Filed 9/27/13 P. v. Combs CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A130068
v.
GENE ALLEN COMBS,                                                    (Solano County
                                                                     Super. Ct. No. FCR259239)
         Defendant and Appellant.


         Defendant Gene Allen Combs was convicted of second degree murder as an aider
and abettor of the killing of Fairfield city councilman Matt Garcia by Henry Don
Williams. He contends insufficient evidence supported the verdict, the jury was
improperly instructed, and the trial court erred in denying his motions for change of
venue, judgment of acquittal and change of attorney. He also maintains the court erred in
commenting on the evidence, and that cumulative errors require reversal. We conclude
there was no prejudicial error, and affirm.
                                                   BACKGROUND
         Defendant was friends with Williams,1 and the latter introduced him to his cocaine
and methamphetamine dealer Ryan Estes, who lived on Silverado Drive in Fairfield.
         Around 3:30 p.m. on Labor Day, 2008, defendant called Estes and asked to buy
methamphetamine. The men met about 20 minutes later, and defendant gave Estes $50 to
obtain the drugs. When Estes failed to show up an hour later as agreed, defendant called
         1
         Williams was tried separately and convicted of first degree murder. His
conviction was affirmed in case No. A130138.


                                                             1
Estes and sounded ―a little irritated.‖ Estes told him it would take another hour. Estes
did not obtain the drugs, but instead bought beer and went to a party.
       Around 7:00 p.m., defendant called Williams and told him ―he had been ripped off
by his buddy for 50 bucks.‖ Williams told him Estes was at home, but there were ―a
couple of guys there‖ and he ―shouldn‘t go alone.‖ Defendant was intimidated by Estes
because he was ―a big guy.‖ The two made plans to meet at a Popeye‘s Chicken and then
go together to Estes‘s house. Defendant met Williams at the restaurant and got in the
back seat of his car. Nicole Stewart, Williams‘s pregnant girlfriend, was driving.
Williams told defendant that Estes had recently ―shorted‖ him on a bag of drugs, ―[s]o
[Williams] was upset also.‖ They agreed to go to Estes‘s house and ―confront him.‖
       Defendant was ―pissed‖ and continued to call Estes on the way to his house.
Stewart parked the car across the street from Estes‘s house. Williams went to the door,
carrying a black box Stewart had seen before ―around the house.‖ Williams returned to
the car after talking with Estes‘s sister, and indicated Estes was not at home. Defendant
said ― ‗Well, we‘ll catch him later.‘ ‖
       Stewart drove down Silverado Drive and stopped at a stop sign. A car
approached, and defendant and Williams ―were wondering‖ whether Estes might be in it.
Defendant said the car had turned around in front of Estes‘s house, and had flashed its
lights. Defendant and Williams ―were still talking back and forth if it could be [Estes].‖
Both men were still upset and angry. Williams told Stewart to pull over, and got out of
the car, while defendant remained inside. Stewart then heard three popping sounds from
behind her. Williams returned and defendant told her to start the car.
       Williams got back in the car, holding his shirt in his hands. He was using the shirt
to rub something, which Stewart thought was a gun. Defendant told him to ―put it
somewhere in the front of the car‖ by the motor, because it ―cleans off the fingerprints,‖
but Williams said he was going to throw it in the bushes.
       Williams told Stewart to drive them to his mother‘s house. When they arrived,
Williams went instead to the house of Francisco Perez, a neighbor. Defendant got in the
front seat of the car, and Stewart drove him back to his car, which he had left at Popeye‘s.


                                             2
Williams gave the gun and his shirt to Perez and asked him to ―dispose of the gun.‖
Perez threw it ―into the water‖ by the Benicia Bridge.
       Defendant first learned someone had been killed on Silverado Drive the next
morning when he was watching the news. Matt Garcia, a Fairfield city councilman, died
after being shot in front of a friend‘s house on Silverado Drive. It ―dawned on
[defendant] . . . ‗Oh, wait a minute . . . we were out there last night.‘ ‖ Defendant told a
friend he thought Williams ―shot that councilman last night.‖
       Defendant contacted the police about a week and a half later, telling them ―I know
who shot the councilman. I was with that person who did it.‖ He told district attorney
investigator Kurtis Cardwell he was ―[a]ngry, frustrated, upset [and] pissed off‖ about
being ―ripped off‖ by Estes. Defendant admitted leaving Estes phone messages in which
he cursed at Estes and threatened to burn his house and car down. He also left Estes a
message around 10:30 p.m. on Labor Day stating ― ‗[t]hose bullets down the street, nigga,
were meant for you.‘ ‖
       Defendant also told Caldwell he had ―brokered a deal [for Williams] to purchase a
gun‖ weeks before the murder. Defendant testified he drove with Williams to purchase
the gun because defendant knew the seller but Williams did not. When they arrived,
Williams gave defendant the money for the gun, and defendant went inside the seller‘s
house while Williams waited in the vehicle. Defendant gave the money to the seller and
took the gun back to Williams. He asked Williams, ― ‗How do you know that thing even
works?‘ ‖ and Williams pointed it at him and said ― ‗How about I try it on you?‘ ‖
Defendant felt ―uncomfortable‖ and told him he was going to walk home. Defendant
agreed Williams ―had a . . . propensity to want to point that gun at somebody.‖
       Defendant told Cardwell ―he knew Henry Williams had a gun . . . when . . .
Williams was walking up to Estes‘[s] house in Cordelia that night.‖ Defendant testified,
however, he was lying when he told police Williams went to Estes‘s front door with a
black box, a bag, or what could have been a gun because he ―was under the impression
[he] was going to be released for cooperating with the police.‖ He testified the next time



                                              3
he saw the gun after its purchase was ―when Mr. Williams had got into the car after the
shooting.‖
       A jury convicted defendant of second degree murder.
                                         DISCUSSION
Substantial Evidence
       The prosecutor argued defendant aided and abetted Williams in committing three
target offenses—attempted extortion, brandishing a firearm and assault with a deadly
weapon—and the murder was a natural and probable consequence of any of those
offenses. Defendant maintains there was no substantial evidence he aided and abetted
any of those offenses.
       ― ‗To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.‘ [Citation.]‖ (People v. Bolden (2002) 29 Cal.4th 515, 553.) ― ‗The standard of
review is the same in cases in which the People rely mainly on circumstantial evidence.
[Citation.] ―Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant‘s guilt beyond a reasonable doubt. ‗ ―If the circumstances
reasonably justify the trier of fact‘s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.‖ ‘ [Citations.]‖ [Citations.]‘ [Citations.] The
conviction shall stand ‗unless it appears ―that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].‖ ‘ [Citation.]‖ (People v.
Cravens (2012) 53 Cal.4th 500, 507–508.)
       ― ‗[A] person aids and abets the commission of a crime when he or she, acting
with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or
purpose of committing, encouraging, or facilitating the commission of the offense, (3) by


                                               4
act or advice aids, promotes, encourages or instigates, the commission of the crime.‘
[Citation.] Furthermore, under the ‗ ―natural and probable consequences‖ ‘ doctrine, an
aider and abettor is guilty not only of the offense he or she intended to facilitate or
encourage, but also any reasonably foreseeable offense committed by the person he or
she aids and abets. [Citation.]‖ (People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
295–296.)
       ― ‗ ―A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime. The latter question is not whether the aider and abettor actually foresaw the
additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citation.]‖ [Citation.] Liability under the natural and probable consequences doctrine
―is measured by whether a reasonable person in the defendant‘s position would have or
should have known that the charged offense was a reasonably foreseeable consequence
of the act aided and abetted.‖ [Citation.]‘ [Citations.] A reasonably foreseeable
consequence is a factual issue to be resolved by the jury who evaluates all the factual
circumstances of the individual case.‖ (People v. Favor (2012) 54 Cal.4th 868, 874.)
       ―Aider and abettor culpability under the natural and probable consequences
doctrine for a nontarget, or unintended, offense committed in the course of committing a
target offense has a different theoretical underpinning than aiding and abetting a target
crime. Aider and abettor culpability for the target offense is based upon the intent of the
aider and abettor to assist the direct perpetrator commit the target offense. By its very
nature, aider and abettor culpability under the natural and probable consequences doctrine
is not premised upon the intention of the aider and abettor to commit the nontarget
offense because the nontarget offense was not intended at all. It imposes vicarious
liability for any offense committed by the direct perpetrator that is a natural and probable
consequence of the target offense. (People v. Garrison (1989) 47 Cal.3d 746, 778 . . .
[accomplice liability is vicarious].) Because the nontarget offense is unintended, the
mens rea of the aider and abettor with respect to that offense is irrelevant and culpability


                                              5
is imposed simply because a reasonable person could have foreseen the commission of
the nontarget crime.‖ (People v. Canizalez (2011) 197 Cal.App.4th 832, 852.) ―[I]n
determining whether a collateral criminal offense was reasonably foreseeable to a
participant in a criminal endeavor, consideration is not restricted to the circumstances
prevailing prior to or at the commencement of the endeavor, but must include all of the
circumstances leading up to the last act by which the participant directly or indirectly
aided or encouraged the principal actor in the commission of the crime.‖ (People v.
Nguyen (1993) 21 Cal.App.4th 518, 532.)
       Defendant concedes he committed one of the target offenses, the crime of
attempted extortion, either by telephoning Estes and threatening to burn down his home
and car if his money was not returned, or by aiding and abetting Williams when he went
to Estes‘s house. He claims, however, he ―could not be guilty of murder under a natural
and probable consequence theory because the shooting did not occur during the
commission of the attempted extortion,‖ relying on People v. Cooper (1991) 53 Cal.3d
1158 (Cooper).
       Cooper is inapposite because it did not consider the natural and probable
consequences doctrine. The issue in Cooper was whether the defendant could be guilty
of aiding and abetting a robbery if the jury determined he ―did not form the requisite
intent to facilitate or encourage commission of the robbery prior to the robbers‘ flight
with the stolen property.‖ (Cooper, supra, 53 Cal.3d at p. 1160.) Cooper did not address
the issue of whether a non-target offense can only be a natural and probable consequence
of the target offense if it is committed during commission of the target offense. Indeed, a
―defendant may be convicted under the natural and probable consequences doctrine even
if the target criminal act . . . was not committed.‖ (People v. Ayala (2010)
181 Cal.App.4th 1440, 1443 (Ayala).)
       In Ayala, the defendant was convicted of second degree murder under the natural
and probable consequences theory of aiding and abetting an assault. (Ayala, supra,
181 Cal.App.4th at p. 1443.) The defendant was driving a carload of his fellow gang
members when they passed a group of men they perceived to be rival gang members. (Id.


                                             6
at p. 1444.) The car occupants asked defendant to drive by again, and he knew ― ‗there
was gonna be some . . . gang related ass shit.‘ ‖ (Id. at p. 1445.) The defendant knew
there was a baseball bat in the car, and thought the car occupants were going to beat the
men with it. (Ibid.) Instead, one of them got out of the car with a gun and shot the
victim. (Ibid.) The court held the fatal shooting was ―a natural and probable
consequence of a planned physical attack by multiple gang members upon perceived rival
gang members even though the shooting occurred at the start of the confrontation and no
assault . . . preceded the shooting. . . . An aider and abettor may be liable where he
intentionally aids one criminal act but the perpetrator actually commits some other, more
serious criminal act that is reasonably foreseeable.‖ (Id. at p. 1443.)
        The court in People v. Medina (2009) 46 Cal.4th 913 (Medina) considered a
situation comparable to that demonstrated by the evidence here. In Medina, the
defendant and two fellow gang members ―challenged‖ a member of another gang and
then engaged in a fistfight. (Id. at pp. 917, 922.) After the fistfight ended, someone
yelled ―get the heat‖ (meaning a gun), and the defendant shot and killed the victim as he
was driving away from the scene of the fight. (Id. at p. 917.) The Supreme Court
reversed the Court of Appeal, which had concluded there was insufficient evidence the
nontarget offense was a natural and probable consequence of the target offense of simple
assault because ―the shooting occurred after the fistfight had ended.‖ (Id. at pp. 916,
922.) Explaining ― ‗the ultimate factual question is one of foreseeability,‘ ‖ the court
held ―the evidence shows there was a close connection between the failed assault against
[the victim] . . . and the murder of [the victim] . . . and the shooting and death were ‗ ―not
an unreasonable result to be expected from the [assault].‖ ‘ [Citation.]‖ (Id. at pp. 920,
925.)
        The evidence here similarly showed a close connection between the target and
non-target offenses. Defendant knew Williams owned a gun and had a propensity to use
it prior to calling him to get his help in getting money or drugs from Estes. Defendant
was intimidated by Estes, and Williams told him not to go to Estes‘s house alone.
Defendant told police he believed Williams had a gun when he was walking up to Estes‘s


                                              7
house. When Williams returned to the car after speaking with someone at Estes‘s house
and learning he was not there, defendant said ― ‗Well, we‘ll catch him later.‘ ‖ Minutes
later, as they drove away from Estes‘s home, defendant and Williams had a discussion
about whether Estes was in a car that drove by and flashed its lights. They pulled over,
and Williams exited the car and shot Garcia, thinking he was Estes. There was
substantial evidence from which the jury could conclude the killing of a man thought to
be Estes was a reasonably foreseeable result of the admitted attempted extortion2 of Estes
minutes earlier on the same street. 3
Jury Instructions
       CALCRIM No. 1830
       The court instructed the jury with CALCRIM No. 1830 on the elements of
extortion, but did not instruct with CALCRIM No. 460 on the meaning of attempt in
relation to the target offense of extortion.4 Defendant failed to request such instruction,
but claims any error was not forfeited because the lack of instruction deprived him of due
process.

       2
          Given our conclusion there was substantial evidence of attempted extortion, we
need not and do not reach the issue of whether there was also substantial evidence of
assault and brandishing.
        3
          Defendant claims his conviction must be reversed because ―there is no way of
knowing upon which theory of criminal liability the jury decided the case, the attempted
extortion theory, the assault theory, or the brandishing theory,‖ relying on People v.
Guiton (1993) 4 Cal.4th 1116, 1122, 1129–1130 (Guiton). Guiton is inapposite, because
the jury was tasked with the factual determination of whether any one of the three target
offenses were committed, and was not required to agree unanimously on the target
offense. (People v. Santamaria (1994) 8 Cal.4th 903, 918–919.) ―If the inadequacy of
proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not
required whenever a valid ground for the verdict remains, absent an affirmative
indication in the record that the verdict actually did rest on the inadequate ground. But if
the inadequacy is legal, not merely factual, that is, when the facts do not state a crime
under the applicable statute, . . . the . . . rule requiring reversal applies, absent a basis in
the record to find that the verdict was actually based on a valid ground.‖ (Guiton, supra,
at p. 1129.)
        4
          The jury instruction was titled ―Attempted Extortion By Threat Or Force (Pen.
Code § 524),‖ but did not define ―attempt.‖


                                               8
       However, the meaning of ―attempt‖ is one the jury could readily understand
without specific instruction. Indeed, the California Supreme Court has held the
instruction on attempt with respect to attempted robbery, CALJIC No. 6.00, ― ‗merely
restates the common meaning of ―attempt,‖ ‘ which is ‗to ―try‖ or ―endeavor to do or
perform‖ the act.‘ [Citation.]‖ (People v. Lynch (2010) 50 Cal.4th 693, 763 (Lynch);
overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.)
Further, defendant has demonstrated no prejudice or violation of due process, given his
concession he ―committed the crime of attempted extortion.‖5
       CALCRIM No. 400
       Defendant also asserts the trial court erred in instructing the jury with an outdated
version of CALCRIM No. 400, which included the statement an aider and abettor is
―equally guilty of the crime.‖ To begin with, defendant failed to object. ―[T]o the extent
[defendant] believed that the instruction was inaccurate in the facts presented in this case,
he was obliged to object to it or to request clarification or modification, which he failed
to do. He has therefore forfeited his claim as to CALCRIM No. 400.‖ (People v.
Canizalez, supra, 197 Cal.App.4th at p. 849.)
       Further, while the language of which defendant complains was removed in the
2011 version of the instruction (People v. Lopez (2011) 198 Cal.App.4th 1106, 1119,
fn. 5), ―the statement in CALCRIM No. 400 that an aider and abettor is ‗equally guilty‘
with the direct perpetrator of the target crime ‗is generally an accurate statement of law.‘
[Citation.]‖ (People v. Canizalez, supra, 197 Cal.App.4th at p. 849.) ―If the jury found
either appellant guilty only as an aider and abettor under the natural and probable
consequence doctrine, the ―equally guilty‖ statement is also correct.‖ (Id. at p. 850.)
Accordingly, there was no error in connection with giving of this instruction.




       5
         His claim in regard to attempted extortion is that the court failed to provide the
jury with guidance as to when the attempted extortion was complete, not that an attempt
did not occur.


                                              9
       CALCRIM No. 401
       As we have recounted, after learning Estes was not at home on the night of the
murder, defendant said to Williams: ―That‘s okay. We will catch him later.‖ Claiming
his statement to Williams constituted withdrawal from the crime of attempted extortion,
defendant contends the trial court had a sua sponte duty to instruct with the portion of
CALCRIM No. 401 on withdrawal, a defense to aiding and abetting, and failure to do so
violated his due process rights.
       In order for that defense to apply: ―(1) the aider and abettor must notify everyone
else he knows is involved in the commission of the crime that he is no longer
participating and (2) that notification must be made early enough to prevent the
commission of the crime.‖ (People v. Battle (2011) 198 Cal.App.4th 50, 67.)
       Defendant‘s statement they would ―catch‖ Estes later was neither a notification
defendant was no longer participating in the attempted extortion, nor made early enough
to prevent commission of the crime. In fact, the statement suggested the attempted
extortion was continuing. And, defendant‘s telephone message to Estes about an hour
after the murder that ―those bullets were meant for you‖ further indicated defendant had
not withdrawn, but was continuing to pursue the attempted extortion. There was, in sum,
no substantial evidence of withdrawal. The trial court therefore had no sua sponte duty to
instruct on that defense, (People v. Fiu (2008) 165 Cal.App.4th 360, 383) and the lack of
such instruction did not violate defendant‘s due process rights. (People v. Jenkins (2000)
22 Cal.4th 900, 986.)
       Failure to Instruct on Manslaughter
       Defendant also contends the trial court erred in not instructing, sua sponte, on
manslaughter, claiming ―[w]ithout instructions on lesser included offenses the jury could
not determine which, if any, of Williams‘s acts were reasonably foreseeable to [him]
. . . .‖ A conviction for murder requires the commission of an act that causes death, done
with the mental state of malice aforethought, either express or implied. (§§ 187, 188.)
―Express malice is an intent to kill. [Citation.] Implied malice does not require an intent
to kill. Malice is implied when a person willfully does an act, the natural and probable


                                             10
consequences of which are dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses.‖ (People v. Gonzalez (2012)
54 Cal.4th 643, 653.)
       Sua sponte instruction on a lesser included offense is required only if ―there is
substantial evidence, that, if accepted, would absolve the defendant from guilt of the
greater offense but not the lesser.‖ (People v. Waidla (2000) 22 Cal.4th 690, 737.)
Williams fired multiple gunshots at Garcia, either intending to kill the man he thought
was Estes, or intentionally shooting him, the natural and probable consequences of which
were dangerous to human life. There was no evidence suggesting a mental state that did
not include express or implied malice. Accordingly, there was no sua sponte duty to
instruct on that defense, (People v. Fiu, supra, 165 Cal.App.4th at p. 383) and the lack of
such instruction did not violate defendant‘s due process rights. (People v. Jenkins, supra,
22 Cal.4th at p. 986.)
Denial of Motion for Acquittal
       Defendant maintains the trial court also erred in denying his motion for acquittal
under section 1118.1 because there was no substantial evidence he knew Williams had a
gun, and Williams‘s shooting of Garcia took place after the attempted extortion had
―already been completed.‖ As we have already discussed, substantial evidence supports
defendant‘s conviction for aiding and abetting. Accordingly, defendant‘s motion was
properly denied.
Court’s Comments on the Evidence
       The court stated to the jury, prior to the prosecutor‘s cross-examination of
defendant, ―I will anticipate the People will have cross-examination of Mr. Combs. And
there may be some Redirect and Recross. And then I think that is going to be the
evidence in the case, which for the most part is pretty uncontroverted.‖ Defendant claims
the ―pretty uncontroverted‖ statement constituted improper comment on the evidence,
usurping the ―jury‘s factfinding prerogative‖ and conveying the court‘s ―belief that
[defendant] was guilty.‖ (Italics omitted.)



                                              11
       ―A trial court is constitutionally empowered to make, in its discretion, ‗[such]
comment on the evidence and testimony and credibility of any witness as in its opinion is
necessary for the proper determination of the cause.‘ (Cal. Const., art. VI, § 10.)‖
(People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.) ― ‗ ―The trial court may not, in the
guise of privileged comment, withdraw material evidence from the jury‘s consideration,
distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury‘s
ultimate factfinding power.‖ ‘ ‖ [Citations.] Thus, a trial court has ‗broad latitude in fair
commentary, so long as it does not effectively control the verdict.‘ [Citation.]‖ (People
v. Monterroso (2004) 34 Cal.4th 743, 780.) ―[A]ppellate courts still must evaluate the
propriety of judicial comment on a case-by-case basis, noting whether the peculiar
content and circumstances of the court‘s remarks deprived the accused of his right to trial
by jury.‖ (People v. Rodriguez (1986) 42 Cal.3d 730, 770.)
       The trial court correctly noted the underlying facts of the murder were essentially
uncontroverted, and defendant acknowledges as much. (―[T]he broad outlines of the case
may have [been] uncontroverted.‖) The issue was primarily the significance of certain
facts, such as whether it was reasonably foreseeable the attempted extortion of Estes
might lead to Williams shooting a person he thought was Estes. Moreover, the court
instructed the jury not to ―take anything I say or do during the trial as an indication of
what I think about the facts, the witnesses, or what your verdict should be. . . .‖ It further
instructed the jury it was to ―decide what the facts are in this case‖ and the jury ―alone
must judge the credibility or the believability of the witnesses.‖ In sum, there was no
improper comment on the evidence that deprived defendant of his right to trial by jury.
Denial of Marsden Motion
       After the jury verdict, defendant filed a Marsden6 motion. He claimed his counsel
was ineffective because, although he had filed a motion to exclude defendant‘s statement
to the police, it was on grounds other than those defendant had suggested. We review the



       6
           People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


                                              12
court‘s denial of the motion for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th
1044, 1085 (Barnett).)
       ― ‗ ― ‗A defendant is entitled to . . . [new appointed counsel] if the record clearly
shows that the first appointed attorney is not providing adequate representation [citation]
or that defendant and counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result [citations].‘ [Citations.]‖ ‘ [Citation.]‖
(Barnett, supra, 17 Cal.4th at p. 1085.) ―[T]he standard expressed in Marsden and its
progeny applies equally preconviction and postconviction.‖ (People v. Smith (1993)
6 Cal.4th 684, 694.)
       At the Marsden hearing, defendant asserted his counsel ―refused to follow [his]
express wishes . . . [he] refused to investigate or file a motion on . . . an implied promise
of leniency that was made . . . that could have made my statements at the September 14th,
15th and 17th, 2008 [police] interviews possibly involuntary and inadmissible in Court.‖
Defendant‘s counsel explained he filed a motion to suppress defendant‘s statements to the
police ―as involuntary, and based on Miranda as well.[7] [¶] . . . [¶] I did not raise this
specific issue. Mr. Combs informed me of this. I did the research on promises of
leniency. The cases on promises of leniency really require, from my reading of them,
more than this, you know. There was nothing in this indicat[ing] that the DA was
involved in this . . . it wasn‘t on the videotape itself, although there were ways we could
potentially have gone around that, but . . . I tried to get the statement thrown out, but the
focus of my motion was primarily on Mr. Combs‘ repeated requests, which I believe, to
invoke his right to silence and his right to counsel.‖
       Defendant‘s counsel explained his reasonable tactical decision to move to suppress
defendant‘s statements on the grounds counsel felt most appropriate. Reasonable tactical
decisions do not constitute ineffective representation. (People v. Fosselman (1983)
33 Cal.3d 572, 581.) Moreover, substitute counsel is not required unless the conflicts

       7
        Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The basis for the motion
was actually that defendant‘s statements were involuntary because after he received
Miranda admonitions, police allegedly told him anything he said was off the record.


                                               13
between attorney and client are ―of such magnitude as to substantially impair defendant‘s
right to the assistance of counsel.‖ (People v. Williams (1970) 2 Cal.3d 894, 905.) There
was no such evidence here. Accordingly, the trial court did not abuse its discretion in
denying the motion.
Motion to Change Venue
       Defendant also claims the trial court erred in denying his motion for change of
venue and, specifically, by not allowing expert testimony about a survey conducted of
Solano County residents about their awareness of the crime.
       ―The court shall order a change of venue: [¶] . . . when it appears that there is a
reasonable likelihood that a fair and impartial trial cannot be had in the county. . . .‖
(Pen. Code, § 1033, subd. (a).) The court considers five factors in making that
determination: ― ‗ ―(1) nature and gravity of the offense; (2) nature and extent of the
media coverage; (3) size of the community; (4) community status of the defendant; and
(5) prominence of the victim.‖ ‘ ‖ (People v. Farley (2009) 46 Cal.4th 1053, 1082
(Farley).) ― ‗ ―We will sustain the court‘s determination of the relevant facts where
supported by substantial evidence. We independently review the court‘s ultimate
determination of the reasonable likelihood of an unfair trial.‖ ‘ [Citation.]‖ (Ibid.)
       Defendant sought to present expert testimony about the results of a survey which
showed 90.5 percent of surveyed Solano residents had heard about the murder. He
maintains expert testimony was necessary so the court would know ―how to interpret the
numbers and would ‗know‘ what the numbers meant.‖ Defendant cites no authority
requiring an evidentiary hearing on a change of venue motion, which in general is held
only if ―necessary to resolve material, disputed issues of fact.‖ (People v. Hedgecock
(1990) 51 Cal.3d 395, 415.) Furthermore, the trial court not only considered the expert‘s
report, it accepted ―what Dr. Bronson says. I accept it on face value. . . . I‘m not . . .
challenging his survey in any way, shape or form. I accept what he has presented.‖
       ― ‗The relevant question is not whether the community remembered the case, but
whether the jurors at [the defendant‘s] trial had such fixed opinions that they could not
judge impartially the guilt of the defendant.‘ (Patton v. Yount (1984) 467 U.S. 1025,


                                              14
1035 . . . .) ―We must distinguish between mere familiarity with [the defendant] or his
past and an actual predisposition against him.‘ [Citation.] . . . ‗ ―It is sufficient if the
juror can lay aside his impression or opinion and render a verdict based on the evidence
presented in court.‖ ‘. . .‖ (Farley, supra, 46 Cal.4th at p. 1086.) Thus, the California
Supreme Court has upheld denials of change of venue motions in cases where the vast
majority of prospective jurors had heard about the case. (See People v. Ramirez (2006)
39 Cal.4th 398, 432–433, 435 (94.3%); People v. Proctor (1992) 4 Cal.4th 499, 524–526
(80%); People v. Bonin (1988) 46 Cal.3d 659, 675–677 (85%), overruled on another
ground as stated in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) ―[T]here is no
requirement that jurors be totally ignorant of the facts of a case, as long as they can lay
aside their impressions and render an impartial verdict.‖ (People v. Lewis (2008)
43 Cal.4th 415, 450.)
       Defendant asserts the first change of venue factor, the nature and the gravity of the
offense, ―weighed in favor‖ of a change of venue because it was a murder of ―a person of
high importance‖ and ―involved a sense of sensationalism.‖ Murder is always a grave
offense, but ―the same could be said . . . of most capital crimes, and . . . this factor is not
dispositive.‖ (Farley, supra, 46 Cal.4th at p. 1083.) ―Indeed, on numerous occasions we
have upheld the denial of change of venue motions in cases involving multiple murders.‖
(Ibid.) The trial court concluded this factor did not favor a change of venue, noting there
were no sexual or racial overtones, it was not a capital case, nor were there serial
murders. And, while the murder in this case was of an elected official, that fact does not
change the nature of the killing for the purposes of venue analysis. Garcia was murdered
in a case of mistaken identity, not targeted because he was a city councilman.
       Defendant also maintains the extensive publicity about the murder mandated a
change of venue. He notes there were ―695 newspaper articles related to the case,‖ which
indicated Garcia was killed ―because of mistaken identification and a drug deal gone bad
. . . and that his killing was an ‗attack on democracy.‘ ‖ While the news coverage was
extensive, the vast majority of the articles in the record were ―largely factual‖ rather than
inflammatory, a factor the court may consider. (Farley, supra, 46 Cal.4th at p. 1083.)


                                               15
Indeed, defendant does not identify any of the 692 articles in Exhibit A as being
inflammatory. The bulk of the newspaper articles mentioning Garcia were about the
youth center and scholarship fund bearing his name, and were unrelated to the trial. As
the court found, ―most of the press within the last year is press about the youth center or
the Matt Garcia Foundation, which is talking about keeping Mr. Garcia‘s dream alive,
having events for youth.‖ The court further found ―the overwhelming majority of the
press is fairly neutral and factual,‖ and noted ―the majority of the critical press . . . was
more critical of the District Attorney‘s . . . decision to provide immunity to . . . the driver
in this case . . . .‖
        Defendant also contends Solano County is ―neither a large nor a small county‖
where the ―prospective juror pool was rather limited.‖ (Fn. omitted.) ―[M]otions to
change venue have been granted where the county is relatively isolated and small. (See,
e.g., Martinez v. Superior Court (1981) 29 Cal.3d 574, 582 . . . [Placer County,
population 106,500]; People v. Tidwell (1970) 3 Cal.3d 62, 64 . . . [Lassen County,
population 17,500].)‖ (People v. Webb (1993) 6 Cal.4th 494, 514.) Solano County is not
isolated, but ―bisected by the heavily traveled Interstate 80 corridor between San
Francisco and Sacramento, is no more than 45 miles from either of these large urban
areas.‖ (Bello v. ABA Energy Corp. (2004) 121 Cal.App.4th 301, 313, fn. 3.) Nor is it
small: the population at the time was over 400,000. (Ibid.)
        Defendant next asserts his status in the community militated in favor of changing
venue because he was ―portrayed in an unflattering manner.‖ A change of venue may be
necessary where the defendant is ―associated with an organization or group which
aroused community hostility. [Citations.]‖ (People v. Ainsworth (1988) 45 Cal.3d 984,
1002.) There is no evidence defendant was a member of ―an unusual subcultural or
unpopular group.‖ (Frazier v. Superior Court (1971) 5 Cal.3d 287, 290, 293–295
(defendant was a ―hippie‖ and county felt deep-seated antagonism toward such
individuals); People v. McKee (1968) 265 Cal.App.2d 53, 59 [defendant was associated
with Hell‘s Angels group].) The court found Combs was an African-American man ―in a
community that is very diverse, and there does not appear to be anything about [his]


                                              16
status which would promote any sort of hostility.‖ Indeed, the trial court found there was
―hardly any [press] on Mr. Combs.‖
       Defendant also contends Garcia‘s prominence was a significant factor. He claims
Garcia, was ―a person of high importance, the youngest councilman in Fairfield history.‖
As an elected official, Garcia had some prominence in Fairfield at the time of his murder.
The court found, however, he ―was a fairly newly-elected City of Fairfield City
Councilman.‖ There was no evidence he was well-known throughout all of Solano
County, or that, as defendant claims, Garcia ―attained the status of celebrity while
living.‖ As the court found, ―I think it is fair to say that [Garcia] has had a greater impact
posthumously than he has before his passing, . . . he was a young man; he did not have
perhaps the time to have a greater impact on the community. . . .‖
       In sum, there is no merit to defendant‘s challenge to the denial of his venue
motion. Substantial evidence supports the trial court‘s factual findings, and our
independent review of the record demonstrates defendant did not meet his burden of
establishing a reasonable likelihood he could not receive a fair and impartial trial in
Solano County.8
                                        DISPOSITION
       The judgment is affirmed.




       8
         ― ‗We have either rejected on the merits defendant‘s claims of error or have
found any assumed errors to be nonprejudicial. We reach the same conclusion with
respect to the cumulative effect of any assumed errors.‘ ‖ (People v. Cole (2004)
33 Cal.4th 1158, 1235–1236.)


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                                 _________________________
                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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