Filed 6/4/14 P. v. Hosley 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                         F065500

                                                                                (Super. Ct. No. 1251412)
                   v.

DASHEME KAREME HOSLEY                                                    ORDER MODIFYING OPINION AND
                                                                                 DENYING REHEARING,
         Defendant and Appellant.
                                                                             [NO CHANGE IN JUDGMENT]



THE COURT:
         It is ordered that the opinion filed herein on May 20, 2014, be modified as follows:
         1. At the end of the first full paragraph on page 37, after the sentence ending
“People v. Samaniego, supra, 172 Cal.App.4th at p. 1172),” add as footnote 26 the
following footnote, which will require renumbering of all subsequent footnotes:
         26
                Because we find no prejudice under any standard, we need not
         address defendant’s claim that any forfeiture of the issue constituted
         ineffective assistance of counsel.
    There is no change in the judgment.
    Appellant’s petition for rehearing is denied.

                                                    _____________________
                                                               DETJEN, J.


WE CONCUR:


_____________________
CORNELL, Acting P.J.


_____________________
GOMES, J.




                                          2.
Filed 5/20/14 (unmodified version)




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065500
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1251412)
                   v.

DASHEME KAREME HOSLEY,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy
Ashley, Judge.
         Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
       Dasheme Kareme Hosley (defendant) stands convicted, following a jury trial, of
premeditated murder, during the commission of which he personally used a firearm, and
personally and intentionally discharged a firearm, proximately causing death. (Pen.
Code, §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d).)1 Following a bifurcated
court trial, defendant was found to have suffered a prior serious felony conviction that
was also a strike (§ 667, subds. (a) & (d)) and to have served a prior prison term (§ 667.5,
subd. (b)). On July 10, 2012, defendant was sentenced to a total unstayed term of five
years plus 75 years to life in prison and ordered to pay various fees and fines.
       Defendant now raises multiple claims of prosecutorial and trial court error. We
hold: (1) The prosecutor did not commit prejudicial misconduct; (2) The trial court did
not commit prejudicial instructional error; (3) Defendant was not prejudiced by the
security measures employed during his trial testimony; (4) There was no cumulative
prejudice; and (5) The trial court did not abuse its discretion by denying defendant’s
postverdict motion for new counsel. Accordingly, we affirm.
                                         FACTS2
                                              I
                                PROSECUTION EVIDENCE
       As of 2008, defendant’s mother, Carol Harris, was married to Karl Johnson. The
couple resided at a house in the 2900 block of Lincoln Oak in Modesto. Harris was the
pastor of a church in Oakland. She often discussed her own life story in her preaching.
According to what she said, she overcame a history of drug use and prostitution. During

1      Further statutory references are to the Penal Code unless otherwise stated.
        Carol Harris was jointly charged with defendant, but their trials were severed. The
information also charged Deleon Hosley and Alisia Brown with being accessories (§ 32),
a charge to which they pled guilty and nolo contendere, respectively. Only defendant’s
case is before us on this appeal.
2      Unspecified references to dates in the statement of facts are to dates in 2008.



                                             2.
that period of her life, which was when she was raising defendant, she shot and killed her
husband (defendant’s father) to protect herself from domestic violence. The shooting
took place in front of her children, and was very traumatic for them.
       On the night of August 29 to August 30, Robert Barnes, Harris, Johnson, Harris’s
best friend, and Harris’s mother, drove from Oakland to the Modesto house. Once there,
they started to play dominoes. At first, the mood was good. As time passed, however,
tension developed between Harris and Johnson.
       Barnes spent about an hour and a half on the front porch, talking on a cell phone.
During that time, he heard Harris and Johnson arguing. At one point, Johnson came
outside and asked Barnes for a cigarette. Barnes could tell he was upset. Johnson then
went back inside. Barnes heard Harris say something like, “You want to challenge me?”
Then she turned over a coffee table in the front living room and threw it at Johnson.
Johnson tried to block himself from the table and candlestick holder coming at him, then
he grabbed Harris with both hands on her upper bicep area near the shoulders and sat her
forcefully down on the couch in the living room. She got up swinging with closed fists,
and Johnson did it again. He was saying, “Is this what you want me to do? Is this what
you want me to do?”
       Barnes came inside and asked Johnson what was going on. Johnson never swung
at or hit Harris in Barnes’s presence, but merely sat her on the couch.3 Johnson asked for


3       Barnes had seen Harris and Johnson argue before that night, but it had never been
so heated. During those arguments, he never saw either hit the other. However,
Johnson’s teenage daughter and her younger brother both recalled an occasion on which
Harris slapped and punched Johnson during an argument. Johnson did not hit back.
Harris sometimes angrily told Johnson that she had two sons who could take care of him,
or that she was a woman and did not need to deal with it because she had two sons who
could deal with him. Most of the time, Johnson ignored such statements. Defendant and
Johnson appeared to get along all right, although Johnson’s daughter had seen defendant
act violently toward someone other than Johnson.



                                            3.
the keys to his car so he could leave. Harris refused.4
       Harris went upstairs to her room. A short time later, Barnes heard her on her cell
phone, saying she was “this little bitty old woman and this big old man is over here
beating on her.” She said she was afraid for her life.5 At some point, Harris told
Johnson, “That’s all right,” “I called my son, and he’ll handle this.” Johnson responded,
“I don’t give a fuck,” and “Call your mother fucking son. I’m waiting.” Johnson, who
did not act scared of defendant, asked, “What was he gonna do, shoot me? I’ll shoot him
back. What’s he gonna do, stab me? I’ll stab him back. But he ain’t gonna beat my
mother fucking ass.” Johnson had a box cutter tucked in his shorts.
       Barnes heard Harris speaking on the phone to Alfred Newton, a close family
friend. Harris kept saying, “I know. I know[,]” and that she could not get on “his” line
because the phone was off. Barnes thought defendant was coming to the house.
Concerned about the potential for violence, Barnes told Harris she had “fucked up” and
needed to get on the phone and tell defendant not to come. She said she knew, and she
tried to call, but defendant’s phone was off.6

4      Although Johnson did not use drugs on a constant basis, he sometimes went on
crack binges. At those times, he would take his car and leave for days at a time. That car
was Harris’s sole transportation. Without it, she could not get to her church in the Bay
Area. She was the founder, pastor, and bishop of the church, and so needed to get there
every day. It angered her when Johnson took off on a binge, leaving her unable to get to
the church.
5      Barnes estimated Harris was between five feet seven and nine inches tall and 175
to 180 pounds. He told Detective Munoz that he heard Harris tell defendant that Johnson
had slapped her around and she was scared for her life. When defendant asked if Harris
wanted him to come over, Harris replied, “Yeah, come over here and handle this
[epithet].”
6      Newton had several telephone conversations with Harris that night. The first,
which took place before 2:00 a.m., concerned whether he was going to get together with
her and Johnson. It sounded like she and Johnson were partying and having fun.
      The second conversation took place after 2:00 a.m. Harris said she and Johnson
were having a dispute, and that Johnson “jumped on” her. When Newton did not respond


                                             4.
       In 2008, Desamona Crowder was involved in an on-again, off-again relationship
with defendant, with whom she had a child. Defendant and Alisia Brown stayed in a
residence in San Leandro, and Crowder also stayed there a few times.7
       On the night of August 29 to 30, defendant, Crowder, Crowder’s daughter, Brown,
and Lamar Vincent were “[h]anging out” at the San Leandro residence. Everyone except
Brown was ingesting cocaine. At some point during the evening (Crowder believed it
was sometime between 10:00 p.m. and 1:00 a.m.), defendant received a call from Harris.
He told Crowder that Harris was crying and said she and Johnson had gotten into an
argument.8
       After the telephone call, defendant kept trying to call Harris back, but he was
unable to reach her. He grew irritated and frustrated, wondering why she called, crying,
and suddenly could not answer her phone. About 30 minutes after Harris called,
defendant told Crowder he wanted to go to Modesto to check on her. Crowder did not
have a car, so she texted George Willoughby that “something went down.” She added
“911” to indicate it was an emergency.


in the manner she wanted, she said, “Let me call my son.” A short time later, defendant
contacted Newton and asked him to see what was going on. Newton refused to get
involved and suggested defendant not go, either, because Harris tended to exaggerate.
       Newton called the Harris-Johnson house back to talk to Johnson. Johnson assured
Newton that he had not hit Harris. Harris subsequently called Newton back to say
Johnson had not really jumped on her; rather, she had just gotten scared. Newton told her
she needed to call defendant back and tell him not to come. As soon as he and Harris
hung up, Newton attempted to telephone defendant himself. He tried two or three times,
but was unable to make contact.
7     Crowder was originally charged with murder in this case, but entered into an
agreement with the district attorney’s office. In return for giving a full statement to law
enforcement and testifying, she would be allowed to plead guilty to being an accessory
and would receive 365 days in jail and three years of probation.
8      Crowder had been acquainted with Johnson for four or five years and had never
seen him be violent or heard him raise his voice to anyone.



                                             5.
       Willoughby left his job sometime after 1:00 a.m. and drove to the San Leandro
residence.9 Defendant told him that Johnson had hit Harris. When defendant, Crowder,
and Vincent got into his car, Willoughby assumed they were going to the house to get
Johnson “off” Harris, although he had never known Johnson to be violent and had only
rarely heard him raise his voice to Harris. He knew Harris had shot defendant’s father in
front of defendant, and that it had had a profound effect on defendant, who was extremely
protective of Harris.
       During the drive to Modesto, those in the car were upset Harris had been hit.
Crowder saw defendant spin the cylinder of, and dry fire, a silver revolver. Willoughby
saw defendant going through different caliber bullets he had in his sock and putting about
six in the gun. Willoughby thought they were going to fight Johnson and defendant
would be the first person to hit him, but believed defendant was just going to use the gun
to scare Johnson.
       At some point after Harris telephoned him, but (according to Crowder’s
recollection) before the shooting, defendant said to Crowder, “Why did she call me and
tell me this? What did she think I was going to do?” Crowder also recalled someone in
the car receiving a call from Harris, saying that things had worked out and it was “just a
gin night.” In addition, defendant received a call from Barnes, who tried to convince
defendant that everything was okay and not to come to Modesto.10
       Willoughby, a fast driver, estimated it took about 30 minutes to get from San
Leandro to Modesto. When they arrived at Harris’s house, Willoughby parked at the


9       Willoughby’s grandfather had been married to Harris at one point. Willoughby
initially was charged with murder in connection with this case, but entered into an
agreement to testify in return for which he would plead guilty to being an accessory and
receive 365 days in jail and three years of probation.
10    According to Barnes, he tried to contact defendant several times, but was
unsuccessful.



                                             6.
curb in front of the house. According to Crowder, the house was dark. According to
Willoughby, however, the front porch and stairwell lights were on.
        According to Barnes, he, Johnson, Harris, and Harris’s friend were upstairs in the
master bedroom, discussing a class Harris had to teach at church the next day, when
Johnson said it sounded like someone was at the door. Harris told Johnson, “You bad.
Go answer it.” Johnson went to answer the door, and Harris left the room 10 or 20
seconds later. Barnes went to the window and called down, “It’s not that serious, you
know, you need [to] go home.”
        When Johnson opened the door, Barnes heard him say, “No, no, no.” Barnes
heard a gunshot and saw a flash. Barnes went downstairs. He saw blood at the bottom
step that led through to the back living room and kitchen. Johnson was lying on the
carpet and the linoleum. He was bleeding from the stomach area. He and Harris
professed their love for each other, then Johnson fell silent. Barnes got some towels to
hold against his wound, then called 911. Harris told him not to say Johnson had been
shot.
        Crowder recalled that she got out of the car and rang the doorbell, then, when
nobody answered, the others got out of the car. Willoughby and Vincent remained near
the vehicle, but defendant went up to the doorway and knocked on the window next to
the door. Crowder and defendant remained in the doorway for about five minutes, then
Johnson opened the door and asked defendant, “What’s up?” Crowder did not see
anything in his hands. Defendant responded, “What do you mean?” Although his voice
was calm, he appeared shocked that Johnson answered the door instead of Harris.
Johnson raised his hands with his fists closed, although he did not swing at defendant.
Crowder did not see defendant pull anything from his pocket or see anything in his hand,




                                             7.
but she saw a flash in between defendant and Johnson.11 Johnson was in the doorway;
defendant was outside the house. Johnson fell backwards, about three feet inside the
house. He said he did not want to die and he pleaded with defendant not to kill him.
Johnson was sitting on the floor, slumped against the couch and holding his stomach.
Crowder then saw defendant holding the gun he had previously had in the car. He was
pointing it at Johnson’s face. Defendant was about a foot away from Johnson. Harris
came down the stairs, screaming and crying. She pushed defendant away from Johnson.
       Crowder urged defendant to leave, then ran to the car. Willoughby was already in
the driver’s seat, and the others got in. The group returned to San Leandro, stopping only
at a gas station on the way. Defendant talked to his brother and told him what had
happened, and that Johnson was still alive when they left. When they arrived at the San
Leandro apartment, Brown, defendant’s brother, and some other people were there.
Defendant’s brother was drunk and laughing about what happened. Crowder told police
defendant was not happy about this. He said several times that he hoped Harris did not
move Johnson, because the bullet would move and might kill him. Crowder also told
police defendant said he did not want to kill Johnson, just mark him with a bullet.12


11    Crowder told Detective Owen that when defendant approached the door, Crowder
saw the gun in his right hand on the right side of his body.
12      When arrested almost a month later, Crowder named Willoughby as the shooter.
The police said they knew she was lying and that defendant was the shooter, and they
threatened Crowder with the loss of her children. Crowder subsequently had her attorney
contact the district attorney’s office to talk about the case; both Harris and defendant had
suggested she “take the fall” so defendant would not get into trouble. In March 2010,
Crowder contacted defendant’s attorney and told his investigator that she was coerced
into telling the district attorney and officers what they wanted to hear. Crowder said
defendant was not even present that night; she had his phone and was with Willoughby
and Vincent. She, Willoughby, and Vincent heard there had been an argument and
decided to go check on Harris, because Harris and Willoughby had a very close
relationship. Crowder fell asleep in the car; the next she knew, she heard a door slam.
Willoughby and Vincent rushed into the car. They were in front of Harris’s house, but


                                             8.
       According to Willoughby, defendant got out of the car first and went to the front
door, and the others followed. Defendant rang the doorbell, then, when no one answered,
started knocking. He was angry and upset that it was taking so long to get to his mother.
When Johnson finally answered the door, he seemed kind of upset and asked what they
were doing there. Defendant responded that it was because Johnson hit Harris.
       Defendant stepped into the tile entryway just inside the door. He started yelling,
and Johnson tried to say he did not do anything. Defendant took “a defensive stance,”
with one leg somewhat in front of the other and his shoulder to the side a bit.13 Johnson
started to back up, and defendant took a couple steps forward. Johnson begged defendant
not to kill him, then Willoughby “instantly” heard a single pop, and everybody ran back
to the car. Willoughby was in the driver’s seat; defendant got in front, and Crowder and
Vincent sat in the back. Defendant turned around and asked Crowder and Vincent which
one of them was going to be the one to “fold” (tell). Defendant still had the gun in his
hand and was waving it back and forth with it pointed at Crowder and Vincent.
       On the way out of Modesto, defendant received a phone call. Willoughby
believed it was from Harris. Defendant also talked to his brother at some point. The
mood inside the car was fairly upbeat.14

would not tell her what happened. When they dropped her off, they told her Johnson had
been shot. At trial, Crowder testified she was lying to the defense investigator.
13     Willoughby told officers he thought Johnson was prepared to fight, but Johnson
did not have anything in his hands, and Willoughby did not see him strike, or hear him
threaten, defendant.
14     While Willoughby was in jail following his arrest in this case, he received a letter
from defendant in which defendant said Willoughby should take responsibility for the
murder. While in jail, Willoughby wrote a letter to his attorney and the district attorney,
and gave the original to defendant. In it, he claimed he had been working all night at a
club on the night of the shooting; Vincent, who was drunk and high, was at the club that
night and had a handgun; Vincent borrowed Willoughby’s car and kept it for most of the
night; and Vincent, not defendant, was the shooter. At the time, Willoughby was housed
on the same tier as defendant, and defendant told him to write the letter.



                                             9.
       According to Vincent, he thought the most that would happen that night was a
fight. When Johnson answered the door, however, defendant “plunged” into the foyer
and pushed Johnson. Johnson pushed back. He was asking what was going on and trying
to get into a fighting stance to defend himself. Vincent did not see anything in Johnson’s
hands. Defendant told Johnson that Johnson knew what he was there for, and that
Johnson was beating on defendant’s mother. A revolver then appeared from defendant’s
right side. Johnson looked stunned and begged defendant not to shoot, but defendant
pointed the gun at Johnson’s chest and fired. Johnson grabbed his chest and went to his
knees. Defendant then pointed the gun at Johnson’s head and pulled the trigger again,
but the gun jammed. Vincent saw Harris running downstairs at this point. She said they
had better all get out of there, so they all got in the car and left.
       Once inside the car, defendant waved the gun around and said they all had better
not say anything. At one point on the drive back to the Bay Area, Harris called to relate
that Johnson was fighting for his life. She later called again and asked why they came
out there. Defendant basically replied, “Well, you called me to come out here, you knew
what was gonna happen when I came out here.” The mood in the car was somber.
       At approximately 4:47 a.m. on August 30, Modesto Police Officer Beavers and
Sergeant Van Diemen were dispatched to Harris’s house in response to a report of a
shooting. When they arrived, the front door was open, but no one was outside. Upon
entry into the living room area, Beavers saw Johnson lying on the floor in the kitchen
area with Harris sitting next to him. Johnson had a gunshot wound to his right bicep and
a gunshot wound to the right side of his chest. Although conscious, Johnson did not
respond to officers’ questions. Harris said Johnson had answered the door and been shot;
however, officers did not observe any blood at the front door or leading from the front
door to the couch, which was 10 to 15 feet away. There was blood on the seat cushions
of the couch, however.



                                               10.
       Detective Stanfield had contact with Harris at the hospital. He observed no
injuries on her person or any indication she had been involved in an altercation.15
       At the time of his death, Johnson was 39 years old, stood six feet tall, and weighed
270 pounds. His blood-alcohol level was 0.14 percent. An autopsy revealed a bullet
entered the right side of his abdomen. The bullet penetrated the liver, large intestine,
mesentery, and abdominal aorta, and was lodged in the left lower quadrant of the
abdomen. Its trajectory was from right to left, front to back, and slightly downward.
There was also a through-and-through bullet wound to Johnson’s right arm, just above
the elbow. If Johnson had his arms up in a defensive manner, it was possible he was shot
through the arm and into the chest. There were no other wounds or bruising to suggest he
had been involved in a physical altercation. The cause of death was extensive loss of
blood due to gunshot wounds to the abdomen and right upper arm.
       On August 31, defendant texted Deniella Ojeda and asked her to call Harris and
check on her. Defendant said Harris’s husband had been killed in a home invasion. Later
that night, when defendant and Ojeda were alone, defendant related that Harris had called
him and said Johnson put his hands on her. Defendant said he went down there and
walked in and just shot Johnson. Defendant said Johnson asked defendant not to shoot
before defendant fired.
                                             II
                                   DEFENSE EVIDENCE
       Defendant testified that his memories of Harris and his father were “parties or
violence.” When defendant was three or four years old, Harris killed defendant’s father.
There was an argument; Harris grabbed defendant, then defendant’s father started hitting
her with part of the vacuum cleaner hose. Defendant was in Harris’s arms, and she and

15    Barnes was at the hospital with Harris. While there, she told him not to say
defendant had been present.



                                            11.
he fell to the ground. They crawled to the closet and tried to close the door, but
defendant’s father opened it. Defendant then heard shots and his father fell back.
Defendant witnessed incidents of violence his “whole life,” including other instances of
domestic violence between his mother and men with whom she was involved after the
death of defendant’s father.
       When defendant was about four years old, Harris had a baby who died in his sleep.
It seemed as if Harris blamed defendant and thought it was his fault, so he felt bad.
Defendant always reacted to the reactions of the people around him. If his mother had a
strong reaction or was not happy, then defendant could not be happy.
       Defendant lived primarily with his grandparents after Harris killed his father,
although he spent time with his mother when he could. Sometimes he had to sneak away
to be with her. When he was about seven years old, his mother and boyfriend were
fighting, and his mother was losing. Defendant tried to help her, but the door to her room
was locked. Finally the boyfriend came out and pushed defendant down. Defendant
went to his mother, thinking he would nurse her back to health like usual, but this time
she pushed him away. He hit his head on the dresser and “bust[ed]” his head open, but he
did not think Harris tried to do that on purpose. She hurt him because he let her down
when he could not get in the room. She cussed him out and whipped him and told him
that if he could not help her, he was no good. Defendant promised her that he would
never let anybody else hurt her. Defendant’s grandfather took defendant to the hospital.
Defendant’s grandparents did not want him to be with Harris anymore after the incident,
but Harris was defendant’s mother and he loved her.
       On the evening of August 29 and early morning of August 30, defendant was
“[k]ickin’ it” — “[d]rinkin’, smokin’, snortin’, poppin’” — with Vincent, Crowder,
Brown, and his “partna Q,” who was “[j]ust one of [defendant’s] fools.” Defendant
estimated it was probably his fourth day without sleep. At some point (by which time Q
had left), Harris telephoned. She was hysterical and crying about how “he” put his hands

                                            12.
on her or she was getting beaten or something. Defendant could not understand
everything she was saying. He had heard her in fights before; she took care of herself.
He had never heard her so helpless. Harris did not ask defendant to come and do
anything; she knew if she was in trouble, he was going to come. Defendant was raised so
that nobody was going to hurt someone he loved, and he was going to do whatever he had
to do to protect his family.
       As soon as he got off the phone, defendant told Crowder to call Willoughby.
When Willoughby arrived, defendant, Crowder, and Vincent got into Willoughby’s car
and headed for Modesto. Defendant wanted to check on his mother and make sure she
was all right, because she needed him. He had a revolver.16
       On the drive to Modesto, defendant tried to think “how [he] would play it out.”
He did not know how it got to the point that Harris called him. He was not going to the
Modesto house to shoot anyone, but was anxious and trying to figure out what was going
on. He contacted Newton to try to find out how Harris was, but Newton just brushed him
off. Newton refused to go check on Harris, but never suggested she was okay. His
attitude angered defendant, because Newton was in Stockton already and, thus, much
closer to Harris’s house than defendant, and Newton usually did not have a problem
helping Harris. Because he was angry, defendant either turned off his phone or handed it
over to Crowder.
       The music in the car was loud, and defendant was doing drugs. He knew the gun
was loaded. Everyone in the car was trying to figure out what happened to make Harris
call defendant like she did, because she had never called him in that state. Plus,
defendant knew Johnson, who was “[not] even like that.” Defendant considered Johnson
“cool”; they had a very good relationship. Defendant had neither seen Johnson strike

16     Defendant normally carried some gun for his own protection, as “[a] lot [went]
on” in Oakland and Berkeley.



                                            13.
Harris nor himself had a physical fight with Johnson, and he had never heard of Johnson
hitting Harris. Johnson did not carry a gun and was pleasant to be around. He did not
have the kind of personality that would engage in violence. Defendant was not expecting
a fight with Johnson; Johnson would not challenge defendant like that. Defendant and
Johnson sometimes got high together, so defendant knew what Johnson was like even
under the influence of drugs.
       Willoughby drove fast — the way he always drove — on the way to Modesto.
During the drive, nobody in the car ever told defendant Harris had called and said she
was all right, or that it was just a gin night. When they pulled up to the house, defendant
jumped out and knocked on the door. Nobody answered. He knocked on the window
and looked in, but could not really see because the lights were off. He knocked on the
door again. Barnes did not yell at him from the window. Eventually, everyone else got
out of the car and came up behind defendant. Defendant was anxious; he wanted to see
his mother.
       After about five minutes, Johnson opened the door. Defendant was shocked, as he
was expecting to see his mother. He wondered why Johnson answered the door, and
asked him what was happening. Johnson’s demeanor was unusual; he was kind of hostile
and standoffish, and he asked defendant what he was doing there. Defendant asked
where his mother was, and Johnson replied that she was all right. Johnson asked again
what defendant was doing there, and said it had nothing to do with defendant. Defendant,
who did not have a gun in his hand, tried to push past Johnson to see his mother. Johnson
blocked the doorway, and defendant told him to back up. Johnson then pushed
defendant, who pushed back. Johnson was reaching, trying to grab something (defendant
did not know whether it was defendant or the gun), and then defendant heard the shot.
Defendant thought he pushed Johnson or hit him with the gun. He did not remember




                                            14.
pulling the gun out of his waistband, but thought he may have grabbed it because Johnson
was trying to grab it.17 Johnson never begged for his life, although he did ask defendant
why defendant shot him. Defendant did not know what to say, but was going to try to
help Johnson.18 Then Harris came down the stairs, however, and said, “Go, go, go.”
Defendant told her not to move Johnson because he was afraid the bullet could move, but
she told defendant to go, asked what he did, and told him again to get out.
       Defendant denied intending to shoot or kill Johnson. He just wanted to see his
mother and make sure she was all right. He did not even know he shot Johnson at first.
Defendant had thought he would check on Harris, then he and Johnson would run off like
other times when Johnson and Harris fought.
       On the way back, the mood in the car was quiet. Defendant felt confused. He
denied waving the gun around or threatening anyone. During the drive, he received a call
from his mother, saying that Johnson was still alive and on his way to the hospital.
Defendant learned Johnson had died an hour or two after the shooting. He felt “hollow.”
       Dr. Debbara Monroe, a licensed psychologist who specialized in early childhood
developmental disorders and who had performed attachment and bonding studies for
parents and children going through dependency cases and custody issues, examined
defendant. Her examination involved interviewing him twice in August 2011 for about
two hours each time, interviewing his brother, and reviewing documents from Harris,
records from Children’s Hospital in Oakland, and much of the discovery in this case. As
a result, she formed the opinion that his history, exposure to trauma, and lack of healthy
attachment figure warranted childhood diagnoses of reactive attachment disorder and


17     Defendant was aware Johnson did not have a gun, and defendant did not see
anything in Johnson’s hands.
18      Defendant denied advancing into the house, pointing the gun at Johnson’s head, or
firing a second time.



                                            15.
post-traumatic stress disorder (PTSD). As an adult, defendant suffered from the effects
of those disorders, and the results of what he suffered in childhood contributed to his
adult behaviors.
       Monroe diagnosed defendant as having PTSD in 2008. She also found him to
show symptoms of dissociative disorder that impacted his behavior. She placed him in
the category of dissociative disorder, not otherwise specified (NOS). Monroe believed
defendant exhibited this disorder at an early age and was clearly suffering from it as an
adult. Her primary diagnosis for adulthood was dissociative disorder NOS, with
defendant still suffering from symptoms of PTSD.
       Monroe explained that traumatic events affect brain development in young
children. Levels of heightened anxiety can be indelibly marked in the brain, so that such
an individual develops hyperaroused reactions and hyper states of anxiety. These
continue to affect the child as he or she develops into adulthood.
       Particularly from her interviews with defendant, Monroe concluded Harris put
defendant in the role of being her partner. She put responsibility on him to take care of
her, and he felt it was his role to make sure she was okay. The incident in which his head
was cut caused him to feel his charge in life was to make sure his mother was okay.19
       In his interviews with Monroe, defendant described the telephone call he received
from Harris on August 30 as an event where again he was terrified about his mother’s
safety and felt he desperately needed to get to her to find out if she was all right. In
Monroe’s opinion, Newton’s refusal to help caused defendant to feel even more desperate
and anxious about getting to his mother. Then, the similarity between Johnson blocking
the door to defendant and at least two other major traumatic events in defendant’s life



19     Hospital records showed the event occurred when defendant was eight. The
history given regarding the incident was that a swing hit defendant’s head at school.



                                             16.
could have triggered in defendant a reaction “coming from a place of complete
desperation, fear, and needing to get to his mother” to make sure she was all right.
       Monroe explained that a reaction based on past trauma can create moments in
which there is a lot of confusion, and the person’s perception of what is going on can be
temporarily blocked. There can even be periods of blackout. Defendant’s testimony
about not remembering pulling or shooting the gun was consistent with a dissociative
disorder and blacking out.
       Monroe opined that defendant’s following his mother’s orders to leave when, after
the shooting, he wanted to stay and try to help Johnson, was consistent with defendant’s
attachment disorder. Monroe believed the unhealthy attachment defendant had with
Harris, which developed early in childhood, still affected defendant today, and would
affect him in such a situation.
                                      DISCUSSION
                                              I
                             PROSECUTORIAL MISCONDUCT
       Defendant identifies three areas in which, he says, the prosecutor’s argument to
the jury constituted misconduct that violated his federal constitutional rights to due
process and a fair trial. We find no reversible error, whether the instances are viewed
individually or cumulatively.
       The applicable legal principles are settled. “Under the federal Constitution, a
prosecutor commits reversible misconduct only if the conduct infects the trial with such
‘“unfairness as to make the resulting conviction a denial of due process.”’ [Citation.] By
contrast, our state law requires reversal when a prosecutor uses ‘deceptive or
reprehensible methods to persuade either the court or the jury’ [citation] and ‘“it is
reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct”’ [citation].” (People v. Davis (2009) 46 Cal.4th 539,
612.) “A finding of misconduct does not require a determination that the prosecutor

                                             17.
acted in bad faith or with wrongful intent. [Citation.]” (People v. Kennedy (2005) 36
Cal.4th 595, 618, disapproved on another ground in People v. Williams (2010) 49 Cal.4th
405, 459.)
       “When a claim of misconduct is based on the prosecutor’s comments before the
jury, … ‘“the question is whether there is a reasonable likelihood that the jury construed
or applied any of the complained-of remarks in an objectionable fashion.”’ [Citations.]”
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) “In conducting this inquiry,
we ‘do not lightly infer’ that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998)
18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
       “To preserve a misconduct claim for review on appeal, a defendant must make a
timely objection and ask the trial court to admonish the jury to disregard the prosecutor’s
improper remarks or conduct, unless an admonition would not have cured the harm.
[Citation.]” (People v. Davis, supra, 46 Cal.4th at p. 612.) “When a defendant makes a
timely objection to prosecutorial argument, the reviewing court must determine first
whether misconduct has occurred, keeping in mind that ‘“[t]he prosecution has broad
discretion to state its views as to what the evidence shows and what inferences may be
drawn therefrom”’ [citation], and that the prosecutor ‘may “vigorously argue his case”
…, “[using] appropriate epithets warranted by the evidence.”’ [Citation.]” (People v.
Welch (1999) 20 Cal.4th 701, 752-753.) If misconduct occurred, we then determine
whether it was prejudicial under state law or the federal Constitution. (Id. at p. 753.)
A.     Misrepresenting the Law
       Defendant says the prosecutor misrepresented the law concerning second degree
murder and imperfect self-defense during closing arguments. Because the prosecutor’s
misstatements of the law related to elements and concepts that were crucial to the jury’s



                                             18.
determination of the correct homicide verdict, the argument runs, the misconduct violated
defendant’s federal constitutional right to a fair trial.
       1.      Background
       The prosecution proceeded on the theory defendant was guilty of first degree,
premeditated murder. Jurors were given a full range of lesser options, however: acquittal
based on self-defense or defense of another, or on accident or misfortune; second degree,
unpremeditated murder based on express or implied malice; voluntary manslaughter
based on sudden quarrel or heat of passion; voluntary manslaughter based on imperfect
self-defense or imperfect defense of another; and involuntary manslaughter.
       During her initial closing argument, the prosecutor stated portions of the
applicable law, and why, in her view, jurors should find intent to kill and premeditation
and so return a guilty verdict on the charge of first degree murder. During her discussion
of the lesser-included-offense options, the following took place:

             “[PROSECUTOR]: This case is a first degree murder case. The
       evidence in this case will prove that it’s … not a second degree murder
       case.

             “Second degree is under an implied malice theory as opposed to
       express malice, and that is an intentional act dangerous to life with
       conscious disregard … for the life. That’s the act, that’s the intent at the
       time.

               “But this case, the facts demonstrate that [defendant] harbor --

              “[DEFENSE COUNSEL]: Objection, Your Honor. She’s
       misstating the law. Second degree murder can be either, A, implied malice,
       or express malice. Either one, they can be second degree murder.

               “THE COURT: [Prosecutor]?

                “[PROSECUTOR]: You will not need this verdict form because this
       is a first degree, premeditated, deliberated murder.

              “Voluntary manslaughter is another verdict form you’re going to
       receive, and that is where there is no malice, it’s the finding of no malice


                                               19.
        harbored by the defendant in the case. In that scenario, the killing occurred
        in self-defense because the defendant believed he was in imminent danger
        or because he believed it was a defense of others because he believed that
        person was in imminent danger.

               “Now, the key word here is imminent, ladies and gentlemen.
        Imminent means now. There is no evidence to demonstrate that [Harris]
        was in danger at the time that [defendant] answered [sic] the door and fired
        the gun at [Johnson].… [¶] … [¶]

               “And the use of force that’s necessary to defend against the danger.
        There is no evidence in this case to suggest that the use of force in him
        shooting [Johnson] was necessary to prevent any imminent danger. And
        because of that, ladies and gentlemen, you also must believe that that belief
        is reasonable, it’s unreasonable in light of all the facts laid out before you --

              “[DEFENSE COUNSEL]: Objection, Your Honor. That is not the
        law. Unreasonable beliefs can support voluntary manslaughter, that’s
        simply wrong.

               “THE COURT: [Defense counsel], I’ll give you an opportunity.

               “[DEFENSE COUNSEL]: I understand, Your Honor. But when she
        misstates the law, that needs to be pointed out, and I need to make an
        objection.

              “[PROSECUTOR]: Judge, it says right in the instruction the belief
        must be reasonable.

               “THE COURT: It’s there. Go ahead, [prosecutor].

              “[PROSECUTOR]: Because it is not a reasonable belief in this case,
        because of the evidence that you have before you, you can take that verdict
        form and set it to the side, because you are not going to need it. It’s a first
        degree premeditated murder.”
        During his argument, defense counsel explained that intent to kill was not enough
for murder, although it made the killing an unlawful homicide unless it was done in
reasonable self-defense or reasonable defense of others. Defense counsel further told the
jury:

              “There is a second theory that the prosecution has the burden of
        proving did not exist. It is called imperfect self-defense or imperfect


                                               20.
       defense of others. Is a killing that would otherwise be murder is reduced to
       voluntary manslaughter if the defendant killed a person because he acted in
       imperfect self-defense or imperfect defense of another. If you conclude the
       defendant acted in complete self-defense or in defense of another, his action
       was lawful, and you must find him not guilty of any crime. Self-defense is
       a justifiable homicide, you’re not guilty.

             “The difference between complete self-defense or defense of another
       and imperfect self-defense or imperfect defense of another depends upon
       whether the defendant’s belief in the need to use deadly force was
       reasonable.

              “The defendant acted in imperfect self-defense or imperfect defense
       of another if, one, the defendant actually believed that he or [Harris] was in
       imminent danger of being killed or suffering great bodily injury, and two,
       the defendant actually believed that imminent use of deadly force was
       necessary to defend against the danger, but at least one, at least one, it could
       be both, of those beliefs was unreasonable.”
       In her rebuttal, the prosecutor in part referred the jury to the instruction on self-
defense, stating: “[I]t says the defendant acted in lawful self-defense or defense of
another if, one, the defendant reasonably believed that [Harris] was in imminent danger
of being killed or suffering great bodily injury, reasonably believed that the immediate
use of deadly force was necessary to defend against the danger.” This ensued:

             “[PROSECUTOR:] And the last thing when he talks about
       manslaughter, [defense counsel] is talking about two different kinds of
       manslaughter, he’s talking about voluntary manslaughter and involuntary
       manslaughter --

              “[DEFENSE COUNSEL]: If I might, Your Honor, that is an
       incorrect statement. That is a voluntary manslaughter, imperfect self-
       defense.

              “THE COURT: Are you talking about her slide?[20]

              “[DEFENSE COUNSEL]: Yes, her slide incorrectly states --


20     In her closing argument, the prosecutor displayed three slides to the jury. They are
not contained in the record on appeal.



                                              21.
             “[PROSECUTOR]: You know, he’s right. Actually, he’s right.
       And I’ll just correct that right now.

              “THE COURT: Not your words, but your slide?

              “[PROSECUTOR]: You know what? He’s right. And I’m going to
       correct that right now. It should say invol -- I mean vol. Excuse me. If I
       could just have a minute, folks.

             “So voluntary manslaughter under … CalCrim 571 is under
       imperfect self-defense. And, again, he doesn’t meet the elements.
       Imminent danger of being killed or suffering great bodily injury. Who is in
       imminent danger here --

             “[DEFENSE COUNSEL]: Again, Your Honor, that is furthermore
       wrong. It is at least one of those beliefs were unreasonable.

              “THE COURT: Just so you folks know, I will be reading you the
       instructions, you will have a copy for you folks to look at. Part of the
       instructions does indicate if there’s a discrepancy between what the
       attorneys say and my instructions that I read to you, you’re to accept the
       instructions as they are read to you by me.

             “[PROSECUTOR]: And the Judge is absolutely correct. Just go
       with what the instruction says.

               “So let’s talk about CalCrim 571, imperfect self-defense or defense
       of another. Again, the point is he doesn’t meet the elements under this
       either, and that is imminent danger of being killed or suffering great bodily
       injury. [¶] … [¶]

              “And the second element is that the belief that deadly force was
       necessary to stop that from happening, and at least one of those beliefs was
       unreasonable. That’s correct. Unreasonable. So I will change that slide as
       well. I just don’t want to take the time to do it now. It is unreasonable, at
       least one of those beliefs.

              “Well, all of those beliefs are unreasonable, and none of those
       elements have been met, because that’s not what the facts support in the
       case .…”
       The court subsequently instructed the jury. In pertinent part, jurors were told — as
they had been at the outset of trial — that nothing the attorneys said, including their
opening statements and closing arguments, was evidence. Jurors were also told they


                                             22.
must follow the law as the court explained it, and, if they believed the attorneys’
comments on the law conflicted with the court’s instructions, they must follow the court’s
instructions. The court fully instructed on the various theories of justifiable, excusable,
and unlawful homicide. With respect to justifiable homicide based on self-defense or
defense of another, the court instructed, in pertinent part, that defendant had to have
reasonably believed Harris was in imminent danger of being killed or suffering great
bodily injury, and he had to have reasonably believed the immediate use of deadly force
was necessary to defend against that danger. With respect to murder, the court instructed
that malice aforethought was required; proof of either express malice or implied malice
was sufficient to establish the state of mind required for murder; defendant acted with
express malice if he unlawfully intended to kill; and defendant acted with implied malice
if he intentionally committed an act, the natural and probable consequences of which
were dangerous to human life, at the time he acted he knew his act was dangerous to
human life, and he deliberately acted with conscious disregard for human life. The court
instructed that defendant was guilty of first degree murder if the People proved he acted
willfully, deliberately, and with premeditation, and it defined those terms. Jurors were
further instructed to consider provocation in deciding whether the crime was first or
second degree murder, and in determining whether defendant committed murder or
manslaughter. The court instructed on voluntary manslaughter based on sudden quarrel
or heat of passion, then told the jury:

              “A killing that would otherwise be murder is reduced to voluntary
       manslaughter if the defendant killed a person because he acted in imperfect
       self-defense or imperfect defense of another.

              “If you conclude the defendant acted in complete self-defense or
       defense of another, his action was lawful and you must find him not guilty
       of any crime. The difference between complete self-defense or defense of
       another and imperfect self-defense or imperfect defense of another depends
       on whether the defendant’s belief in the need to use deadly force was
       reasonable.


                                             23.
              “The defendant acted in imperfect self-defense or imperfect defense
       of another if:

            “One, the defendant actually believed that he or [Harris] was in
       imminent danger of being killed or suffering great bodily injury, and

             “Two, the defendant actually believed that the immediate use of
       deadly force was necessary to defend against the danger but;

              “Three, at least one of those beliefs was unreasonable.”
       2.     Analysis
       It is improper for a prosecutor to misstate or misrepresent the law. (People v.
Boyette (2002) 29 Cal.4th 381, 435; People v. Hill (1998) 17 Cal.4th 800, 829; People v.
Bell (1989) 49 Cal.3d 502, 538.) In her remarks, the prosecutor erred by suggesting
second degree murder could only be based on implied malice, and arguably insinuating
express malice rendered a killing first degree murder. (See, e.g., People v. Gonzalez
(2012) 54 Cal.4th 643, 653; People v. Nelson (2011) 51 Cal.4th 198, 213; People v.
Knoller (2007) 41 Cal.4th 139, 151; People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
She (and, initially, the trial court) also seems to have been confused either about which
type of self-defense or defense of another (complete versus imperfect) she was arguing,
or about when the law requires a defendant’s beliefs to have been reasonable. (See, e.g.,
People v. Humphrey (1996) 13 Cal.4th 1073, 1082; People v. Lopez (2011) 199
Cal.App.4th 1297, 1305.)
       Any harm was cured by the trial court’s correct instructions on the law, both with
regard to second degree murder and voluntary manslaughter based on imperfect self-
defense or defense of another. “When argument runs counter to instructions given a jury,
we will ordinarily conclude that the jury followed the latter and disregarded the former,
for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to
persuade.’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 717.) Here, the jury



                                             24.
was expressly admonished to follow the court’s instructions if they conflicted with the
attorneys’ statements. (See People v. Boyette, supra, 29 Cal.4th at p. 436.)21
       We recognize the trial court initially seemed to agree with the prosecutor that
voluntary manslaughter requires a defendant’s beliefs to be reasonable. We do not
believe jurors would have focused on a brief remark while ignoring the extensive formal
instructions given by the court on the subject. In light of those instructions and defense
counsel’s argument that correctly stated the law (and that also pointed out that, for
purposes of imperfect self-defense or defense of another, either or both beliefs could be
unreasonable), we find neither a reasonable probability a result more favorable to
defendant would have been reached without the prosecutorial error nor a trial that was
rendered fundamentally unfair thereby.
B.     Arguing Evidence for Impermissible Purpose
       Defendant next contends the prosecutor committed prejudicial misconduct by
arguing the contents of a letter written by Harris, which the defense expert had
considered in forming her opinions, for the impermissible purpose of the truth of the
matter stated therein. He further contends the trial court condoned the misconduct by
overruling his objection.




21      Defendant cites United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142,
1151 as support for the proposition that when a trial court does not clarify erroneous
statements by the prosecutor following defense objection, “the general jury instructions to
follow the court’s instructions if in conflict with a lawyer’s statements do not salvage the
error.” Weatherspoon addresses the effect of the general jury instruction reminding
jurors that an attorney’s statements during closing argument are not evidence. It says
nothing about an express admonition to follow the court’s instructions if an attorney’s
statements conflict therewith. It is thus distinguishable. In any event, we are bound to
follow our Supreme Court’s pronouncements on the subject. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)



                                            25.
       1.     Background
       Crowder (who changed her version of events on a number of occasions) testified
at trial that she “remember[ed it] being said,” before reaching the house in Modesto, that
she or someone in the car received a call from Harris, saying things had worked out and it
was just a gin night. Crowder also “believe[d]” defendant got a call from Barnes during
the ride to Modesto, in which Barnes tried to convince defendant that everything was all
right and not to come to Modesto. According to Barnes, however, he and Harris both
tried to call defendant to tell him not to come, but defendant’s phone was off. Newton
also testified that he tried to call defendant after learning Harris was all right, but was
unable to make contact. Defendant himself testified he either turned off his phone or
handed it over to Crowder on the way to Harris’s house.
       Monroe testified that the items she reviewed in connection with this case, and
relied on in reaching her diagnoses of defendant, included information relayed to Monroe
or defense counsel in a four-page letter and two-page statement written by Harris. In
part, Harris gave information concerning defendant’s history, including when he went to
live with his grandparents, his behavior and behavioral problems as a child, and the fact
she shot and killed defendant’s father in front of defendant when defendant was three
years old. Without objection, Monroe testified on cross-examination that in forming her
conclusions, she also read, considered, and relied on the portion of Harris’s written
statement in which Harris indicated she mistakenly telephoned defendant the night of the
shooting; hearing his voice had a sobering effect; and three minutes later, she called him
back and told him she was okay, that they were just drinking, and everything was fine.
On redirect examination, defense counsel questioned Monroe about other parts of
Harris’s written documents, and read portions of them to Monroe.
       During the course of her initial closing argument, the prosecutor asserted Harris
had telephoned defendant and said everything was fine, that it was just a gin night. In his
argument, defense counsel stated: “And I’m trying to figure out something that I cannot

                                              26.
comprehend, and that is when did this call come, when [Harris] says, ‘It’s just a gin,’ just
a gin thing. I think that may have been a message on [Crowder’s] phone when they got
back heading back toward San Leandro. Because there is zero evidence that that call was
received while they were in the car going from San Leandro to Modesto.” During the
prosecutor’s rebuttal, this took place:

              “[PROSECUTOR:] And then [defense counsel] argued … that the
       phone call where [Harris] calls [defendant] and tells him not to come never
       happened, and that the only person that was a witness to that was
       [Crowder], and … she can’t … be believed because she’s all over the place.
       Well, his own expert that he hired testified to you folks that at the time she
       was relying on information given to her, and I confirmed with her that one
       piece of that information --

             “[DEFENSE COUNSEL]: Objection, if I might. This certain
       evidence can be used for only one purpose, and she is trying to use it for
       another.

              “THE COURT: It’s in response to your argument. Go ahead.

             “[DEFENSE COUNSEL]: Well, I understand, Your Honor, but it is
       inadmissible for the purpose she is using it for.

              “THE COURT: It’s overruled.

               “[PROSECUTOR]: His own expert relies on the information
       provided to her by his own mother that says that, ‘To hear his voice was a
       sobering effect because it was a mistaken phone call, that three minutes
       later I called him back after I got myself together so I wouldn’t sound so
       desperate or in need and I told him I was okay, we were just drinking, and
       everything was fine.’

               “[Crowder] said that that phone call occurred, and [Harris] writes in
       this letter to the expert for expert testimony and analysis that that’s what
       happened.”
       During the next break, defense counsel memorialized a mistrial motion he made
outside the court reporter’s (and jury’s) presence. Counsel argued Harris’s letter was
only relevant and admissible as a basis for Monroe’s opinion, and was inadmissible to
prove — as the prosecutor argued it did — the phone call was actually made. The


                                            27.
prosecutor responded that she specifically asked Monroe if she considered that portion of
the document in reaching her diagnoses, “[a]nd in the argument I was stating that we’ve
heard about it more than once. I don’t know that I ever said, ‘This is truth because.’ I
mean, we’ve heard about it from more than person [sic], that [jurors] can give it the
weight or credibility they believe it deserves or doesn’t deserve.”
       When instructing the jury, the trial court stated: “During the trial, certain evidence
was admitted for a limited purpose. You may consider that evidence only for that
purpose and for no other.” The court also told jurors: “Debra [sic] Monroe testified that
in reaching her conclusions as an expert witness, she considered statements made by
[Harris] and [defendant’s brother]. You may consider those statements only to evaluate
the expert’s opinion. Do not consider those statements as proof that the information
contained in the statements is true.”
       2.     Analysis
       “It is the long-standing rule in California that experts may rely upon and testify to
the sources on which they base their opinions [citations], including hearsay of a type
reasonably relied upon by professionals in the field. [Citations.] These rules apply to
mental health experts. [Citation.] Hearsay relied upon by experts in formulating their
opinions … is not offered for the truth of the facts stated but merely as the basis for the
expert’s opinion. [Citations.]” (People v. Cooper (2007) 148 Cal.App.4th 731, 746-747;
accord, People v. Hill (2011) 191 Cal.App.4th 1104, 1128.)22 “[A] witness’s on-the-
record recitation of sources relied on for an expert opinion does not transform
inadmissible matter into ‘independent proof’ of any fact. [Citations.]” (People v.
Gardeley (1996) 14 Cal.4th 605, 619.)


22     We are not concerned in this case with the question if or when such evidence may
be “testimonial” under Crawford v. Washington (2004) 541 U.S. 36 and its progeny.
(See generally People v. Valadez (2013) 220 Cal.App.4th 16, 30-36.)



                                             28.
       It is improper for a prosecutor to obscure the limited purpose for which evidence
was admitted. (See People v. Clark (1993) 5 Cal.4th 950, 1008, disapproved on another
ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) The prosecutor did so
here, and the trial court should have sustained defense counsel’s objection. Nevertheless,
we conclude defendant was not prejudiced.
       “If a prosecutor’s argument refers to extrajudicial statements not admitted at trial,
the defendant may be denied his right under the Sixth Amendment to confrontation and
cross-examination, thus requiring reversal of the judgment unless the court is satisfied
beyond a reasonable doubt that the misconduct did not affect the verdict. [Citations.]”
(People v. Harris (1989) 47 Cal.3d 1047, 1083, disapproved on another ground in People
v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10; see also People v. Bell, supra, 49 Cal.3d at
pp. 533-534.) In the present case, however, jurors were aware of what Harris had written
for Monroe’s use. Thus, the prosecutor did not essentially act as her own unsworn
witness. Moreover, it is clear she was responding to defense counsel’s argument.
“‘Although the remarks of a defense counsel do not justify retaliation by the prosecution,
such remarks must be considered in assessing the prejudicial effect of the prosecutorial
misconduct.’ [Citations.]” (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585.)
Significantly (and, in our view, dispositively), although the trial court overruled the
contemporaneous defense objection, it subsequently gave an express limiting instruction
that was directed precisely to the evidence at issue. In addition, there was specific
testimony, which was not limited in purpose, that at least two people tried to call
defendant and were unable to make contact with him. Under the circumstances, we are
satisfied the jury was not misled, or the verdict affected, by what occurred. (See People
v. Clark, supra, 5 Cal.4th at p. 1009; People v. Bell, supra, 49 Cal.3d at pp. 534, 542.)
       On appeal, defendant presents the alleged misconduct as a due process violation,
rather than a violation of the confrontation clause. This does not change our conclusion.
Although, as defendant points out, it has been held that a prosecutor’s knowing

                                             29.
presentation of false or misleading argument constitutes a due process violation (e.g.,
People v. Morrison (2004) 34 Cal.4th 698, 717), cases so holding present situations much
different than what happened here. For instance, in Miller v. Pate (1967) 386 U.S. 1, 5-6,
the prosecutor argued to the jury that stains on a pair of shorts were the victim’s blood,
while knowing they were actually paint. In People v. Morrison, supra, 34 Cal.4th at page
716, the defendant claimed a prosecution witness committed perjury, and the prosecutor
knew the testimony was false but presented it anyway. In People v. Sakarias (2000) 22
Cal.4th 596, 632-633, the prosecutor knowingly argued inconsistent factual theories in
the separate trials of coperpetrators. In Brown v. Borg (9th Cir. 1991) 951 F.2d 1011,
1012, 1014-1015, the prosecution’s theory was that the victim was killed when the
defendant and an accomplice robbed him of his wallet and jewelry. The prosecutor failed
to inform defense counsel those items in fact were not stolen, allowed a detective to
testify to an opinion based in part on the allegedly stolen items, and argued to the jury the
items were missing.
       “‘[T]he touchstone of due process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability of the prosecutor.’ [Citation.]”
(In re Price (2011) 51 Cal.4th 547, 560.) The prosecutor’s response to defense counsel’s
argument did not render defendant’s trial unfair.
C.     Misusing Defendant’s Prior Conviction
       Defendant contends the prosecutor misused defendant’s prior assault conviction.
He claims the prosecutor argued a fact not in evidence (the conviction was for shooting
someone) and used the conviction for an improper purpose (disposition instead of
impeachment).
       1.     Background
       On or about November 8, 2000, defendant was convicted in the Superior Court of
Alameda County of assault with a firearm (§ 245, subd. (a)(2)). Prior to the current trial,
the prosecutor sought the conviction’s admission as relevant on the issues of intent and

                                             30.
identity, as well as for impeachment. The trial court ruled the prior incident was too
prejudicial to be admitted in the prosecution’s case-in-chief, but might be relevant for
impeachment should defendant testify, and also might become relevant depending on the
defense expert’s testimony. During defendant’s testimony, the court confirmed the
prosecutor could present the date, Penal Code section, title, and fact the offense was a
felony. In keeping with the court’s ruling, the prosecutor subsequently elicited from
defendant that on November 8, 2000, he was convicted of a felony, specifically assault
with a firearm on a person, in Alameda County.
       During the prosecutor’s closing argument, the following took place:

              “[PROSECUTOR:] Post-traumatic stress disorder. I tried to nail
       [Monroe] down on this. Are you diagnosing him as a child or as an adult,
       okay? What are the diagnostic criteria for that? She says I’m diagnosing
       him as a child first. He witnessed a traumatic event, yes, he did.…

               “Persistent avoidance from things associated with that event. Well,
       that’s violence, that’s firearms, that’s domestic violence. Where is he in his
       life avoiding any of those three things?

              “You heard from Desamona Crowder that he beat her. You heard
       that he has a gun, he uses a gun, always carries a loaded gun.…

              “He’s not avoiding the situations associated with the traumatic
       event, and he’s certainly by virtue of the fact that he has been convicted of
       shooting somebody in the past and he shoots [Johnson] --

              “[DEFENSE COUNSEL]: Objection, Your Honor.

              “THE COURT: That misstates his prior.

              “THE DEFENDANT: It misstates a lot of stuff.

              “[PROSECUTOR]: He was convicted of assault with a firearm in
       the past, and he shot [Johnson], that he’s not avoiding acts of violence.

              “There’s no avoidance. He doesn’t meet the criteria for avoidance.”
       As previously stated, at the next break, defense counsel placed his mistrial motion
on the record. As one of the grounds for a mistrial, defense counsel pointed to the


                                            31.
prosecutor’s use of defendant’s prior conviction to show defendant had assaulted people
with firearms before. Counsel argued the evidence was inadmissible for that purpose. As
soon as the jury returned to the courtroom, the court stated:

              “And, folks, before I start reading you the instructions, during her
       rebuttal, her closing argument, [the prosecutor] referred to a prior
       conviction of [defendant]. And I’ll ask you to disregard that as part of her
       argument.

              “And I will read you an instruction that I will read later on .… And
       this has to do with the credibility of witnesses and prior convictions.

              “And the instruction reads:

              “If you find that a witness has been convicted of a felony, you may
       consider that fact only in evaluating the credibility of the witness’[s]
       testimony. The fact of a conviction does not necessarily destroy or impair a
       witness’[s] credibility. It’s up to you to decide the weight of that fact and
       whether that fact makes a witness less believable.

              “If you find that a witness has committed a crime or other
       misconduct, you may consider that fact only in evaluating the credibility of
       the witness’[s] testimony. The fact that a witness may have committed a
       crime or other misconduct does not necessarily destroy or impair a
       witness’[s] credibility. It’s up to you to decide the weight of that fact and
       whether that fact makes the witness less believable.

              “So, again, that portion of the instructions goes to the fact that a
       prior conviction may be considered only as to credibility of a witness’[s]
       testimony.”
The court repeated the instruction during the reading of the instructions as a whole.
       2.     Analysis
       A prosecutor commits misconduct by referring, in closing argument, to facts not in
evidence. (People v. Hill, supra, 17 Cal.4th at pp. 828-829.) When a defendant’s prior
conviction has been admitted solely for impeachment purposes, a prosecutor errs by
relying on it to argue the defendant’s predisposition to commit a crime. (See People v.
Collins (2010) 49 Cal.4th 175, 211, 213; cf. People v. Friend (2009) 47 Cal.4th 1, 33.)



                                            32.
       When the prosecutor’s argument here is considered in context, we do not find it
reasonably likely jurors construed her remarks as suggesting defendant should or could
be convicted based on his criminal propensity or predisposition to commit a crime.
However, the prosecutor should have refrained from arguing defendant had been
convicted of shooting someone in the past and from using his prior conviction for a
purpose other than impeachment.
       Nevertheless, any misconduct was harmless. The trial court promptly intervened.
Not long after, it admonished jurors to disregard the offending portion of the prosecutor’s
argument, and it repeatedly instructed the jury that a prior conviction could only be
considered in evaluating credibility. The admonitions cured any harm, particularly in
light of extensive evidence unrelated to defendant’s prior conviction (including
defendant’s own testimony) that defendant habitually carried a gun and could be violent.
(See, e.g., People v. Collins, supra, 49 Cal.4th at p. 209; People v. Friend, supra, 47
Cal.4th at p. 40; People v. Dykes (2009) 46 Cal.4th 731, 774; People v. Harrison (2005)
35 Cal.4th 208, 246.)
                                             II
                                   JURY INSTRUCTIONS
       Defendant raises two claims of allegedly prejudicial error in the giving of jury
instructions. We conclude that, assuming the claims have been preserved for appeal, any
error was harmless in light of the instructions as a whole and counsels’ arguments.
A.     CALCRIM No. 225
       Defendant contends the trial court erred by failing to include the mental state of
deliberation and premeditation in CALCRIM No. 225. Due to the omission, he says, “a
reasonable juror would not have thought that the ‘reasonable theory of innocence’
principle applied to premeditation and deliberation.”




                                            33.
       1.     Background
       As previously described, the prosecution proceeded on a theory that the homicide
was willful, deliberate, and premeditated, and, accordingly, first degree murder. Defense
counsel asserted the killing was, at the very least, a lesser crime. In part, defense counsel
argued that even ordinarily prudent people would have their ability to deliberate affected
by trying to find out if a loved one had been hurt, and that such provocation would have
affected defendant differently “because of the way his head [was] hot [sic] wired .…”
       In its instructions, the trial court defined direct and circumstantial evidence
pursuant to CALCRIM No. 223, and told jurors both were acceptable types of evidence,
neither was entitled to greater weight than the other, and jurors had to decide whether a
fact in issue had been proved based on all the evidence. Pursuant to CALCRIM No. 224,
the trial court next instructed:

              “Before you may rely on circumstantial evidence to conclude that a
       fact necessary to find the defendant guilty has been proved, you must be
       convinced that the People have proved each fact essential to that conclusion
       beyond a reasonable doubt.

              “Also, before you may rely on circumstantial evidence to find the
       defendant guilty, you must be convinced that the only reasonable
       conclusion supported by the circumstantial evidence is that the defendant is
       guilty. If you can draw two or more reasonable conclusions from the
       circumstantial evidence, and one of those reasonable conclusions points to
       innocence and another to guilt, you must accept the one that points to
       innocence. However, when considering circumstantial evidence, you must
       accept only reasonable conclusions and reject any that are unreasonable.”
       This instruction was immediately followed by CALCRIM No. 225, to wit:

              “The People must prove not only that the defendant did the act
       charged, but also that he acted with a particular intent. The instruction for
       the crime explains the intent required.

              “An intent may be proved by circumstantial evidence.

              “Before you may rely on circumstantial evidence to conclude that a
       fact necessary to find the defendant guilty has been proved, you must be


                                             34.
      convinced that the People have proved each fact essential to that conclusion
      beyond a reasonable doubt.

              “Also, before you may rely on circumstantial evidence to conclude
      that the defendant had the required intent, you must be convinced that the
      only reasonable conclusion supported by the circumstantial evidence is that
      the defendant had the required intent. If you can draw two or more
      reasonable conclusions from the circumstantial evidence, and one of those
      reasonable conclusions supports a finding that the defendant did have the
      required intent, and another reasonable conclusion supports a finding that
      the defendant did not, you must conclude that the required intent was not
      proved by the circumstantial evidence. However, when considering
      circumstantial evidence, you must accept only reasonable conclusions and
      reject any that are unreasonable.”
      2.     Analysis
      In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172, the Court of
Appeal explained:

              “The trial court is required to instruct the jury on the general
      principles of law relevant to the issues raised by the evidence. [Citation.]
      CALCRIM No. 224 states such a principle that must be given sua sponte on
      those occasions when it is applicable. [Citations.][23] It is applicable only
      when the prosecution substantially relies on circumstantial evidence to
      establish any element of the case. [Citations.] The instruction should not
      be given where circumstantial evidence is incidental to and corroborative of
      direct evidence. [Citations.]

             “CALCRIM No. 225 is to be used in place of CALCRIM No. 224
      ‘when the defendant’s specific intent or mental state is the only element of
      the offense that rests substantially or entirely on circumstantial evidence.’
      [Citations.] CALCRIM Nos. 224 and 225 provide essentially the same

23     In a footnote at this point, the court stated: “CALCRIM Nos. 224 and 225 are
substantially the same as their predecessors, CALJIC Nos. 2.01 and 2.02. In each pair,
the lower numbered instruction informs the jury as to how to consider circumstantial
evidence to find the defendant guilty, and the higher numbered instruction informs the
jury on how to consider circumstantial evidence when only the element of mental state or
intent has been proven by such evidence. Authorities discussing these CALJIC
instructions are therefore instructive with regard to the analogous CALCRIM
instructions.” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1171, fn. 12.)



                                           35.
       information on how the jury should consider circumstantial evidence, but
       CALCRIM No. 224 is more inclusive. [Citation.]”
       Defendant says only CALCRIM No. 225 should have been given in the present
case, because identity was not in issue and the determination of defendant’s mental state
depended largely on circumstantial evidence. He concedes any error would have been
harmless (or nonexistent) had only the more-inclusive CALCRIM No. 224 been given,
but argues the trial court prejudicially misled the jury by giving both instructions while
omitting mental state and/or deliberation and premeditation from CALCRIM No. 225.24
       The issue has not been preserved for appeal. “‘Generally, a party may not
complain on appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate clarifying or
amplifying language.’ [Citation.]” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-
1012.) Defendant did not do so here.25 Although the rule of forfeiture does not apply
when the trial court gives an instruction that is an incorrect statement of the law (Hudson,
supra, at p. 1012), such is not the situation here (see People v. Livingston (2012) 53
Cal.4th 1145, 1165).
       In any event, defendant’s claim of prejudicial error fails on the merits. “In
assessing a claim of instructional error or ambiguity, we consider the instructions as a
whole to determine whether there is a reasonable likelihood the jury was misled.
[Citations.]” (People v. Tate (2010) 49 Cal.4th 635, 696; see Estelle v. McGuire (1991)
502 U.S. 62, 72 & fn. 4.) In making this analysis, we presume jurors are intelligent

24      Where the version of CALCRIM No. 225 given to defendant’s jury refers only to
intent, the form version of the instruction refers to “(intent/ [and/or] mental state).”
Premeditation and deliberation constitute mental states for purposes of the instruction.
(See § 28, subd. (a); People v. Contreras (2010) 184 Cal.App.4th 587, 592-593.)
25     It is unknown why the trial court gave both CALCRIM Nos. 224 and 225, and
why it modified CALCRIM No. 225 so as to omit mental state, as the jury instruction
conference was not reported. However, the parties placed any objections and requests on
the record.



                                            36.
persons who are capable of understanding, correlating, and applying all jury instructions
given. (People v. Gonzales (2011) 51 Cal.4th 894, 940; People v. Guerra (2006) 37
Cal.4th 1067, 1148, disapproved on another ground in People v. Rundle (2008) 43
Cal.4th 76, 151.)
       CALCRIM No. 224, being the more inclusive of the two instructions, told jurors
how to deal with circumstantial evidence as to any fact, including mental state. (See
People v. Samaniego, supra, 172 Cal.App.4th at p. 1172.) Considered together,
CALCRIM No. 225 at most emphasized the principles contained in CALCRIM No. 224
with respect to circumstantial evidence of intent. Because jurors were told to consider all
the instructions together, it is not reasonably likely they were misled, as defendant now
claims, into believing the circumstantial evidence principles were inapplicable to
deliberation and premeditation. Accordingly, any error in giving both instructions or in
modifying CALCRIM No. 225 so as to omit mental state, was harmless under any
standard. (See, e.g., Estelle v. McGuire, supra, 502 U.S. at p. 72; People v. Thornton
(2007) 41 Cal.4th 391, 440-441; People v. Rogers (2006) 39 Cal.4th 826, 885-887;
People v. Samaniego, supra, 172 Cal.App.4th at p. 1172.)
B.     CALCRIM No. 3428
       Defendant says the trial court also erred by wording CALCRIM No. 3428 in a
manner that wrongly conveyed the notion mental disorder evidence was limited to the
issue of specific intent to kill. Because such evidence was also relevant to the issue of
deliberation and premeditation, he says, the error violated his Fourteenth Amendment
right “to a fair determination of whether he deliberated and premeditated the killing.”
       1.     Background
       As previously described, the defense presented expert testimony supporting a
mental state defense, in an attempt to show defendant acted without deliberation and
premeditation in killing Johnson. In his summation, defense counsel observed that if a
killing was done without a legally valid excuse or justification, the killing was unlawful

                                            37.
and, depending on the circumstances, the person was guilty of either murder or
manslaughter. Defense counsel told jurors it would be up to them to decide of which
crime defendant might be guilty, and he noted: “That’s why this evidence concerning his
brain and the abuse he suffered is extremely relevant as to what crime he in fact
committed. It’s the law.”
       Defense counsel further argued Johnson committed a provocative act when,
although he knew defendant was coming to find out if Harris was all right, Johnson told
defendant it was none of his business and to get out of there. Counsel told the jury:

              “You go to go visit your momma who you think was beaten, and
       he’s saying, ‘None of your blankety-blank business,’ and obstructs the
       door. That is enough to provoke reasonable people into acting without the
       usual reasonableness, because you gotta find out. It’s your momma.…

              “The way [defendant’s] brain is wired, you may as well hit him over
       the head with a two-by-four. But it isn’t just because he’s wired that way,
       ladies and gentlemen. Any reasonable person is wired, it’s just the reaction
       may be greater by [defendant].”
       Defense counsel also argued: “And, again, just for the record even if you find that
this provocation would not have been sufficient on a normal person, if it would have
affected [defendant] differently because of the way his head is hot [sic] wired, then you
must still -- it goes to deliberation of the first degree.” He also told jurors: “Prosecution
has not met its burden of proof of first degree murder. They cannot prove premeditation
and deliberation. [Defendant’s] brain, the information that he had isn’t capable of
premeditating or deliberating anything when he has the word that his momma is in
danger. For someone to challenge [defendant], if he attempts to get into the house, he
can’t deliberate, he can’t think about anything else except visiting his momma under
these circumstances. You do not get first degree murder without premeditation and
deliberation. The prosecution has not proven in any way, shape or form premeditation or
deliberation was there, whatever.” Defense counsel subsequently reiterated that



                                             38.
premeditation and deliberation were not proven beyond a reasonable doubt, “not when
you consider the brain of [defendant] and the hot [sic] wiring.”
       The trial court instructed the jury on first degree murder as follows:

              “The defendant is guilty of first degree murder if the People have
       proved that he acted willfully, deliberately, and with premeditation. The
       defendant acted willfully if he intended to kill. The defendant acted
       deliberately if he carefully weighed the considerations for and against his
       choice and, knowing the consequences, decided to kill. The defendant
       acted with premeditation if he decided to kill before completing the act that
       caused death.

               “The length of time the person spends considering whether to kill
       does not alone determine whether the killing is deliberate and premeditated.
       The amount of time required for deliberation and premeditation may vary
       from person to person and according to the circumstances. A decision to
       kill made rashly, impulsively, or without careful consideration is not
       deliberate and premeditated. On the other hand, a cold, calculated decision
       to kill can be reached quickly. The test is the extent of the reflection, not
       the length of time.”
       The trial court subsequently instructed, pursuant to CALCRIM No. 3428:

              “You have heard evidence that the defendant may have suffered
       from a mental disorder. You may consider this evidence only for the
       limited purpose of deciding whether at the time of the charged crime, the
       defendant acted with the intent or mental state required for that crime.

               “The People have the burden of proving beyond a reasonable doubt
       that the defendant acted with the required intent or mental state,
       specifically: The specific intent to kill with malice aforethought. If the
       People have not met this burden, you must find the defendant not guilty of
       Count One, murder.”
       2.     Analysis
       A trial court has no sua sponte duty to give CALCRIM No. 3428. (People v.
Ervin (2000) 22 Cal.4th 48, 91 (Ervin) [discussing CALJIC No. 3.32, CALCRIM
No. 3428’s counterpart].) Although we do not know which party requested the
instruction, defendant neither objected to its wording nor requested amplification or
clarification. As a result, the Attorney General says, defendant’s claim has been

                                            39.
forfeited. (See, e.g., People v. Lee (2011) 51 Cal.4th 620, 638; People v. Hudson, supra,
38 Cal.4th at pp. 1011-1012; People v. Young (2005) 34 Cal.4th 1149, 1202-1203.) If
CALCRIM No. 3428 told jurors they could consider mental disorder evidence only with
respect to intent to kill, however, it would constitute an incorrect statement of the law,
and the rule of forfeiture would not apply. (People v. Hudson, supra, 38 Cal.4th at
p. 1012.) Moreover, the issue “would implicate the court’s duty to give legally correct
instructions. Even if the court has no sua sponte duty to instruct on a particular legal
point, when it does choose to instruct, it must do so correctly.” (People v. Castillo (1997)
16 Cal.4th 1009, 1015.) Accordingly, we address defendant’s claim on the merits.
       “‘A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]’
[Citation.][26] ‘“[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.” [Citations.]’ [Citation.]” (People v. Solomon (2010) 49 Cal.4th 792, 822.)
“The reviewing court also must consider the arguments of counsel in assessing the
probable impact of the instruction on the jury. [Citations.]” (People v. Young, supra, 34
Cal.4th at p. 1202.) And, we must assume the jurors are intelligent persons and capable



26     Citing Francis v. Franklin (1985) 471 U.S. 307, 316, defendant asserts jury
instructions “must be reviewed in terms of what a ‘reasonable juror’ could understand the
instructions to mean.” In Boyde v. California (1990) 494 U.S. 370, however, the United
States Supreme Court acknowledged Francis’s formulation (Boyde, supra, at p. 378), but
determined “the proper inquiry … is whether there is a reasonable likelihood that the jury
has applied the challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence.” (Id. at p. 380.) In Estelle v. McGuire, supra, 502
U.S. at page 72 and footnote 4, the high court reaffirmed Boyde’s standard. The
California Supreme Court has adopted that standard for assessing instructions under
California law. (People v. Clair (1992) 2 Cal.4th 629, 662-663.)



                                             40.
of understanding and correlating all instructions given to them. (People v. Guerra, supra,
37 Cal.4th at pp. 1148-1149.)
       “[I]f there is evidence from a qualified expert the defendant suffered from a
mental disease, defect or disorder at the time of the crime … the particular mental
disease, defect or disorder becomes a matter for the jury to consider as that fact finder
believes appropriate in deciding whether the defendant acted with the required mental
state.” (People v. Larsen (2012) 205 Cal.App.4th 810, 828 (Larsen).) The first
paragraph of CALCRIM No. 3428, as given in the present case, so informed the jury.
The trial court was not required to identify premeditation and deliberation as a mental
state to which evidence of mental disorder was relevant, given that it had already
explained premeditation and deliberation were mental states necessary for a conviction of
first degree murder. (People v. Rogers, supra, 39 Cal.4th at p. 881.)
       The question is whether the second paragraph of the instruction erroneously
conveyed that mental disorder evidence could not be considered with respect to
premeditation and deliberation, but instead was limited to the issue of specific intent to
kill. We conclude that although it might be so interpreted, considered in isolation, the
instructions as a whole and defense counsel’s argument to the jury made it clear jurors
were free to consider mental disorder evidence in determining whether defendant
deliberated and premeditated, as well as in determining whether he specifically intended
to kill. (See People v. Rogers, supra, 39 Cal.4th at pp. 881-882; People v. Castillo,
supra, 16 Cal.4th at pp. 1015-1017; cf. People v. Wade (1988) 44 Cal.3d 975, 994-995.)
As we previously observed, jurors were told to consider all the instructions together. The
record neither contains any inquiries from them regarding the application of the
instructions nor suggests any confusion on their part. (See People v. Young, supra, 34
Cal.4th at p. 1203.) Moreover, defendant’s arguments to the contrary notwithstanding,
there was strong evidence of premeditation. Under the circumstances, it is not reasonably
probable the jury would have reached a different verdict had the court expressly included

                                             41.
premeditation and deliberation in CALCRIM No. 3428. (See Ervin, supra, 22 Cal.4th at
p. 91; Larsen, supra, 205 Cal.App.4th at pp. 829-831.)
       Defendant argues there is a difference between not giving the instruction at all, as
was the situation in Ervin and Larsen, and giving an erroneous version thereof. He points
out his defense was predicated on evidence that due to his background and mental
disorder, he reacted impulsively during his confrontation with Johnson. He claims the
instructional error should be assessed under the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), not the less
stringent standard for state law error of People v. Watson (1956) 46 Cal.2d 818, 836
(Watson), because, “[a]lthough the erroneous instruction did not remove the element of
deliberation and premeditation from jury consideration, the instruction effectively did so
by eliminating consideration of [defendant’s] mental disorder evidence as to this issue.”
       It is settled that “instructional error relieving the prosecution of the burden of
proving beyond a reasonable doubt each element of the charged offense violates the
defendant’s rights under both the United States and California Constitutions.” (People v.
Flood (1998) 18 Cal.4th 470, 479-480.) Additionally, error in giving conflicting
instructions on the intent or mental state element required to sustain a guilty verdict is
assessed under the Chapman standard (People v. Lee (1987) 43 Cal.3d 666, 668-669), as
is instructional error that improperly describes or omits an element of the offense
(Larsen, supra, 205 Cal.App.4th at p. 829 & cases cited).
       These situations do not exist here, however. “CALCRIM No. 3428 does not
delineate or describe an element of an offense. Rather, it is a pinpoint instruction relating
particular facts to a legal issue in the case. [Citation.]” (Larsen, supra, 205 Cal.App.4th
at p. 830.) As worded, CALCRIM No. 3428 neither removed from the jury’s
consideration nor misstated the intent or mental state elements of the offense. (See
Larsen, supra, at p. 830.) The elements of murder, and requirement and definition of
premeditation and deliberation, were fully set out in other instructions. The instructions

                                             42.
as a whole and defense counsel’s argument made it clear that jurors could consider
defendant’s mental disorder evidence on the issue of premeditation and deliberation, as
well as intent. Any error was not of federal constitutional magnitude.
                                            III
                                   SECURITY MEASURES
       Defendant complains that the trial court abused its discretion by positioning an
extra bailiff near defendant while defendant testified, after already improperly requiring
that defendant be shackled. Assuming the trial court erred, we conclude defendant has
failed to demonstrate prejudice.
A.     Background
       By the time defendant took the stand, the jury had heard evidence defendant was
arrested on September 18, 2008, after attempting to avoid police by jumping from a
second-floor balcony and fleeing on foot. Although shot with a Taser to prevent him
from fleeing further, defendant refused to comply with officers’ demands that he show
his hands, and he was tased again. He was then taken into custody.27 The jury had also
learned several witnesses saw defendant be violent on different occasions; Crowder told
Detective Owen that she was afraid of defendant and that, a few days after the shooting,
defendant choked Crowder with a scarf until she blacked out; and Willoughby told
Detective Grogan he was afraid of defendant and so was everyone he knew.
       Shortly before defendant testified, the following took place:

              “[THE COURT:] And as I indicated in chambers also, there’s going
       to be additional security between the witness stand and the jurors. There
       are … three jurors who are the alternates who are very close to the witness
       stand. We’re in an adequate courthouse with an adequate courtroom, and
       as long as your client is going to be seated at the witness stand before the
       jury gets here, I am going to have my bailiff secure his legs.

27    It appears from the record that defendant remained in custody from that point
forward.



                                            43.
         “[DEFENSE COUNSEL]: Your Honor, … I am opposed to that. It
is inappropriate to shackle a defendant when he is testifying or when he is
in trial. It gives a sense of --

       “THE COURT: Security?

        “[DEFENSE COUNSEL]: Well, it gives a sense of a need for
security when he is testifying and that would indicate that the defendant --
to the jurors that there’s some reason for it.

       “THE COURT: … [T]he jurors aren’t going to know. They’re not
going to see it. It can’t be seen. They’re not going to be the leg irons that
are noisy. They’re going to be the leg ties that are quiet.

        “But just for the record, … your client’s charged with murder. Your
client is also -- there’s been evidence that he jumped off a balcony in an
apartment complex into a tree when he resisted the officers and he had to be
tased, and there’s been significant testimony regarding people being afraid
of your client, and we’ve got 15 jurors here who have never been close to
somebody who has been charged with murder and for their protection and
the protection [of] the Court and the protection of the bailiffs in this room,
he is going to have to be restrained.

       “[DEFENSE COUNSEL]: I would strongly object to that, Your
Honor. And I would also note that would be [a] due process objection
under the United States as well as the California Constitution.

       “THE COURT: Well, there is going to have to be levels of security.
There’s going to be a bailiff standing behind [defendant] and up against the
wall, as well as his legs will be restrained with the ties.

       “[DEFENSE COUNSEL]: I would object to … that show of
security, Your Honor. It’s inappropriate.

        “THE COURT: … [I]t’s appropriate for two reasons, and one is the
jurors, believe me, are going to be very intimidated by having a witness, a
defendant in a murder trial, right within arm[’]s reach of them, and I
guarantee you they are not going to listen to a word that he’s saying.
They’re going to be intimidated if there is not at least a deputy standing
behind, not only for each of the 15, but the court reporter and for my safety
as well. And that will be outside the presence of the jury so they won’t
know. [¶] … [¶]




                                     44.
              “THE DEFENDANT: I will wear any chains. It don’t matter. I
       don’t care. Just don’t cover my mouth. I don’t care what chains I’m
       wearing. I am going to say what I am going to say.”
       After a recess, but before the jury returned to the courtroom, defense counsel
stated his intention to call defendant as his next witness. Counsel noted defendant was
already at the witness stand and wearing some form of shackles (albeit not metal ones),
and there was an officer directly behind him. Counsel reiterated his belief the security
measures constituted a denial of defendant’s due process rights. The court responded:
“And I stated to you that I think it’s important that the jury feel safe under the
circumstances. There’s a bailiff sitting behind him, there’s one at the other corner of the
jury box.” When the jurors returned to the courtroom, they were informed defendant had
already been sworn in.
B.     Analysis
       “[T]he Fifth and Fourteenth Amendments [to the federal Constitution] prohibit the
use of physical restraints visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state interest specific to a particular
trial.” (Deck v. Missouri (2005) 544 U.S. 622, 629.) Under state law, “a defendant
cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s
presence, unless there is a showing of a manifest need for such restraints.” (People v.
Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted; see also § 688 [“No person charged
with a public offense may be subjected, before conviction, to any more restraint than is
necessary for his detention to answer the charge.”].) A defendant’s record of violence
does not by itself justify shackling. (People v. Cunningham (2001) 25 Cal.4th 926, 986;
People v. Duran, supra, at p. 293; but see People v. Medina (1995) 11 Cal.4th 694, 730.)
       “The decision of a trial court to shackle a defendant will be upheld by a reviewing
court in the absence of an abuse of discretion. [Citations.] When the record does not
reflect ‘violence or a threat of violence or other nonconforming conduct’ by the
defendant, a trial court’s order imposing physical restraints will be deemed to constitute


                                               45.
an abuse of discretion. [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at
p. 987.) While the trial court must make its own independent determination of the need
for physical restraints and may not rely solely on the judgment of court security personnel
(People v. Mar (2002) 28 Cal.4th 1201, 1218; People v. Hill, supra, 17 Cal.4th at p. 841)
or on “rumor and innuendo” (People v. Cox (1991) 53 Cal.3d 618, 652, disapproved on
another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22), “[t]he court [is]
not obliged to hold a formal evidentiary hearing on the matter, but [can] base its
determination on factual information properly brought to its attention. [Citation.]”
(People v. Medina, supra, 11 Cal.4th at p. 731.) “In deciding whether restraints are
justified, the trial court may ‘take into account the factors that courts have traditionally
relied on in gauging potential security problems and the risk of escape at trial.’
[Citation.] These factors include evidence establishing that a defendant poses a safety
risk, a flight risk, or is likely to disrupt the proceedings or otherwise engage in
nonconforming behavior. [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 367.)
       In the present case, it appears the trial court made its own independent
determination of the need for physical restraints. However, the record fails to show the
requisite “‘manifest need’” therefor. The reasons given by the trial court were: (1) The
alternate jurors were seated close to the witness stand; (2) Defendant was charged with
murder; (3) The jurors had never been close to someone charged with murder;
(4) Defendant attempted to escape from arresting officers; and (5) There was evidence at
trial that people were afraid of defendant. Despite the fact defendant had been in custody
some three years by the time of trial, however, there was no suggestion on the record that
he had engaged in any violation of rules or orders or any violence once in custody, or was
likely to disrupt the proceedings or engage in nonconforming behavior in the courtroom.
The reasons stated by the court were insufficient to justify physical restraints in the jury’s
presence. (Compare People v. Seaton (2001) 26 Cal.4th 598, 652 with People v. Lomax
(2010) 49 Cal.4th 530, 559-560, 562; People v. Gamache, supra, 48 Cal.4th at pp. 368-

                                              46.
370; People v. Wallace (2008) 44 Cal.4th 1032, 1049-1050; People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1032; People v. Cunningham, supra, 25 Cal.4th at pp. 987-988;
People v. Hawkins (1995) 10 Cal.4th 920, 937, 943-944, overruled on other grounds in
People v. Lasko (2000) 23 Cal.4th 101, 110 & People v. Blakeley (2000) 23 Cal.4th 82,
89; People v. Pride (1992) 3 Cal.4th 195, 231-233; People v. Livaditis (1992) 2 Cal.4th
759, 773-774; People v. Sheldon (1989) 48 Cal.3d 935, 945-946.)
       We recognize a trial court is entitled to take a cautious approach in light of all the
information before it, and is not required to wait until confronted with a violent or
disruptive incident in front of the jury before ordering restraints. (See People v. Pride,
supra, 3 Cal.4th at p. 233.) In addition, the decision to impose physical restraints need
not be based on the conduct of the defendant at the time of trial. (People v. Livaditis,
supra, 2 Cal.4th at p. 774.) In defendant’s case, however, there was absolutely no
evidence of violence or nonconforming conduct, or planned violence or nonconforming
conduct, that “would disrupt the judicial process if unrestrained .…” (People v. Duran,
supra, 16 Cal.3d at p. 293, fn. 11.)28 Accordingly, the trial court abused its discretion in
ordering defendant physically restrained in the jury’s presence. (See People v. Seaton,
supra, 26 Cal.4th at p. 652.)
       Defendant does not contend the erroneous shackling was itself prejudicial, since,
as he acknowledges, the restraints were not visible to the jury. The California Supreme

28      We are cognizant of the circumstances surrounding defendant’s arrest.
Attempting to avoid being taking into custody in the first place does not, without more,
indicate an individual will seek to escape or otherwise be nonconforming once he or she
is already in custody, however.
        As discussed in part V, post, defendant made several motions to substitute
counsel, all of which were heard by the judge who presided at trial. Having reviewed the
confidential reporter’s transcripts of the hearings on those motions, we think it possible
the trial court was concerned that defendant frequently seemed agitated during his pretrial
appearances, and allegedly threatened to head butt his first attorney. If this was the case,
however, the trial court should have placed those concerns and reasons on the record.



                                             47.
Court has consistently found unjustified shackling harmless under such circumstances.
(People v. Foster (2010) 50 Cal.4th 1301, 1322; People v. Anderson (2001) 25 Cal.4th
543, 596.)29 Rather, defendant contends the trial court abused its discretion by posting
extra security guards near defendant during his testimony, when defendant was already
physically restrained.
       “Many courtroom security procedures are routine and do not impinge on a
defendant’s ability to present a defense or enjoy the presumption of innocence.
[Citation.] However, some security practices inordinately risk prejudice to a defendant’s
right to a fair trial and must be justified by a higher showing of need. For example,
visible physical restraints like handcuffs or leg irons may erode the presumption of
innocence because they suggest to the jury that the defendant is a dangerous person who
must be separated from the rest of the community. [Citations.] Because physical
restraints carry such risks, their use is considered inherently prejudicial and must be
justified by a particularized showing of manifest need. [Citations.]” (People v.
Hernandez (2011) 51 Cal.4th 733, 741-742 (Hernandez).)
       “[T]he stringent showing required for physical restraints like shackles is the
exception, not the rule. Security measures that are not inherently prejudicial need not be
justified by a demonstration of extraordinary need. [Citations.]” (People v. Stevens
(2009) 47 Cal.4th 625, 633-634 (Stevens).) Such security measures, which include the
stationing of law enforcement officers in the courtroom and the presence of a uniformed
deputy at the witness stand during a defendant’s testimony, will be upheld “when based
on proper exercises of discretion.” (Id. at pp. 634, 638; accord, Holbrook v. Flynn (1986)
475 U.S. 560, 568-569; People v. Marks (2003) 31 Cal.4th 197, 224.) “Because security


29     Accordingly, we need not decide whether defendant’s offer to “wear any chains”
overrode his attorney’s objection and thereby forfeited appellate review of the trial
court’s shackling order. (See People v. Manibusan (2013) 58 Cal.4th 40, 85.)



                                             48.
officers are now ‘ordinary and expected’ in the courtroom [citation], jurors may view the
sight of an officer accompanying the defendant to the witness stand as nothing more than
a routine measure. [Citations.] Although a deputy’s presence next to a testifying
defendant may be viewed as a defendant-focused practice when officers do not
accompany other witnesses to the stand, the Supreme Court has made it clear that not
‘every practice tending to single out the accused from everyone else in the courtroom
must be struck down.’ [Citation.] ‘Recognizing that jurors are quite aware that the
defendant appearing before them did not arrive there by choice or happenstance,’ the high
court stressed that it has ‘never tried, and could never hope, to eliminate from trial
procedures every reminder that the State has chosen to marshal its resources against a
defendant to punish him for allegedly criminal conduct.’ [Citation.]” (Stevens, supra, 47
Cal.4th at p. 638, quoting Holbrook v. Flynn, supra, 475 U.S. at p. 567.) “[S]o long as
the deputy maintains a respectful distance from the defendant and does not behave in a
manner that distracts from, or appears to comment on, the defendant’s testimony, a
court’s decision to permit a deputy’s presence near the defendant at the witness stand is
consistent with the decorum of courtroom proceedings.” (Stevens, supra, at p. 639, fn.
omitted.)
       “Although … a heightened showing of manifest need is not required to justify the
stationing of a security officer near the witness stand, the responsibility of the trial court
remains the same. The court may not defer decisionmaking authority to law enforcement
officers, but must exercise its own discretion to determine whether a given security
measure is appropriate on a case-by-case basis. [Citations.] Under Holbrook [v. Flynn],
supra, 475 U.S. at page 570, the trial court has the first responsibility of balancing the
need for heightened security against the risk that additional precautions will prejudice the
accused in the eyes of the jury.… The trial court should state its reasons for stationing a
guard at or near the witness stand and explain on the record why the need for this security
measure outweighs potential prejudice to the testifying defendant. In addition, although

                                              49.
we impose no sua sponte duty for it to do so, the court should consider, upon request,
giving a cautionary instruction, either at the time of the defendant’s testimony or with
closing instructions, telling the jury to disregard security measures related to the
defendant’s custodial status. [Citation.]” (Stevens, supra, 47 Cal.4th at p. 642.)
       In the present case, the trial court exercised its own judgment, on a case-specific
basis, when it ordered one court security officer to be stationed near the witness stand,
and a second officer at the other corner of the jury box, while defendant testified. (See
Stevens, supra, 47 Cal.4th at p. 642.)30 The court expressed concern jurors might
otherwise be intimidated by being so close to a person charged with murder, and so might
not listen to defendant’s testimony. These concerns were valid and based on the present
case. (Compare Stevens, supra, 47 Cal.4th at pp. 642-643 with Hernandez, supra, 51
Cal.4th at p. 743.)
       Depending on the circumstances, a trial court may properly order the use of more
than one type of security measure. (See, e.g., People v. Gamache, supra, 48 Cal.4th at
pp. 368-370.) We need not decide whether the trial court abused its discretion by doing
so here, because defendant has not established prejudice.
       In Hernandez, supra, 51 Cal.4th at page 746, the California Supreme Court
determined that, because the stationing of a security officer at the witness stand during an
accused’s testimony is not an inherently prejudicial practice, a trial court’s abuse of
discretion in doing so does not rise to the level of a constitutional violation, but rather is
an error of state law properly reviewed under Watson, supra, 46 Cal.2d at page 836.31


30     Since defendant was already seated at the witness stand when the jury returned to
the courtroom, jurors were not confronted with the sight of a uniformed officer actually
accompanying him to the stand.
31     Defendant disagrees with Hernandez’s conclusion and argues the Chapman
standard should apply. We are, of course, bound to follow Hernandez. (Auto Equity
Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)



                                              50.
Employing that standard here, we conclude it is not reasonably probable defendant would
have obtained a more favorable result absent the error, if error there was. Nothing in the
record suggests the security officer sat too close to defendant or acted in any way that
might have been construed as expressing an opinion on defendant’s testimony or
credibility. (See Hernandez, supra, at p. 746.) Because defendant’s leg restraints were
not visible, jurors were unaware defendant was being subjected to doubly heightened
security. They were aware from testimony at trial, however, that defendant had been
violent in the past and some of the witnesses were afraid of him. Thus, the stationing of
an officer at the witness stand and one at the other end of the jury box was not likely to
give jurors any different or worse impression of defendant than the trial evidence. The
security measures clearly did not affect the quality of defendant’s testimony; the record
shows he answered questions without hesitation or distraction, even at one point offering
to help his attorney when counsel either was looking for something or trying to decide
how to approach a subject. Moreover, the case against defendant was quite strong.
                                             IV
                                CUMULATIVE PREJUDICE
       Defendant says the errors in this case cumulatively prejudiced his Fourteenth
Amendment right to a fair trial. We disagree. Although we have found some errors and
assumed others, none constitutes cause for reversal, whether considered singly or in
conjunction with the others. (See People v. Abel (2012) 53 Cal.4th 891, 936.) Defendant
was not entitled to a perfect trial, only a fair one. (People v. Cunningham, supra, 25
Cal.4th at p. 1009.) He received it.
                                             V
                  POSTVERDICT MOTION FOR SUBSTITUTE COUNSEL
       Defendant contends the trial court abused its discretion by denying his postverdict
request for substitute counsel to make a new trial motion. He says this case warranted
appointment of substitute counsel “to evaluate a new trial motion based on counsel’s

                                            51.
performance with regard to the psychological evaluation he obtained.” He asks us to
remand his case for the appointment of new counsel to file a new trial motion. We find
no error.
A.     Background
       The public defender’s office was appointed to represent defendant at his initial
arraignment on September 29, 2008. On January 26, 2009, defendant moved, pursuant to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to have substitute counsel appointed.
His motion was denied without prejudice to making it again after he had further
opportunity to talk to counsel. On March 20, 2009, defendant renewed his motion, which
was granted. New counsel was appointed, and it was this attorney who represented
defendant through the remainder of the proceedings.
       On March 24, 2011, defendant again made a Marsden motion. Before ruling, the
court gave defendant and defense counsel the opportunity to speak together. When
proceedings resumed, defense counsel declared a doubt as to defendant’s competence
(§ 1368) and criminal proceedings were suspended.
       After defendant was found competent and proceedings were reinstated, the matter
progressed to trial. As described in the statement of facts, ante, defendant presented
expert testimony concerning his claimed mental disorders. In her cross-examination of
Dr. Monroe, the prosecutor elicited that in reaching her diagnoses of defendant, Monroe
did not administer any psychological tests, including for malingering. Monroe stated it
was not her role to do testing. The prosecutor also elicited that Monroe did not assess
defendant for Axis II personality disorders such as antisocial personality disorder.32 The
prosecutor questioned Monroe at length concerning whether defendant met the diagnostic


32    The prosecutor and Monroe were referring to diagnostic axes and criteria set out in
the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000, text revision), also known as the DSM-IV-TR.



                                            52.
criteria for antisocial personality disorder and on the concept of malingering. In her
summation to the jury, the prosecutor attacked the validity of Monroe’s diagnoses in part
on the grounds Monroe relied on information that came from defendant, Harris, and
defendant’s brother, rather than also interviewing other people who had known defendant
for a long time; she conducted no diagnostic testing to determine whether defendant’s
reported symptoms were real or to check for malingering; and she chose not to perform
an analysis for antisocial personality disorder despite the fact defendant met the criteria
therefor.
       At the conclusion of the bifurcated court trial on defendant’s prior convictions,
defense counsel informed the court that defendant wished to make a Marsden motion.
Defendant clarified he wanted time to hire his own attorney. The court suggested the
Marsden motion was premature, and ultimately continued the matter several times to
accommodate defendant.
       On June 5, 2012, trial counsel was relieved and private counsel substituted in as
the attorney of record. The matter was continued to June 19, 2012, in order to afford new
counsel the opportunity to review the record, and with the understanding the case would
be on calendar for the possible setting of a motion for new trial. On June 19, 2012,
private counsel was relieved, because he had not in fact been retained and defendant did
not have the financial ability to hire an attorney, and trial counsel was reappointed.
Because counsel was not prepared to proceed, the case was continued to July 9, 2012.
       On July 9, 2012, defendant made another Marsden motion. He asserted defense
counsel “rushed” him to trial and sentencing, and “sabotaged” his case “with no complete
evidence to defend” him. Defendant claimed he was receiving ineffective assistance of
counsel, in pertinent part because defense counsel refused to file various motions
defendant requested (including a motion for a new trial) and refused to give Monroe
proper instructions to perform a full mental evaluation on defendant.



                                             53.
       Counsel addressed the various issues raised by defendant, and mentioned that he
filed several motions during the course of trial on issues he believed had merit. With
respect specifically to Monroe, this took place:

             “[DEFENSE COUNSEL:] My client was examined by a
       psychiatrist, actually, two psychiatrists, I believe, Your Honor, one
       pursuant to the motion to the 1368, and second, he was examined by Dr.
       Monroe.

              “THE DEFENDANT: I was questioned, no test, just questions,
       interview questions, that’s all. [¶] … [¶]

               “[DEFENSE COUNSEL]: That is what was done, and that is called
       a clinical evaluation by a psychologist.

              “THE DEFENDANT: She didn’t even make what I said was true,
       she just said what I told her. [¶] … [¶]

               “[DEFENSE COUNSEL]: And that is where -- that was done, and,
       yes, I got feedback in that area. And what more needed to be done, I don’t
       know.”
       After further discussion, the trial court opined defense counsel worked very hard
on defendant’s trial, filed a lot of motions, and was very sensitive to the medical issues
defendant had at times. The court explained defense counsel was the attorney and was
not required to file motions he did not believe had merit. The court acknowledged
defendant’s frustration with the process, but observed things such as what questions to
ask witnesses were tactical decisions on counsel’s part. The court found no grounds for
granting defendant’s Marsden motion.
B.     Analysis
       The applicable rules are well 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
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


                                             54.
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, supra, 45 Cal.4th at p. 421, fn. 22;
accord, People v. Taylor (2010) 48 Cal.4th 574, 599; 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,” the California Supreme
Court has made it clear that “[a] defendant has no greater right to substitute counsel at the
[postconviction] stage than the [preconviction stage].” (Id. at p. 694.)
       “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 had their
basis primarily in tactical disagreements between defendant and counsel. Although

                                              55.
Monroe’s conducting a full psychological evaluation of defendant would have prevented
the prosecutor from attacking her diagnoses and opinions based on her failure to test for
malingering and to consider antisocial personality disorder, defense counsel was well
aware of what a clinical evaluation entailed. Prosecutorial attack based on failure to test
is weaker than prosecutorial argument based on an actual diagnosis of malingering or
antisocial personality disorder. Moreover, that counsel reasonably might have chosen a
different tactic does not mean the tactic chosen was unreasonable and, accordingly,
inadequate, especially where hindsight is involved. (See People v. Jennings (1991) 53
Cal.3d 334, 379-380.)
       Defendant points to defense counsel’s statement that he did not know what more
needed to be done as having “exposed likely deficient performance in not requesting a
complete evaluation of [defendant] and no acknowledgement that as a result of the
incomplete evaluation, the prosecutor greatly attacked and weakened [defendant’s]
mental state defense.” We do not read counsel’s statement so literally, in light of its
context. It is apparent to us (taking into account not only what was discussed at the
Marsden hearing, but also the manner in which defense counsel presented and argued
Monroe’s testimony to the jury at trial) that counsel understood Monroe’s opinions would
be subject to attack, but presented them anyway because he believed they ultimately were
favorable to defendant. (See Beardslee v. Woodford (9th Cir. 2004) 358 F.3d 560, 583.)
       Defendant observes that he was not required to establish ineffective assistance of
counsel at the hearing on his motion; rather, he was only required to show that a failure to
appoint substitute counsel would substantially impair his right to the assistance of counsel
in making a motion for new trial. We agree defendant was not required to establish
constitutionally inadequate representation at this stage. (People v. Stewart (1985) 171
Cal.App.3d 388, 395, disapproved on another ground in People v. Smith, supra, 6 Cal.4th




                                            56.
at p. 694.)33 He was, however, required to establish that a failure to replace defense
counsel would substantially impair his right to the assistance of counsel. (People v.
Smith, supra, at pp. 690-691.) It is not enough for a defendant merely to show trial
counsel could have done something differently. “A series of attorneys presenting
groundless claims of incompetence at public expense, often causing delays to allow
substitute counsel to become acquainted with the case, benefits no one. The court should
deny a request for new counsel at any stage unless it is satisfied that the defendant has
made the required showing. This lies within the exercise of the trial court’s discretion,
which will not be overturned on appeal absent a clear abuse of that discretion.” (Id. at
p. 696.)
       As for the possibility a reasonably competent trial attorney might have been
concerned a complete psychological evaluation could reveal a more damaging diagnosis,
defendant says this was not defense counsel’s tactic, as shown by the fact counsel did not
give this reason when explaining his conduct during the Marsden hearing. Although
defense counsel did not expressly state he made a tactical decision in having Monroe
perform a clinical rather than a full evaluation, we believe the tactical nature of his

33     “To prevail on a claim of deprivation of effective assistance of counsel, a
defendant must show that trial counsel’s performance was deficient under a standard of
reasonableness. [Citation.] He must also show that prejudice resulted. Although in
certain contexts prejudice is presumed, generally, a ‘defendant must show that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”’ [Citation.]” (People v. Staten
(2000) 24 Cal.4th 434, 450-451.) Because judicial scrutiny of counsel’s performance
must be highly deferential, surmounting this “high bar is never an easy task. [Citations.]”
(Padilla v. Kentucky (2010) 559 U.S. 356, 371-372.)
      A trial court is not always required to consider a claim of ineffective assistance of
counsel in a motion for new trial. It should do so when justice will be expedited by such
consideration. There are cases, however, in which habeas corpus is more suited to the
circumstances. (People v. Cornwell (2005) 37 Cal.4th 50, 100-102, disapproved on
another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)



                                             57.
decision is implicit in what he said. Defendant further says that had a full evaluation
been damaging, defense counsel would have had no obligation to turn over the evaluation
to the prosecution and call Monroe as a witness (see § 1054.3, subd. (a)(1)), but could
have obtained another evaluation. However, “[c]ompetent representation does not
demand that counsel seek repetitive examinations of the defendant until an expert is
found who will offer a supportive opinion.” (People v. Williams (1988) 44 Cal.3d 883,
945.) And, even if defense counsel could have obtained a favorable full evaluation, this
does not mean his expert would have been impervious to prosecutorial attack, be it with
regard to methodology, conclusions, or both. Moreover, under such circumstances the
prosecution may well have insisted on having defendant examined and/or tested by its
own expert (§ 1054.3, subd. (b); Sharp v. Superior Court (2012) 54 Cal.4th 168, 171; see
Evid. Code, § 730), which could have adversely affected defendant’s protections under
the Fifth and Sixth Amendments (see generally Maldonado v. Superior Court (2012) 53
Cal.4th 1112).
       To summarize, we conclude the trial court acted well within its discretion by
denying defendant’s Marsden motion.
                                     DISPOSITION
       The judgment is affirmed.
                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


 _____________________
 CORNELL, Acting P.J.


 _____________________
 GOMES, J.




                                            58.
