side or the other, despite
her career aspirations and presumed low socioeconomic status, is suggested by the fact


48    During voir dire, Juror No. 10 stated she was a part-time worker at Kohl’s and
planned to return to school. Her anticipated area of study was child development.


                                             50.
the prosecutor did not exercise a peremptory challenge against her. And, significantly,
neither party disputed the trial court’s statements in regard to the juror not being better or
worse for either side.
       Defendant says the likelihood Juror No. 10 was favorably disposed toward the
defense explained why defense counsel “strenuously opposed” removing the juror, but
we find nothing “strenuous” about defense counsel’s opposition.49 Nor is there even a
hint in the record Juror No. 10’s removal had anything to do with her views on the merits.
(Cf. U.S. v. Symington (9th Cir. 1999) 195 F.3d 1080, 1088.)
       In opposing discharge, defense counsel noted the parties had picked that jury, and
defendant now claims he was “particularly prejudiced” because the discharge of Juror
No. 10 and substitution of an alternate juror took place near the end of a long trial. It is
“commonly known,” he says, that attorneys adapt their presentations to the particular
jurors in the case. While defendant had a fundamental constitutional right to a fair trial
by an impartial jury, that right “[did] not entitle him to a jury composed of any particular
individuals. [Citations.] ‘[W]here an alternate juror, approved by defendant in voir dire,
is allowed to deliberate on the jury panel, the defendant bears a heavy burden to
demonstrate that he was somehow harmed thereby.’ [Citation.] This is so because
alternate jurors are selected at the same time, are subject to the same qualifications and
take the same oath as regular jurors. They hear the same evidence and are bound by the
same rules and instructions as the regular jurors, and until the verdict is rendered they are
at all times available and qualified to participate as regular jurors. [Citations.]” (People
v. Thomas (1990) 218 Cal.App.3d 1477, 1486; accord, People v. Abbott (1956) 47 Cal.2d
362, 372.)


49     Although, for our purposes, it is enough that defendant objected to the juror’s
removal, this is another instance in which appellate counsel has, at the very least,
overstated what the record actually shows. There is a line beyond which proper advocacy
becomes improper misrepresentation.


                                             51.
       Because section 1089 does not offend the United States Constitution, our
conclusion the trial court did not violate that statute necessarily disposes of defendant’s
claim of federal constitutional error. (People v. Williams, supra, 58 Cal.4th at p. 293.)
                                             III
                      DENIAL OF POSTTRIAL MARSDEN MOTION50
       Defendant contends he is entitled to a conditional reversal, and remand for a new
hearing on his request for substitution of appointed counsel pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden), because the court restricted its consideration of
defendant’s posttrial motion to ineffective assistance of counsel, without regard to the
alternate ground of an irreconcilable breakdown in the attorney-client relationship.
Defendant says the error also tainted the midtrial Marsden motions.
A.     Background
       Defendant initially was represented by the public defender’s office. On May 3,
2010, defendant’s first appearance following his arraignment in superior court, defendant
moved for new counsel pursuant to Marsden. The motion was denied.51
       On September 10, 2010, the deputy public defender assigned to defendant’s case
declared a possible conflict. On September 16, 2010, the public defender’s office was
relieved. On September 29, 2010, newly appointed counsel was relieved due to a conflict
(representation of a victim in the case), and a third attorney was appointed. On
October 1, 2010, that attorney was relieved due to a conflict. On October 5, 2010,
Alonzo Gradford was appointed to represent defendant.



50     Unless otherwise stated, all proceedings referenced in this section of our
discussion were presided over by the trial judge.
51     The reporter’s transcript of this Marsden motion is not contained in the record on
appeal. Defendant subsequently represented, in his motion to dismiss pursuant to section
995, that he made a Marsden motion during the preliminary hearing. That motion, which
was not heard by the trial judge, was denied.


                                             52.
       On June 8, 2012, defendant made an oral Marsden motion as to Gradford.
Defendant asserted ineffective assistance of counsel in that Gradford was unprepared for
trial and had not filed motions defendant desired, and was “sabotag[ing]” defendant’s
life. The trial court’s ruling was set for June 11, 2012.
       On June 11, 2012, defendant submitted a written Marsden motion as to Gradford.
The trial court treated it as a continuation of the prior Marsden motion. A large part of
the hearing consisted of defendant and Gradford arguing with one another. The motion
was denied, whereupon defendant spat on Gradford at least twice. At the next court
appearance, on June 14, 2012, Gradford was relieved as counsel at his own request and
defense counsel was appointed.
       On January 22, 2014, during presentation of the defense case to the jury, defendant
made an oral Marsden motion with respect to defense counsel. Defendant stated he did
not believe counsel was adequately cross-examining the witnesses or refreshing the
witnesses’ memories about their prior statements. He claimed counsel was not calling
specific witnesses to testify for the defense, and represented counsel had never talked to
him about testifying. He also asserted counsel was not arguing about evidence in
defendant’s favor that the prosecutor was hiding, or the number of interviews of
defendant without him being read his Miranda rights.52 Defendant also claimed defense
counsel worked for the school district, where his job was to make sure bad people such as
drug dealers or gangsters did not interfere; since defendant was a drug dealer and known
gang member, this created a conflict. Defendant also complained counsel had never
come and talked to him before or during trial, although counsel had sent his investigator
to talk to defendant. Defendant said those were the main reasons he felt counsel was not
representing him correctly, and he noted he had tried to tell counsel various pieces of



52     Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


                                             53.
information, but counsel “brush[ed defendant] off.” Defendant then expounded on some
of these complaints.
       At the trial court’s direction, defense counsel responded and explained why he had
not conducted certain cross-examination or impeached certain witnesses, and why he had
not called certain people to testify. He also explained why he had not gone into all of the
circumstances concerning the police interview. With respect to his school board position,
counsel stated he had stopped taking gang cases for a while because he thought there was
a direct conflict, but there never was such a conflict in this case, and defendant had
known about counsel’s school board position for over a year without ever before raising
the issue. Defense counsel conceded he had not yet had time to talk with defendant about
testifying, because he had planned to do so over the lunch recess. Counsel stated he still
wanted to have some time with defendant if given the opportunity.
       Defendant responded by giving examples of why he believed counsel was not
“doing his job the way he [said] he was.” Defense counsel responded. Defendant then
reiterated how little counsel had spoken to him about the case, and that counsel never
really advised him about or prepared him for testifying. He claimed counsel was not
fighting for him, and that it was because the court was favoring the People and not letting
defense counsel represent defendant the way counsel wanted.
       The court explained to defendant that it had watched both attorneys during trial,
and that defense counsel had a number of tactical decisions to make, and had to make
them immediately within the testimony of each witness. The court — having itself been
a member of a different school board at one point — further explained a school board
established policy and left it to the administrators to address subjects such as drug dealers
on campus. The court noted school boards did not want any crime on campuses, but that
would not prevent defense counsel from representing everyone, and, with respect to
defendant being a gang member, this was not a gang trial. The court found defense
counsel had given defendant “good representation from start to finish,” and it explained

                                             54.
to defendant why defense counsel had decided not to impeach a particular witness. It
denied the Marsden motion, but decided it would not have defendant testify that day, in
order to give him time to spend in preparation and discussing other potential witnesses
with defense counsel.
       Defense counsel warned defendant that what happened with Gradford was not
going to happen again. Defendant agreed and stated he felt respect and gratitude for
defense counsel, but simply felt counsel was not representing him effectively.
       Trial was continued to the following Monday, January 27, 2014. That morning,
defendant made another Marsden motion. Before the hearing, defense counsel
represented he and his staff spent approximately six hours with defendant over the
weekend, and some of defendant’s complaints about counsel’s performance were
different than those previously raised.
       Defendant presented a written motion for substitution of counsel in which he
alleged, by means of checking boxes on a form, that counsel failed and/or refused to
(1) confer with defendant concerning preparation of the defense, (2) communicate with
defendant, (3) subpoena witnesses favorable to the defense, (4) perform critical
investigation, (5) secure and present expert witnesses, (6) prepare and file motions critical
to the defense, (7) impeach prosecution witnesses, (8) present evidence at motion/writ
hearings critical to the defense, and (9) declare prejudice and/or conflict against
defendant, as a result of which defense counsel had taken on the role of a surrogate
prosecutor. In an attached declaration, defendant asserted counsel was not providing
adequate representation and, due to conflicts that existed between defendant and counsel,
defendant could not and would not receive adequate representation. Defendant asserted
counsel had lied to and misled defendant, particularly with respect to seeking a new judge
due to the trial court’s bias against defendant arising out of the court witnessing
defendant’s attack on Gradford. Defendant further asserted he had instructed counsel to
file a petition for writ of habeas corpus to preclude use of defendant’s prior juvenile

                                             55.
strike and other adjudications, and to file a section 995 motion to challenge the
prosecutor’s theory and to “attack” criminal intent and premeditation and gang affiliation.
Defendant also instructed counsel to file a motion challenging the prosecutor for
misconduct, bias, racism, and illegal investigations, and challenging court decisions and
all prejudicial evidence illegally obtained. Defendant complained about defense
counsel’s refusal to have another expert examine the mental health issues with respect to
defendant’s insanity plea, and asserted counsel lied to him about the sanity phase of trial
and by advising him that he would be hurting his defense if he did not withdraw his
insanity plea. Defendant also asserted defense counsel refused to subpoena witnesses
favorable to the defense, including defendant’s mother, brother, neighbor, girlfriend’s
sister, and ex-girlfriend; and refused to subpoena the prosecutor’s witnesses to testify
upon defendant’s behalf about defendant’s mental state. Defendant asserted counsel
confused the statements of a witness that was called with statements made by that
witness’s son, and failed to impeach, thoroughly cross-examine, and refresh the
memories of prosecution witnesses. Defendant claimed counsel had refused to declare
“prejudice, bias and conflict” against defendant, and so had taken on the role of a
surrogate prosecutor against defendant’s interests. Defendant claimed defense counsel
was rushed into trial by the prosecutor and court, and, because he was busy running for
school board, had little time to go over discovery and the preliminary hearing transcript
with defendant. Defendant claimed counsel apologized for not filing motions to suppress
or exclude irrelevant evidence. Defendant concluded his declaration by stating he felt
there was enough evidence to establish ineffective assistance of counsel, as well as a
conflict of interest and conflict between defendant and counsel, “to where there is no trust
nor communication between” defendant and counsel.
       At the hearing on his motion, defendant essentially read his written declaration.
He added that defense counsel had told him he (counsel) was wrong, felt the trial court



                                            56.
was biased against defendant, and thought they were not supposed to have that trial
judge.
         The court responded it would be surprised if counsel thought that, since in that
county, once a judge was assigned to a case, he or she stayed with the case to completion
unless removed for some reason. The court also denied being prejudiced against
defendant, and noted it had had defendants spit on their attorneys before. The court noted
defendant had been a gentleman since then, and observed that up until the last couple of
days, it had thought defendant was getting along fine with defense counsel. The court
stated it considered defendant “just another Defendant,” and, when defendant claimed
what happened with Gradford “plant[ed] a little seed in” the court’s mind, the court
responded, “But it doesn’t affect my rulings.”
         Defendant contended defense counsel should have moved to exclude illegally
obtained evidence, specifically his interrogation, which was done in violation of
defendant’s Miranda rights, and also the photographs of defendant throwing gang signs
and holding a gun. Defendant claimed defense counsel had lied about what motions had
been filed and heard during the afternoon defendant was not present because he was ill.
He also claimed defense counsel had told him there was nothing counsel could really do
to help defendant. Defendant stated there was no more communication and no more trust
between him and counsel, and if his Marsden motion was granted, he was going to hire a
lawyer so he could receive a fair trial and effective assistance of counsel.
         Defense counsel responded that he never told defendant he would seek a new trial
judge. Counsel also represented that he told defendant he did not believe the court was
biased, in addition to which counsel was aware of no case law that allowed a defendant’s
own misconduct in court to get that defendant a different judge. Defense counsel denied
having any discussion about filing habeas actions or motions to strike juvenile
adjudications, and asserted he was filing motions that were consistent with the rules of
evidence, counsel’s professional responsibility, and counsel’s years of experience.

                                              57.
Counsel denied lying about the insanity process, and stated what he had told defendant
and his strategy in that regard. With respect to the witnesses defendant wanted called,
counsel represented that after the last Marsden hearing, he had contacted all those
witnesses again and gone over their statements with them. Counsel summarized those
conversations, his discussion with defendant on the issue, and his strategy and reasons for
not having the persons testify. Counsel denied mixing up the source of certain statements
and explained how he knew who had made the statements and why counsel did not
refresh that person’s recollection. Counsel denied apologizing to defendant for not
having enough time to represent him due to the school board election; according to
counsel any such assertion was false.
       As for the interrogation video, counsel represented that defendant told him for the
first time the day before the current Marsden hearing, that defendant told detectives
multiple times that he wanted to see his lawyer. Counsel responded that if defendant
invoked and the interrogation proceeded and counsel missed that, defendant was correct
that he had been prejudiced by the interrogation coming before the jury. As a result,
counsel rewatched the video, and determined that at no point did defendant ask for an
attorney. Counsel also noted that he had sought to exclude the photograph of defendant
with a gun, but the court ruled it was admissible. Counsel explained that when that
happened, he accepted the court’s rulings and moved on.
       Counsel asserted that he did his best to prepare defendant to testify, but when
counsel went to see defendant, defendant berated counsel for the bulk of the time. They
did have a constructive dialogue concerning defendant’s testimony. Counsel stated he
believed their relationship was “horrible,” and that instead of his first priority being to
make objections, his first priority now was his own safety. Counsel concluded: “And
even still, Your Honor, at this stage I don’t believe that the breakdown, if there is any, of
our trust, or what have you, it’s caused by him, Your Honor. And it doesn’t give him the



                                             58.
right, from my perspective, to stop this trial. [¶] I have a duty to represent him, and I
will represent him to the best of my abilities.”
       Defendant responded by accusing defense counsel of lying and by reiterating his
original claims. The court then questioned defense counsel again about alleged confusion
between two potential witnesses. After counsel responded, the court observed that
defendant said communication and trust were broken, and that trust was not an issue in a
Marsden proceeding, but communication was. It then asked if counsel had talked to
defendant about testifying that afternoon. Counsel responded that he had; however,
defendant refused to listen as counsel was giving him advice and, when defendant asked
if he could just get up and tell his own story, they discussed the possibility of defendant
representing himself. As long as he was represented, however, counsel made the tactical
decisions.
       The court stated defendant had not shown grounds for having counsel replaced,
and that if defendant worked with counsel, defendant would receive a fair trial and
effective assistance of counsel. After further discussion about defense counsel’s decision
not to call defendant’s desired witnesses because each of them would “tank” defendant,
the court reiterated that defendant had not made the necessary showing, and so defense
counsel would continue to represent him and defendant would testify that afternoon.
Defendant then asked for two or three hours of time with defense counsel to thoroughly
prepare his testimony. The court gave him the afternoon.
       The next morning, counsel — at defendant’s instruction — sought to disqualify
the trial judge for cause. The defense asserted the court was biased because it had
witnessed defendant’s behavior toward Gradford, and because its rulings unfairly favored
the People. The court denied any bias and denied the motion.53 A short time later,


53      The matter subsequently was presented to a judge from another county who was
sitting by assignment. That judge found defendant’s challenge to be without merit.


                                             59.
defendant announced he had decided not to testify. He explained: “The reason why I
don’t want to testify is because I feel like there’s prejudicial inside this courtroom, and
bias inside this courtroom. And I’m not going — and I’m not going to get a fair trial.
And, due to this courtroom’s decisions that I’m not going to get a fair trial, and also, due
to ineffective assistance of Counsel and lack of communication, and broken down
communication, and trust I’m not . . . I refuse to . . . continue on with — with ineffective
assistance of counsel, due to bad, broken down communication and trust, and due to the
— due to the prejudicial and bias in this courtroom and this courtroom’s decisions on
ruling and et cetera.” (Sic.)
       Near the conclusion of the defense case, the court again advised defendant of his
right to testify, and asked if it was still his position that he did not wish to do so.
Defendant confirmed that decision and that it was based on the court’s perceived
unfairness and bias, ineffective assistance of counsel, and “broken down communication”
between defendant and defense counsel.
       The jury returned its verdicts on Friday, February 7, 2014. After the jurors were
released, the court and counsel discussed scheduling of possible motions and sentencing.
Defense counsel stated that if, after reviewing the transcript of the trial, he did not see the
basis for a new trial motion, he would notify the court and prosecutor in time to set a
sentencing date and notify the affected family members. Defendant then requested a
Marsden hearing. The court set the hearing for the following Monday.
       At the Marsden hearing, defendant complained that he did not know how many
grounds he needed to get the trial court to grant one of his Marsden motions. He noted
the court had refused to remove Gradford even after Gradford requested that he be
relieved, and that was when the “incident” took place in the courtroom. Defendant
asserted that after that incident, the court became even more biased against him.
Defendant noted he had filed two Marsden motions against defense counsel for “lack of
communication, no communication, broken down trust, ineffective assistance of counsel

                                               60.
due to very little knowledge about my case” and due to other reasons such as failure to
file motions, failure to object to statements made by witnesses, and failure to properly
cross-examine witnesses. Defendant asserted counsel also failed to refresh witnesses’
recollection concerning past statements, and failed and refused to call upon witnesses that
he interviewed and subpoenaed to come and testify. Defendant stated counsel’s excuse
that their statements were not good for the defense was “total bull crap,” and he asked
what the point was of interviewing and subpoenaing those witnesses without calling
them. According to defendant, counsel’s trial strategy was to help the prosecutor convict
defendant of first degree murder and do very little work on the defense. Defendant also
asserted counsel failed to address and challenge all motions granted or denied, was
ineffective and had little knowledge about the case, had had no communication with
defendant, had no understanding of trial strategy, misled and lied to defendant.
       Defendant asserted that despite his raising those issues, the court denied his prior
Marsden motions. Defendant stated he knew the court did not like him and was
prejudiced against him, and even had defendant shackled and restrained during trial.
Nevertheless, defendant asked the court to hear him out and relieve defense counsel.
Defendant claimed counsel was working as a surrogate prosecutor to obtain a first degree
murder conviction. As an example, he pointed to the prosecutor asking Yufik when he
interviewed and tested defendant, and defense counsel refusing to object when Yufik
replied that he interviewed defendant for five and a half hours at the jail. Defendant
asserted defense counsel probably coached Yufik to mention defendant was in jail, so as
to “open up a window” for the prosecutor. In addition, defendant claimed counsel did a
poor job fighting against admission of the jail incidents, and he accused the court of
prejudice and bias in admitting the evidence.
       Defendant claimed closing argument proved defense counsel was ineffective. He
criticized counsel for not arguing about the interview with House, the fact defendant was
under the influence, or that prior to the interview, defendant did not know Gao, Nhia, and

                                            61.
Lee were shot. Defendant asserted defense counsel never argued on defendant’s behalf
or introduced video clips of defendant acting crazy or talking to himself, and never
showed defendant the entire video of the interrogation. Defendant asserted defense
counsel stated in argument that Lee had defendant’s gun and was using defendant’s
phone all night, which was a false statement by counsel and showed counsel’s lack of
knowledge concerning the case. Defendant claimed defense counsel also lied to the
jurors by saying defendant did not go anywhere after the killings, when in fact defendant
went across the street and the jurors knew that. Defendant also criticized counsel for not
telling jurors defendant’s car was parked outside the house where the shootings occurred,
and that if defendant had planned the killings and wanted to escape, he would have gotten
his keys and driven off, but he did not because he was under methamphetamine-induced
psychosis and did not have the requisite mental state to plan anything nor did he intend to
kill any human being, but rather was hallucinating and thought he was fighting and
shooting demons and demon tigers. Defendant claimed counsel did not mention anything
about methamphetamine-induced psychosis.
       Defendant also claimed counsel did not argue the fact Lee never mentioned
anything prior to trial about Gao and defendant arguing about having sex. Defendant
stated he told counsel to object, because the prosecutor needed a motive for the killings
and coached Lee to say that, but defense counsel never argued the point on defendant’s
behalf. Defendant asserted defense counsel “sold [defendant] out to the jurors” and that
everything defense counsel had done showed the lack of communication and ineffective
assistance of counsel and little knowledge about the case. Defendant further claimed
that, at the end of the trial, defense counsel stated in court that he did not think defendant
had sufficient grounds for a “retrial” motion.
       Defendant concluded by stating he had the right to effective assistance of counsel.
He asserted there was no communication between him and defense counsel, and that
counsel manipulated him and did what he (counsel) wanted. Defendant claimed counsel

                                             62.
sold him out due to prejudice and bias against defendant because defendant was a
gangster and drug dealer, and part of counsel’s other job was to keep people like
defendant out of the community and school districts. Therefore, due to ineffective
assistance of counsel, no communication, conflict of interest, and conflict with counsel,
defendant asked for new counsel for “retrial” and appeal motions.
       Defense counsel responded that after the last Marsden hearing, he rewatched the
interrogation video multiple times, and at no point did defendant ask to have an attorney
present. Accordingly, there were no grounds for a suppression motion. Counsel pointed
out he had explained, in the last Marsden hearing, why he did not impeach one of the
defense witnesses, and how the witnesses defendant wanted called would not have
benefited the defense. As for lying about filing motions, counsel represented he had
given defendant copies of all written motions counsel had filed, and had informed him
about all oral motions made in court and placed on the record later in chambers. Counsel
denied apologizing to defendant and stated he had nothing to apologize for, as he had
zealously pursued defendant’s defense. Counsel agreed with defendant that some of the
court’s rulings — particularly admission of the jail incidents — were prejudicial, but
counsel tried to put on the best defense he could and preserve the issues in light of the
rulings. Counsel represented he had specifically talked to Yufik about the court’s rulings
and limitations, including the issue of jail, then Yufik let slip that he spoke to defendant
at jail. At that point, counsel felt, “That cat was out of the bag.” As far as the
interrogation interview, counsel stated he had watched the entire thing and there was
nothing that would have been helpful to defendant in front of the jury. Counsel
represented there was an approximately 15-minute segment in which defendant was
“acting a little strange” and in which defendant appeared to be masturbating. Counsel
felt that although it showed defendant was “kind of in a different place,” it did nothing to
help his case because it would have shown the jury that within hours of the death of his



                                             63.
girlfriend, he spent 10 to 15 minutes “with his hand in his groin.” That was not
something defense counsel could show to the jury, and he had informed defendant of that.
       As far as closing argument, defense counsel admitted he mistakenly said defendant
lent his gun to Lee when he meant phone. In context, however, what he meant was clear.
Defense counsel had attempted to go through the trial testimony step by step, and, as for
Lee, tried to make the jury see it was unbelievable someone who had a gun pulled on
them earlier would stay when there was an opportunity to flee.
       Defense counsel represented that he had been open and honest with defendant at
each stage of the proceedings. He conceded it hurt to hear lies said about him, but, if so
ordered, he would continue to do everything he could to represent defendant consistent
with his 15 years of experience as a lawyer and his understanding of the rules of
professional conduct.
       Given the opportunity briefly to respond, defendant accused defense counsel of
again lying. He “begg[ed]” the court for new counsel for his “motion of retrial or motion
of appeal,” and stated that all he and defense counsel did was argue, and even in trial,
there was no communication.
       The court wanted time to think about the matter and do some research on the
applicable law, and so continued the matter for its ruling. After the continuance, the
following occurred:

              “[THE COURT:] The . . . case is on for ruling on the Marsden
       hearing. Based on my research, including People v. Redd [sic], 183
       Cal.App.4th, 1137, at 1144 and 45, in order for me to substitute new
       counsel at this point, I would need to essentially find that there is a good
       argument that [defense counsel] was ineffective at trial. We’ve been
       through that several times.

              “[Defense counsel], the only concerns that have been raised had to
       do with tactical decisions. Those are certainly within the purview of
       [defense counsel]; and I don’t believe he was ineffective, so the Marsden
       will be denied.



                                             64.
             “THE DEFENDANT: But how — I mean, [defense counsel], I
       mean, he made false statements, you know, to the jurors. You know what
       I’m saying? He even lied to the jurors and . . . last week he never even
       mentioned anything about him lying to the jurors. You know what I’m
       saying? He never answered that.

              “THE COURT: I don’t think he lied to the jurors.

               “THE DEFENDANT: No. He told the jurors saying I never left the
       spot of the killing. You know? He said I got arrested at the spot of the
       killing, which it was a false statement.

              “THE COURT: That is not enough to relieve him; so he’ll represent
       you for the Motion For New Trial. When it goes on appeal, you’ll have
       new counsel.”
B.     Analysis
       Defendant contends he is entitled to a conditional reversal for a new Marsden
hearing, because the trial court restricted its consideration of defendant’s posttrial
Marsden motion to ineffective assistance of counsel, without regard to the alternate
grounds of an irreconcilable breakdown in the attorney-client relationship. Additionally,
he says, this error tainted the two midtrial Marsden motions. The Attorney General
responds that the trial court impliedly considered and rejected both grounds, so defendant
is not entitled to a remand and there was no error to taint the midtrial motions. We agree
with the Attorney General.
       “[C]riminal defendants are entitled under the Constitution to the assistance of
court-appointed counsel if they are unable to employ private counsel. However, the
decision whether to permit a defendant to discharge his appointed counsel and substitute
another attorney during the trial is within the discretion of the trial court, and a defendant
has no absolute right to more than one appointed attorney.” (Marsden, supra, 2 Cal.3d at
p. 123.)
       The applicable rules are settled. “ ‘ “When a defendant seeks to discharge his
appointed counsel and substitute another attorney, and asserts inadequate representation,
the trial court must permit the defendant to explain the basis of his contention and to

                                             65.
relate specific instances of the attorney’s inadequate performance. [Citation.] A
defendant is entitled to relief if the record clearly shows that the first appointed attorney
is not providing adequate representation [citation] or that defendant and counsel have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.” ’ [Citation.] The decision whether to grant a requested substitution is
within the discretion of the trial court; appellate courts will not find an abuse of that
discretion unless the failure to remove appointed counsel and appoint replacement
counsel would ‘substantially impair’ the defendant’s right to effective assistance of
counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681, italics added,
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
accord, People v. Taylor (2010) 48 Cal.4th 574, 599; People v. Smith (2003) 30 Cal.4th
581, 604; Marsden, supra, 2 Cal.3d at p. 123.)
       The same standard applies whether the Marsden motion is made preconviction or
postconviction. (People v. Smith (1993) 6 Cal.4th 684, 694.) “ ‘When, after trial, a
defendant asks the trial court to appoint new counsel to prepare and present a motion for
new trial on the ground of ineffective assistance of counsel, the court must conduct a
hearing to explore the reasons underlying the request. [Citations.] If the claim of
inadequacy relates to courtroom events that the trial court observed, the court will
generally be able to resolve the new trial motion without appointing new counsel for the
defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates
to matters that occurred outside the courtroom, and the defendant makes a “colorable
claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new
counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (Id. at
pp. 692-693.) Despite the use of the phrase “colorable claim,” which originated in
People v. Stewart (1985) 171 Cal.App.3d 388, 396-397 (Stewart), the California Supreme
Court has made it clear that “[a] defendant has no greater right to substitute counsel at the



                                              66.
[postconviction] stage than the [preconviction stage].” (People v. Smith, supra, at
p. 694.)54
       In the present case, defendant moved to discharge defense counsel and have new
counsel appointed to bring a motion for new trial based at least in part, presumably, on
ineffective assistance of counsel. (See People v. Lucky (1988) 45 Cal.3d 259, 281.)
Thereafter, the trial court afforded him ample opportunity to explain the reasons for his
request. (See People v. Vera (2004) 122 Cal.App.4th 970, 979.) Accordingly, we review
the denial of defendant’s motion for abuse of discretion. (People v. Memro (1995) 11
Cal.4th 786, 857.) “[D]iscretion is abused whenever the court exceeds the bounds of
reason, all of the circumstances being considered. [Citations.]” (People v. Giminez
(1975) 14 Cal.3d 68, 72.)
       We conclude the trial court’s ruling was reasonable, both with respect to counsel’s
purported inadequacies and any irreconcilable conflict between client and counsel. As it
had in the multiple previous Marsden hearings, the court patiently permitted defendant to
fully state his claims, seeking clarification and offering explanation where necessary. It
inquired of defense counsel, who responded point by point, and then solicited defendant’s
response. “To the extent there was a credibility question between defendant and counsel
at the hearing, the court was ‘entitled to accept counsel’s explanation.’ [Citation.]”
(People v. Smith, supra, 6 Cal.4th at p. 696.) “The record makes plain that counsel [was]
representing defendant diligently and well.” (People v. Memro, supra, 11 Cal.4th at
p. 857.)
       “We do not find Marsden error where complaints of counsel’s inadequacy involve
tactical disagreements. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 922.) It is
apparent from the record that defendant’s claims of inadequate representation and


54     Stewart has been disapproved to the extent its language implies a different rule
than that of Marsden. (People v. Smith, supra, 6 Cal.4th at pp. 694, 696.)


                                            67.
breakdown of the attorney-client relationship had their basis primarily in tactical
disagreements between defendant and counsel. “ ‘ “[T]actical disagreements between the
defendant and his attorney do not . . . constitute an ‘irreconcilable conflict’ ” ’ unless they
portend a complete breakdown in the attorney-client relationship. [Citations.]” (People
v. Clark (2011) 52 Cal.4th 856, 912.)
       We recognize defendant purported not to trust counsel. This did not compel the
court to appoint new counsel, however, as the California Supreme Court has stated, “If a
defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney
were sufficient to compel appointment of substitute counsel, defendants effectively
would have a veto power over any appointment, and by a process of elimination could
obtain appointment of their preferred attorneys, which is certainly not the law.
[Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1246.)
       Moreover, “ ‘[a] trial court is not required to conclude that an irreconcilable
conflict exists if the defendant has not made a sustained good faith effort to work out any
disagreements with counsel . . . .’ [Citation.]” (People v. Clark, supra, 52 Cal.4th at
p. 913.) In light of the procedural history of this case with respect to defendant’s
Marsden motions, which we have set out at length — particularly the motions’ number
and timing, and defendant’s inclusion of assertions that demonstrably either were untrue
or involved a decided skewing of the facts — the trial court reasonably could conclude
replacement of counsel was not required because any breakdown in the attorney-client
relationship that had occurred was due to defendant’s own attitude and refusal to
cooperate. (People v. Clark, supra, at p. 913; People v. Taylor, supra, 48 Cal.4th at
p. 600; see People v. Smith, supra, 30 Cal.4th at p. 607.) “[A] defendant may not force
the substitution of counsel by his own conduct that manufactures a conflict. [Citation.]”
(People v. Smith, supra, 6 Cal.4th at pp. 696-697.)
       “ ‘When a defendant chooses to be represented by professional counsel, that
counsel is “captain of the ship” and can make all but a few fundamental decisions for the

                                             68.
defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 729.) Counsel “need
not do everything the defendant may personally desire, no matter how unmeritorious or
possibly even harmful to the overall defense. Competent counsel is not required to make
all conceivable motions or to leave an exhaustive paper trail for the sake of the record.
Rather, competent counsel should realistically examine the case, the evidence, and the
issues, and pursue those avenues of defense that, to their best and reasonable professional
judgment, seem appropriate under the circumstances. [Citation.]” (People v. Freeman
(1994) 8 Cal.4th 450, 509.)
       Defense counsel did so here. Clearly, however, defendant wanted to be “captain
of the ship” without representing himself. He sought to manipulate and control both his
attorney and the proceedings, and moved to substitute his attorney or disqualify the trial
judge when things did not go his way. He was capable of cooperating with counsel, but
made the choice not to do so, and the trial court was well aware of this. The court did
everything it could to ease defendant’s dissatisfaction, distrust, and concern short of
appointing yet another attorney to represent defendant. In light of the number of
attorneys with whom defendant had expressed dissatisfaction — violently on at least one
occasion — over the course of proceedings, the trial court reasonably could conclude no
attorney would have sufficed to cure the problem. (Cf. Brown v. Craven (9th Cir. 1970)
424 F.2d 1166, 1169-1170.) The trial court was not required to countenance defendant’s
attempted manipulation of the court system, and neither are we. (See People v. Trujillo
(1984) 154 Cal.App.3d 1077, 1087; People v. Hill (1983) 148 Cal.App.3d 744, 762.)
       Defendant contends, however, that the trial court never considered whether
substitution of counsel should be granted due to an irreconcilable breakdown in the
attorney-client relationship, but rather restricted its consideration of defendant’s motion
to ineffective assistance of counsel. (See U.S. v. Adelzo-Gonzalez (9th Cir. 2001) 268
F.3d 772, 777-779.) We disagree.



                                             69.
       “ ‘It is a basic presumption indulged in by reviewing courts that the trial court is
presumed to have known and applied the correct statutory and case law in the exercise of
its official duties. [Citations.]’ [Citation.]” (People v. Nance (1991) 1 Cal.App.4th
1453, 1456; accord, Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) “ ‘ “A judgment
or order of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown. . . .” ’ [Citation.]” (People v. Wiley (1995) 9 Cal.4th 580, 592,
fn. 7; accord, People v. Carpenter (1999) 21 Cal.4th 1016, 1046.)
       Defendant’s arguments to the contrary notwithstanding, we find these
presumptions unrebutted. First, the trial court had shown, in a prior Marsden hearing,
that it was well aware an irreconcilable breakdown in the attorney-client relationship
constituted grounds for substituting counsel.
       Second, the trial court cited People v. Reed (2010) 183 Cal.App.4th 1137, 1144-
1145 (Reed), the pertinent portion of which states:

                “On this point, the Stewart court stated: ‘[I]n hearing a motion for
       new trial based on incompetence of trial counsel, the trial court must
       initially elicit and fully consider the defendant’s reasons for believing he
       was ineffectively assisted at trial. In so doing, the court must make such
       inquiries of the defendant and trial counsel as in the circumstances appear
       pertinent. If the claim is based upon acts or omissions that occurred at trial
       or the effect of which may be evaluated by what occurred at trial the court
       may rule on the motion for new trial without substituting new counsel. If,
       on the other hand, the claim of incompetence relates to acts or omissions
       that did not occur at trial and cannot fairly be evaluated by what occurred at
       trial, then, unless for other good and sufficient reason the court thereupon
       grants a new trial, the court must determine whether to substitute new
       counsel to develop the claim of incompetence. New counsel must be
       appointed when the defendant presents a colorable claim that he was
       ineffectively represented at trial; that is, if he credibly establishes to the
       satisfaction of the court the possibility that trial counsel failed to perform
       with reasonable diligence and that, as a result, a determination more
       favorable to the defendant might have resulted in the absence of counsel’s
       failings.’ (Stewart, supra, 171 Cal.App.3d at pp. 396-397.) The trial court



                                             70.
       here made no inquiry at all. That lack of inquiry constitutes reversible
       error.” (Fn. omitted.)
       In a footnote immediately following the Stewart quotation, Reed states: “In
[People v.] Smith[, supra, 6 Cal.4th 684], the Supreme Court clarified that the ‘colorable
claim’ and ‘possibility’ language in Stewart does not create a lesser postconviction
standard for substitution of counsel. The Supreme Court held ‘that the standard
expressed in Marsden and its progeny applies equally preconviction and postconviction.’
([People v.] Smith, supra, 6 Cal.4th at pp. 693-694.) ‘[S]ubstitute counsel should be
appointed when, and only when, necessary under the Marsden standard, that is whenever,
in the exercise of its discretion, the court finds that the defendant has shown that a failure
to replace the appointed attorney would substantially impair the right to assistance of
counsel [citation], or, stated slightly differently, if the record shows that the first
appointed attorney is not providing adequate representation or that the defendant and the
attorney have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citation]. This is true whenever the motion for substitute
counsel is made.’ (Id. at p. 696.)” (Reed, supra, 183 Cal.App.4th at p. 1145, fn. 14.)
       It would be speculative to assume the trial court did not read and consider this
footnote. That the court did not expressly refer to it does not change this fact; the
footnote fell within the portion of the opinion specifically cited by the court and dealt
with precisely the issue the court was researching. Even if, as defendant now claims, “[i]t
is hardly uncommon for a lower court . . . to misinterpret or entirely overlook a footnote
in an opinion,” that other courts may have done so from time to time does not establish
this trial court did so on this occasion.
       Third, defendant was seeking new counsel to bring a new trial motion based on
ineffective assistance of trial counsel. Thus, the court’s statement it would “need to
essentially find that there is a good argument that [counsel] was ineffective at trial”
(italics added) is neither an incorrect statement of the law, nor does it rule out the court’s



                                               71.
consideration of an irreconcilable breakdown as part of its assessment of the issue. As
stated ante, the California Supreme Court has decreed the irreconcilable conflict must be
such “ ‘ “that ineffective representation is likely to result.” ’ [Citation.]” (People v.
Roldan, supra, 35 Cal.4th at p. 681; accord, People v. Taylor, supra, 48 Cal.4th at p. 599;
People v. Smith, supra, 30 Cal.4th at p. 604.) Thus, the ground of an irreconcilable
breakdown in the attorney-client relationship is not wholly divorced from the ground of
ineffective assistance of counsel, particularly when the issue is raised postconviction.
       Defendant could be very volatile, and was not above using physical aggression to
get his way. The trial court was well aware of this. While it may have been preferable
for it to rule expressly on both the ineffective assistance of counsel and the irreconcilable
conflict grounds for substitution of counsel, we cannot fault it, under the circumstances,
of choosing not to anger defendant further by accusing him directly of manipulation or
expressly placing on him the responsibility for his conflict with defense counsel.
       We reject defendant’s claim the trial court erred by failing to consider the
irreconcilable breakdown basis for a substitution of counsel. The record shows the court
was aware of that ground, and does not refute the conclusion the court implicitly
considered and rejected it.
                                              IV
                                         COUNT IV
       The complaint filed against defendant on July 22, 2009, did not contain a charge in
which Xay was alleged as the victim. After Xay testified at the preliminary hearing and
recounted the incident in which defendant pointed a handgun at her immediately
following the shootings, however, the People filed an information that added count IV, an
assault charge with respect to Xay. In both the original and first amended informations
(both of which were signed by the trial prosecutor), the cover sheet (which gave the code
sections for the charges and enhancements) described this count as assault with a deadly



                                              72.
weapon in violation of section 245, subdivision (a)(1), with an enhancement pursuant to
section 12022.5, subdivision (a). In the body of both informations, this count read:

              “COUNT IV: The said TOU VANG XIONG on or about the 20th
       day of July, 2009, at and in the County of Stanislaus, State of California,
       and prior to the filing of this Information, did willfully, unlawfully, and
       feloniously commit an assault with a deadly weapon, to wit, GUN, upon
       XAY YANG, a human being.

              “ENHANCEMENT: During the commission of the above said
       offense, defendant personally used a firearm, in violation of section
       12022.5(a) of the California Penal Code.”55
       At the time the charged offenses were committed, section 245 provided, in
pertinent part:

             “(a)(1) Any person who commits an assault upon the person of
       another with a deadly weapon or instrument other than a firearm or by any
       means of force likely to produce great bodily injury shall be punished by
       imprisonment in the state prison for two, three, or four years . . . .

              “(2) Any person who commits an assault upon the person of another
       with a firearm shall be punished by imprisonment in the state prison for
       two, three, or four years . . . .” (Italics added.)
       Defendant contends that by referencing subdivision (a)(1) of section 245, count IV
of the information charged him with assault with a deadly weapon other than a firearm.56
He says his conviction on this count must now be reversed, because there was no
substantial evidence he used a weapon other than a firearm. To allow the conviction to
stand, he says, would permit him to be convicted of a charge on which he was never tried.
The Attorney General perceives the error as a clerical one, and argues we should amend

55     Because the information and first amended information are the same in this regard,
we refer to them both as “the information.”
56     Assault with a deadly weapon other than a firearm and assault with a firearm have
been proscribed by different subdivisions of section 245 since 1982. (§ 245, as amended
by Stats. 1982, ch. 136, § 1, p. 437, eff. Mar. 26, 1982, operative Apr. 25, 1982; see
Historical and Statutory Notes, 47F West’s Ann. Pen. Code (2014 ed.) foll. § 245,
p. 182.)


                                           73.
the conviction to assault with a firearm under subdivision (a)(2) of section 245. We
conclude defendant is not entitled to reversal of his conviction.
       Defendant’s basic legal proposition is correct: “A person cannot be convicted of
an offense, not charged against him in the indictment or information, whether or not there
was evidence at trial to show that he committed the offense. [Citation.]” (People v.
Puckett (1975) 44 Cal.App.3d 607, 611; see Cole v. Arkansas (1948) 333 U.S. 196, 201
[“It is as much a violation of due process to send an accused to prison following
conviction of a charge on which he was never tried as it would be to convict him upon a
charge that was never made.”].)
       From there, however, defendant’s argument flounders, because it proceeds from
the proposition assault with a deadly weapon (§ 245, subd. (a)(1)) and assault with a
firearm (id., subd. (a)(2)) are “mutually exclusive” and “two separate crimes.” The
California Supreme Court rebuffed this argument in People v. Milward (2011) 52 Cal.4th
580, 584, 585. Although the court declined to decide whether the offenses should be
considered as constituting a single crime — aggravated assault — for determining the
lesser included offenses of the crime of aggravated assault by a life prisoner (id. at p. 586;
see § 4500), it noted that prior to the 1982 amendments to section 245, the Legislature
made no distinction between aggravated assaults committed with firearms and those
committed by other means. In amending section 245, subdivision (a) to create
subparagraphs (1) and (2), “the Legislature’s apparent purpose was to require a minimum
punishment of six months’ imprisonment in county jail for aggravated assaults committed
with a firearm (§ 245, subd. (a)(2)), but not for aggravated assaults committed by other
means (§ 245, subd. (a)(1)).” (People v. Milward, supra, at p. 585.) Significant for our
purposes is the high court’s observation that “the statutory phrase ‘other than a firearm’ is
not an element of section 245’s subdivision (a)(1), which punishes an assault with a
deadly weapon ‘other than a firearm’ or by means likely to inflict great bodily injury; a



                                             74.
defendant who commits an assault with a firearm violates that subdivision.” (Id. at
p. 587, original italics omitted, italics added.)
       In People v. Maldonado (2005) 134 Cal.App.4th 627, the issue before the
appellate court was whether assault with a firearm was a predicate offense, under section
186.22, subdivision (e), for the gang enhancement (id., subd. (b)(1)). In this regard,
subdivision (e)(1) of section 186.22 listed, as a predicate offense, assault with a deadly
weapon or by means of force likely to produce great bodily injury, “as defined in Section
245.” The court concluded assault with a firearm fell within the purview of section
186.22, subdivision (e)(1), noting “[s]ection 245 treats assault with a firearm as an
aggravated subset of assault with a deadly weapon.” (People v. Maldonado, supra, at
p. 634.) As a result, the court concluded, “[I]n the scheme of section 245, assaults with a
firearm are treated as an especially dangerous type of assault with a deadly weapon,
entitled to greater punishment. Hence, section 186.22, subdivision (e)(1), which includes
‘assault with a deadly weapon . . . as defined in Section 245,’ necessarily encompasses
assault with a firearm under section 245, subdivision (a)(2). In other words, ‘as defined
in Section 245,’ assault with a deadly weapon broadly covers the subset of assault with a
firearm.” (Id. at p. 635, fn. omitted; see People v. Myers (2007) 148 Cal.App.4th 546,
554 [guilty plea in Arizona to charge of assaulting victim with deadly weapon or
dangerous instrument, to wit, handgun, satisfies elements of assault with firearm under
§ 245, subd. (a)(2)].)
       There is some support for the notion the two subparagraphs of section 245,
subdivision (a) state distinct crimes. (See People v. Gonzalez (2014) 60 Cal.4th 533, 535
[oral copulation of unconscious person (§ 288a, subd. (f)) and oral copulation of
intoxicated person (id., subd. (i)) constitute different offenses]; People v. Aguilar (1997)
16 Cal.4th 1023, 1033 [if weapon clause of § 245, subd. (a)(1) included assault with
firearm, § 245, subd. (a)(2) would be rendered “a redundancy, a result [courts] strive to
avoid under recognized canons of construction”]; but see People v. Moore (1986) 178

                                              75.
Cal.App.3d 898, 903-904 [prosecution not precluded, by more specific provisions of
§ 245, subd. (a)(2), from charging assault with firearm under § 245, subd. (a)(1) if it so
elects], disapproved on another ground in People v. Ledesma (1997) 16 Cal.4th 90, 101,
fn. 5.) Even if we were to so conclude, however, we would reject defendant’s claim his
conviction on count IV must be reversed.
       The information in the present case charged defendant with “willfully, unlawfully,
and feloniously commit[ting] an assault with a deadly weapon, to wit, GUN,” on Xay. It
was only the caption of the pleading, which summarized the charges, that mentioned
subdivision (a)(1) of section 245.
       “Notice of the specific charge against a defendant is the constitutional right of the
accused. [Citation.] The defendant is entitled to be apprised with reasonable certainty of
the nature of the crime charged so that he may prepare his defense and plead jeopardy in
future prosecutions. [Citation.]” (People v. Puckett, supra, 44 Cal.App.3d at p. 611;
accord, Cole v. Arkansas, supra, 333 U.S. at p. 201.) Nevertheless, “[a]n information is
formally sufficient if, in substance, it charges the defendant with the commission of a
public offense in words ‘sufficient to give the accused notice of the offense of which he is
accused.’ [Citation.] To be material, a variance between the information and proof must
be ‘of such a substantive character as to mislead the accused in preparing his defense, or
. . . likely to place him in second jeopardy for the same offense.’ [Citations.]” (People v.
Braddock (1953) 41 Cal.2d 794, 799.) “[A] valid accusatory pleading need not specify
by number the statute under which the accused is being charged. [Citations.]” (People v.
Thomas (1987) 43 Cal.3d 818, 826.) Even a reference to the wrong statute may be
viewed as surplusage and of no consequence. (Ibid.; People v. Schueren (1973) 10
Cal.3d 553, 558; People v. Reddick (1959) 176 Cal.App.2d 806, 820; see People v.
Jackson (1961) 191 Cal.App.2d 296, 302-303.)
       Defendant was on notice he was being charged with assault with a deadly weapon,
to wit, a gun, and, by virtue of the section 12022.5, subdivision (a) enhancement

                                            76.
allegation, that he had to be prepared to defend against the prosecution’s theory he
personally used a firearm during the assault. Assault with a deadly weapon where the
weapon is a gun and assault with a firearm have the same elements. (Compare People v.
Cook (2001) 91 Cal.App.4th 910, 920 with People v. Elwell (1988) 206 Cal.App.3d 171,
177 & People v. Roshid (1961) 191 Cal.App.2d 692, 693.) “A gun capable of being fired
is a deadly weapon. [Citation.]” (People v. Roshid, supra, at p. 694; accord, People v.
Sandoval (1963) 222 Cal.App.2d 348, 351.) “Defendant did not demur to the
information as he might have done if he believed that this language failed to state the
offense adequately to give him notice. [Citations.] The well-established rule is that
failure to demur on the ground that a charging allegation is not sufficiently definite
waives any objection to the sufficiency of the information. [Citations.]” (People v. Holt
(1997) 15 Cal.4th 619, 672.)
       Defendant would have us believe he was misled to his detriment by being placed
on notice “not that he would be tried for assault with a firearm, but rather that he would
be tried for assault by means of force likely to produce great bodily injury, using a
firearm as the instrument of the potential great bodily injury.” Such an interpretation of
the charging language strains credulity, and we will not countenance it. It is an
“established rule” that “ ‘[n]otice of the particular circumstances of the offense is given
not by detailed pleading but by the transcript of the evidence before the committing
magistrate . . . .’ [Citations.]” (People v. Holt, supra, 15 Cal.4th at p. 672.) As
previously described, Xay testified at the preliminary hearing to the conduct giving rise to
count IV. Under the circumstances, “[a]ssuming the information was ambiguous,
defendant could not have been misled. The preliminary hearing evidence gave defendant
ample notice of the charge against which he was required to defend. [Citation.]” (People




                                             77.
v. Price (1991) 1 Cal.4th 324, 398; accord, People v. Griggs (1989) 216 Cal.App.3d 734,
743; see People v. Peyton (2009) 176 Cal.App.4th 642, 659.)57
       Here, the information charged defendant with assaulting Xay with a gun. The
undisputed evidence showed an assault with a firearm on Xay. Defendant’s defense to
that charge was the same as with respect to the other charges, and the record suggests no
way in which a different defense could have been proffered in that regard. The jury was
instructed on the law consistent with assault with a firearm and on all elements of that
offense pursuant to CALCRIM No. 875, the prosecutor argued defendant assaulted Xay
with a firearm, and the jury expressly found defendant guilty of assault with a deadly
weapon “as charged in Count IV of the information” and that he personally used a
firearm during the commission of that offense.
       “When a jury finds guilt after being instructed on all elements of the charged
crime . . . , the jury has made all the findings that due process requires. If a jury
instruction requires the jury to find guilt on the elements of the charged crime, a
defendant will have had a ‘meaningful opportunity to defend’ against the charge.
[Citation.]” (Musacchio v. United States (2016) 577 U.S. ___ [136 S.Ct. 709, 715].)
       “ ‘ “ ‘A verdict is to be given a reasonable intendment and be construed in light of
the issues submitted to the jury and the instructions of the court.’ [Citations.]”
[Citations.] “The form of a verdict is immaterial provided the intention to convict of the
crime charged is unmistakably expressed. [Citation.]” [Citation.] “[T]echnical defects
in a verdict may be disregarded if the jury’s intent to convict of a specified offense within
the charges is unmistakably clear, and the accused’s substantial rights suffered no
prejudice. [Citations.]” [Citation.]’ [Citations.]” (People v. Jones (2014) 230
Cal.App.4th 373, 378-379.)

57     People v. Mancebo (2002) 27 Cal.4th 735, 739, 749, on which defendant relies,
deals with a completely different subject — the pleading and proof requirements of the
One Strike law — and so does not assist him.


                                              78.
       Here, defendant was charged with assaulting Xay with a firearm. The jury’s intent
to convict of that crime was clear. Defendant’s substantial rights suffered no prejudice
from the designation of subdivision (a)(1) instead of (a)(2) of section 245 in the
information or on the verdict. Accordingly, we disregard the technical defect in the
verdict (see, e.g., People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998)
18 Cal.4th 297, 331; People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1274;
People v. Reddick, supra, 176 Cal.App.2d at p. 821) and order correction of the
corresponding clerical error in the abstract of judgment.
                                       DISPOSITION
       Defendant’s convictions of first degree murder on counts I and II and premeditated
attempted murder on count III are reversed unless the People accept a reduction of the
convictions to second degree murder on counts I and II and unpremeditated attempted
murder on count III. After the filing of the remittitur in the trial court, the People shall
have 30 days in which to file a written election to retry defendant. If they do not timely
file such an election, and/or do not bring defendant to retrial on the premeditation and
deliberation elements within the time set forth in Penal Code section 1382,
subdivision (a)(2) — 60 days unless waived by defendant — the trial court shall proceed
as if the remittitur constituted a modification of the judgment to reflect convictions of
second degree murder on counts I and II and unpremeditated attempted murder on
count III, and shall resentence defendant accordingly. Whether following retrial or
resentencing, the abstract of judgment shall show defendant was convicted, in count IV,
of violating Penal Code section 245, subdivision (a)(2), assault with a firearm.
       In all other respects, the judgment is affirmed.




                                              79.
                              _____________________
                                        DETJEN, J.
WE CONCUR:


_____________________
KANE, Acting P.J.


_____________________
PEÑA, J.




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