Filed 7/31/14 P. v. Moore CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E057475

v.                                                                       (Super.Ct.No. FVA901440)

LOUIS JEFFREY MOORE, JR.,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

         Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland

and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
          After defendant Louis Jeffrey Moore, Jr. and his girlfriend got into a drunken

argument, he shot her three times, killing her. When the police interviewed him, he

admitted knowingly shooting her. At trial, however, he testified that he blacked out;

when he came to, he was partially blind. He heard what he thought were “attack[ers]”

moving around in the kitchen. He fired blindly, intending only to scare them away.

          A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a),

189) with an enhancement for causing death by personally discharging a firearm (Pen.

Code, § 12022.53, subd. (d)). Defendant was sentenced to a total of 50 years to life in

prison.

          In this appeal, defendant contends:

          1. The jury instructions erroneously failed to define second degree murder.

          2. The jury instructions erroneously suggested that, for provocation to reduce first

degree murder to second degree murder, it must meet a reasonable person standard.

          3. The trial court erred by admitting defendant’s ex-wife’s testimony about one

particular prior threat that he made to her.

          4. The trial court erred by denying defendant’s post-trial Marsden motion to the

extent that it was based on defense counsel’s failure to obtain a psychological evaluation.

          We find no error. Hence, we will affirm.




                                                2
                                             I

                              FACTUAL BACKGROUND

       A.     Third-Party Witnesses’ Accounts.

       As of August 2009, defendant’s girlfriend, Jillian White, was living with him off

and on. They occupied an upstairs apartment in a fourplex in Fontana.

       White drank every day. Sometimes when she drank, her “demeanor” got “nasty.”

Defendant also drank occasionally. Neighbors often heard them arguing.

       There were complaints about White banging on the door, trying to get defendant to

let her in. On one occasion, paramedics were seen helping White downstairs; she had

bruises on her arm. On two occasions, the police were called; the first time, they asked

White to leave, and the second time, they arrested her. One neighbor overheard White

saying, “I want to kill my boyfriend by throwing him down a flight of stairs[.]”

       Margaret Delgado and her husband Freddie Delgado owned the fourplex and

lived there as well. On the night of August 26-27, 2009, they were hanging out in the

garage, directly under defendant’s apartment. Around midnight, they heard what

sounded like marbles falling onto defendant’s tile floor. Freddie heard a “thump.”

Margaret heard a sound like furniture being dragged.

       Margaret phoned defendant and asked “Is everything okay up there?” Defendant

sounded a “little bit” drunk. He said, “Yeah, everything is okay, we’re just sitting here,

[we] had an argument . . . .” He then volunteered that he did not have any guns, knives,

or weapons, and he was not a violent person. He added that White might be pregnant and



                                             3
“was having some little issues.” White could be heard in the background, talking in a

loud voice.

       Stephanie Sierra and her daughter, Sara Pena, lived in the apartment next to

defendant’s. They heard defendant and White arguing. At one point, Pena heard White

yell, “Oh my gosh[,] what are you doing?” Then both Sierra and Pena heard three

gunshots. The first two shots were close together, but there was a brief pause before the

final shot.

       Margaret, Sierra, and a third neighbor all heard something fall onto the dirt below

defendant’s balcony. Sierra made out two separate sounds — a sound like a duffel bag

falling, followed by a sound like a person jumping over the balcony.

       When the police arrived, they found White’s body lying on the kitchen floor. She

had been struck by three bullets. One entered her back on an upward trajectory; one

entered her back on a steep downward trajectory; and one entered her front left shoulder.

Two of the three bullets caused internal bleeding, which in turn caused unconsciousness

and death. White’s blood alcohol level at the time of death was 0.32 percent.

       A rifle was lying on the floor in the middle of the living room. It held one spent

casing in the chamber and two unfired rounds in the magazine tube. There were two

more spent casings on the floor.

       A police officer who was familiar with that make and model of rifle testified that it

has a safety. Moreover, it has to be cycled manually using a lever. The lever ejects any

spent casing and moves a fresh round from the magazine tube into the chamber. Thus,



                                             4
“[i]t takes a deliberate action every time that you fire . . . .” The officer demonstrated the

lever action for the jury.

       Around 12:30 p.m., the police spotted defendant walking north on Market Street in

Riverside. They followed him; when they caught up with him, he was sitting on a bench

in front of City Hall. They promptly arrested him.

       B.     Defendant’s Statement to the Police.

       Defendant was Mirandized and gave police the following statement.

       At the time of the shooting, defendant was drunk. He had had four or five shots of

vodka, half a pint of cognac, and three beers. He was also smoking marijuana. White,

too, was drunk. Defendant believed she was an alcoholic.

       They got into an argument. At one point, defendant told White to stop drinking

and smoking because she was pregnant (or so she had told him).1 He grabbed her

cigarette. White said she was going to call the police. Defendant picked up her cell

phone and threw it at her. However, the battery was missing. She accused defendant of

taking it. She started screaming, “[G]ive me my battery or I’m gonna call the police.”

Defendant said, “[L]et me give [you] a reason to call them.”

       Defendant went and got his rifle from his bedroom. He did not remember loading

it. As he came back around the corner, White was facing him; he cocked the rifle and

       1
               Defendant had had a vasectomy. He claimed that he nevertheless believed
that White was pregnant and that he was the father, because he had heard that “after 10
years or so it can go back together.” The autopsy physician did not testify as to whether
White was actually pregnant or not.



                                              5
pulled the trigger. He did not remember how many times he fired. He saw White fall;

then he left. He walked from Fontana to Riverside. When he saw police activity, he

knew they were looking for him, so he went to City Hall and waited for them to find him.

       C.     Defendant’s Testimony at Trial.

       Defendant gave the following account at trial.

       About a week before the shooting, White told him that “some guy named John . . .

was going to kill [defendant] because [defendant] took his girlfriend.”

       On the day of the shooting, both defendant and White were drinking. When White

drank, she wanted to argue and fight. White said she was going to call John “and tell him

to come over and teach [defendant] a lesson.”

       Defendant drank so much that he blacked out. When he woke up again, he was

partially blind. He could not see anything at eye level; if he looked down, he could see

“the ground, maybe three feet ahead . . . .” He concluded that he had been “attacked.”

He heard what sounded like “more than one [person]” moving around in the kitchen. He

got his rifle, which was already loaded, and stood in the doorway. He was thinking, “I

can scare them out of the house.”

       According to defendant, he did not have to turn off the safety; “when you grab the

weapon, . . . [the safety] automatically goes off.” He cocked the hammer and fired. He

did not aim. He did not remember how many times he fired.

       He could not see White until she “dropped into [his] vision . . . .” He checked her

for breathing and a pulse, but found neither. He left the apartment. The next thing he



                                             6
knew, he was walking into Riverside. After seeing himself on the news on television, he

went to City Hall to turn himself in.

        D.     Prior “Bad Acts” Evidence.

        Kimberly White was defendant’s ex-girlfriend; she had lived with him from 2000

to 2005. She testified that he was usually “high or drunk or both.” He was verbally

abusive “all the time.” He would “get into altercations with people unnecessarily.”

        In May 2005, during an argument, defendant grabbed her and “slammed” her to

the floor “with force,” hurting her ear. He punched the floor. Next, he pulled two phones

out of the wall. When she called 911 on a cell phone, he ran away.

        Calynn Taylor Moore was defendant’s ex-wife. They were married from 1993 to

2002.

        In January 2000, he got angry with her and told her to stop the car she was driving

and let him out. After getting out, he punched the driver’s side door of the car.

        In October 2000, while speaking to her “in a hostile manner,” he punched the sofa

she was sitting on.

        In Spring 2001, after cursing at her and calling her names, he said, “I would bust

you in your MF-ing mouth if it wasn’t for the fact that I know you would blow my brains

out.”

        After the marriage ended, Taylor Moore attempted to get a restraining order

against defendant. While in court, the judge asked him to identify her; he replied that “he

wouldn’t recognize [her] unless [she] had a bullet hole.” Defendant “rant[ed]” for



                                              7
awhile, then left the courtroom. About an hour later, three bailiffs escorted her to her car.

She testified, “By then, I had fear, big fear, that I would be snipered by [defendant].”

                                                II

              JURY INSTRUCTIONS ON SECOND DEGREE MURDER

       Defendant contends that the standard jury instructions, as they stood at the time of

trial, failed to define second degree murder.

       A.     Additional Factual and Procedural Background.

       With regard to first and second degree murder, the jury was instructed with

CALCRIM Nos. 520, 521, and 522.

       CALCRIM No. 520, as relevant here, informed the jury that murder requires

express or implied malice; it defined both concepts. It then provided:

       “If you decide that the defendant committed murder, you must then decide

whether it is murder of the first or second degree.”

       CALCRIM No. 521, as relevant here, defined first degree murder. It informed the

jury that first degree murder requires deliberation and premeditation, which it defined. It

also provided:

       “The People have the burden of proving beyond a reasonable doubt that the killing

was first degree murder, rather than a lesser crime. If the People have not met this

burden, you must find the defendant not guilty of first degree murder.”




                                                8
       CALCRIM No. 522 provided:

       “Provocation may reduce [a] murder from first degree to second degree and may

reduce a murder to manslaughter. The weight and significance of the provocation, if any,

are for you to decide.

       “If you conclude that the defendant committed murder but was provoked, consider

the provocation in deciding whether the crime was first or second degree murder. Also,

consider the provocation in deciding whether the defendant committed murder or

manslaughter.”

       During its deliberations, the jury sent out the following question:

       “We are seeking clarification on the requirements to move from murder one to

murder two. If we are not unanimous on murder one, do we move to murder two?”

       The trial court responded:

       “For definitions of murder and degrees of murder[,] please refer back to

CALCRIM 500, 520, 521 & 522.

       “I cannot tell you the order in which to consider the possible verdicts (see

CALCRIM 640). You may consider each crime in whichever order you choose.

However, I can only accept a guilty verdict of a lesser included offense if you have

unanimously acquitted the defendant on the greater offense.”

       B.     Analysis.

       Defendant argues that, while the instructions stated that a murder in the absence of

deliberation and premeditation is not first degree murder, they failed to state that it is



                                               9
second degree murder. As he points out, after the trial in this case, CALCRIM Nos. 520

and 521 were amended to make this explicit.

       “When considering a claim of instructional error, we view the challenged

instruction in the context of the instructions as a whole and the trial record to determine

whether there is a reasonable likelihood the jury applied the instruction in an

impermissible manner. [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1229.)

       CALCRIM No. 520 stated that, if defendant killed another person with malice

aforethought, he was guilty of murder. It also stated that murder was either of the first or

second degree. CALCRIM No. 521 then stated that, if the People proved that defendant

was guilty of murder, and also proved that defendant acted “willfully, deliberately, and

with premeditation,” defendant was guilty of first degree murder. It necessarily followed

that, if the People proved that defendant was guilty of murder, but failed to prove that

defendant acted “willfully, deliberately, and with premeditation,” defendant was guilty of

second degree murder.

       Would it be better to have stated this explicitly? Sure. Which is undoubtedly why

the Judicial Council subsequently amended the instructions. Nevertheless, the

instructions as given were accurate and complete. Their only flaw was that they

conveyed this one particular point by necessary implication, rather than explicitly.

Hence, this case comes within the rule that “[g]enerally, a party may not complain on

appeal that an instruction correct in law and responsive to the evidence was too general or




                                             10
incomplete unless the party has requested appropriate clarifying or amplifying language.

[Citation.]” (People v. Castaneda (2011) 51 Cal.4th 1292, 1348.)

       Defendant also notes that CALCRIM No. 522, dealing with provocation, referred

explicitly to second degree murder. He argues that the jury would have concluded that

the only way it could find second degree murder was by also finding provocation. Again,

however, this overlooks the necessary implication of CALCRIM No. 521. CALCRIM

No. 521 made it clear that first degree murder requires premeditation and deliberation.

Thus, the jury would have understood CALCRIM No. 522 to mean that provocation can

reduce murder from first degree to second degree because it shows lack of premeditation

and deliberation.

                                            III

                     JURY INSTRUCTIONS ON PROVOCATION

       Defendant contends that the standard jury instructions erroneously suggested that

provocation must be reasonable to reduce first degree murder to second degree murder.

       A.     Additional Factual and Procedural Background.

       As already mentioned (see part II, ante), the jury was instructed on provocation

using CALCRIM No. 522, which stated, as relevant here:

       “Provocation may reduce [a] murder from first degree to second degree and may

reduce a murder to manslaughter.”

       The jury was also instructed on voluntary manslaughter using CALCRIM No. 570,

which stated, as relevant here:



                                            11
        “A killing that would otherwise be murder is reduced to voluntary manslaughter if

the defendant killed someone because of a sudden quarrel or in the heat of passion.

        “The defendant killed someone because of a sudden quarrel or in the heat of

passion if:

        “1. The defendant was provoked;

        “2. As a result of the provocation, the defendant acted rashly and under the

influence of intense emotion that obscured his reasoning or judgment;

        “AND

        “3. The provocation would have caused a person of average disposition to act

rashly and without due deliberation, that is, from passion rather than from judgment. [¶]

. . . [¶] . . .

        “It is not enough that the defendant simply was provoked. The defendant is not

allowed to set up his own standard of conduct. You must decide whether the defendant

was provoked and whether the provocation was sufficient. In deciding whether the

provocation was sufficient, consider whether a person of average disposition, in the same

situation and knowing the same facts, would have reacted from passion rather than from

judgment. [¶] . . .

        “The People have the burden of proving beyond a reasonable doubt that the

defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the

People have not met this burden, you must find the defendant not guilty of murder.”

(Italics added.)



                                             12
        B.    Analysis.

        Provocation is an element of “heat of passion” voluntary manslaughter. “‘[T]he

factor which distinguishes the “heat of passion” form of voluntary manslaughter from

murder is provocation . . . .’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 549–

550.)

        To reduce a murder to voluntary manslaughter, the provocation must meet an

objective standard of reasonableness. “Objectively, the victim’s conduct must have been

sufficiently provocative to cause an ordinary person of average disposition to act rashly

or without due deliberation and reflection. [Citation.]” (People v. Enraca (2012) 53

Cal.4th 735, 759.)

        However, it has long been held that “the ‘“existence of provocation which is not

‘adequate’ to reduce the class of the offense [from murder to manslaughter] may

nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon,

and carried it out after, deliberation and premeditation”’ — an inquiry relevant to

determining whether the offense is premeditated murder in the first degree, or

unpremeditated murder in the second degree. [Citation.]” (People v. Carasi (2008) 44

Cal.4th 1263, 1306.)

        In other words, the provocation necessary to reduce first degree murder to second

degree murder does not have to pass an objective test. (People v. Fitzpatrick (1992) 2

Cal.App.4th 1285, 1295–1296.) “The issue is whether the provocation precluded the




                                            13
defendant from deliberating. [Citation.] This requires a determination of the defendant’s

subjective state.” (Id. at p. 1295.)

       Defendant notes that CALCRIM No. 570 specifically provided that provocation

must meet a reasonable person standard for the purpose of reducing murder to

manslaughter. Defendant therefore argues that the jury would have concluded that

provocation must likewise meet a reasonable person standard for the purpose of reducing

first degree murder to second degree murder.

       Recently, in People v. Jones (2014) 223 Cal.App.4th 995, the court rejected an

identical argument. It stated: “[T]he instructions are correct. They accurately inform the

jury what is required for first degree murder, and that if the defendant’s action was in fact

the result of provocation, that level of crime was not committed. CALCRIM Nos. 521

and 522, taken together, informed jurors that ‘provocation . . . can give rise to a rash,

impulsive decision, and this in turn shows no premeditation and deliberation.’ [Citation.]

As the jury also was instructed, a reduction of murder to voluntary manslaughter requires

more. It is here, and only here, that the jury is instructed that provocation alone is not

enough for the reduction; the provocation must be sufficient to cause a person of average

disposition in the same situation, knowing the same facts, to have reacted from passion

rather than judgment.” (Id. at p. 1001.) We likewise reject defendant’s contention.




                                             14
                                             IV

            THE ADMISSION OF DEFENDANT’S EX-WIFE’S TESTIMONY

   ABOUT DEFENDANT’S CONDUCT AT A RESTRAINING ORDER HEARING

       Defendant contends that the trial court erred by admitting his ex-wife’s testimony

about a restraining order hearing after their divorce. As noted earlier, defendant said at

the hearing that “he wouldn’t recognize [her] unless [she] had a bullet hole.” She also

testified that, when she left, she was afraid that he would “sniper[]” her.

       A.     Additional Factual and Procedural Background.

       The prosecution filed a motion in limine to introduce evidence of prior “uncharged

acts” that defendant had committed against his ex-girlfriend and his ex-wife.

       Regarding the ex-wife, the prosecution stated: “She will . . . testify that during the

marriage, there w[ere] repeated verbal threats against her by the defendant and he . . .

attempted to strike her on more than one occasion. She believes that defendant was

capable of killing her. After the divorce, the defendant continued to make threats and

harassing phone calls.”

       During the hearing on the motion, defense counsel argued that the ex-wife’s

statements were not trustworthy.

       The trial court indicated that it was “concerned” about the ex-wife’s testimony

because it was “remote.” It was also concerned about letting her testify that she was

afraid of defendant unless she explained why she was afraid.




                                             15
       It ruled that it would not admit evidence of any incidents more than 10 years

before the crime. Otherwise, however, it ruled that the ex-wife’s testimony was not more

prejudicial than probative.

       B.     Analysis.

       We begin by pointing out what defendant is not arguing. First, defendant is not

challenging any of his ex-girlfriend’s testimony. Second, he is not challenging any of his

ex-wife’s testimony other than her testimony about the restraining order hearing. Third,

he does not dispute that her testimony about the restraining order hearing was generally

admissible under Evidence Code section 1101, subdivision (b) and/or section 1109. His

sole argument is that his ex-wife’s testimony about the restraining order hearing should

have been excluded under Evidence Code section 352.

       Defense counsel forfeited this argument, however, by failing to object to this

particular evidence on this particular ground. (Evid. Code, § 353, subd. (a).) Admittedly,

the trial court did consider admissibility under Evidence Code section 352 sua sponte. At

that point, however, it had to consider this issue in light of the prosecution’s offer of

proof, which referred only to “threats.” It had no opportunity to consider defendant’s

present contention about the unique prejudicial nature and lack of probative value of this

particular testimony. (See People v. Solomon (2010) 49 Cal.4th 792, 821 [“A motion in

limine can preserve an appellate claim, so long as the party objected to the specific

evidence on the specific ground urged on appeal at a time when the court could determine




                                              16
the evidentiary question in the proper context.”].) Defense counsel could have objected

when the testimony came out during trial, but did not.

       Defendant argues that any such forfeiture constituted ineffective assistance. “The

decision whether to object to the admission of evidence is ‘inherently tactical,’ and a

failure to object will rarely reflect deficient performance by counsel. [Citation.]”

(People v. Castaneda, supra, 51 Cal.4th at p. 1335.) Here, defense counsel was not

necessarily aware of the evidence in advance;2 that would explain why he did not

specifically object to it during the motion in limine. Later, when it came out at trial, he

“could . . . have decided that objecting would focus the jury’s attention on the threat

incident in ways that would not be helpful to the defense.” (People v. Harris (2008) 43

Cal.4th 1269, 1290.)

       Even if not forfeited, the contention lacks merit. Defendant argues that the

evidence lacked probative value because it was not similar to the charged crimes.

However, it was similar enough to have probative value, because it involved a threat to

shoot an intimate partner. As defendant acknowledges, he admitted shooting White, so

the key issue in this case was his mental state when he shot. The fact that, in the past,

when angry with an intimate partner, he had entertained thoughts of shooting her was

       2
               It is not clear that even the prosecutor was aware that defendant’s ex-wife
could offer this testimony. He seems to have expected her to testify to threats that
defendant made out of court, during a conversation or conversations about child custody
issues. After the ex-wife testified to the incident at the restraining order hearing instead,
he seemed surprised; he asked, “[Was there] any other type of incident where he made a
threat like that . . . ?” She replied, “Nothing comes to memory at this time.”



                                             17
significantly probative evidence that he shot White intentionally in this case.

Defendant’s ex-wife’s fear that defendant would “sniper[]” her was also significantly

probative, because it meant that someone who knew defendant well understood his threat

to be serious.

       Defendant also argues that the evidence was “inflammatory.” However, it

involved a mere threat. The jury heard evidence that, in the current case, defendant not

only threatened White, but shot her repeatedly, killing her. Thus, the prior incident pales

when compared to the current offense. Moreover, there was evidence of several incidents

in which defendant verbally threatened and/or physically lashed out at his ex-wife and his

ex-girlfriend. Against this background, evidence of a single additional threat was not

particularly prejudicial.

       The fact that the trial court was not required to exclude the evidence affords a

second reason for concluding that defense counsel did not render ineffective assistance —

his failure to object was not objectively unreasonable. And the fact that the evidence was

not particularly prejudicial affords yet a third reason — defendant cannot show that the

asserted ineffective assistance had any effect on the outcome.

       Finally, because the evidence was not particularly prejudicial, even assuming the

trial court did err, the error was harmless.




                                               18
                                              V

                  DEFENDANT’S POST-TRIAL MARSDEN MOTION

      BASED ON FAILURE TO OBTAIN A PSYCHOLOGICAL EVALUATION

       Defendant contends that the trial court erred by denying his post-trial Marsden

motion to the extent that it was based on failure to obtain a psychological evaluation.3

       A.     Additional Factual and Procedural Background.

       Defendant was represented at trial by an appointed member of the conflicts panel.

       Before sentencing, when the probation officer interviewed defendant, defendant

said he wanted a Marsden hearing. As a result, on the date set for sentencing, the trial

court held a Marsden hearing in camera.4

       The trial court allowed defendant to state all of the reasons why he believed he had

received ineffective assistance of counsel. One of the many reasons he stated was that

defense counsel had never requested a psychological evaluation of him.


       3
              A “Marsden motion” is a motion to discharge existing appointed counsel,
based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970)
2 Cal.3d 118.)
       4
             The reporter’s transcript of the Marsden hearing was filed as confidential.
(See Cal. Rules of Court, rule 8.45(b).)

        In his opening brief, defendant discussed the events at the Marsden hearing and
cited the confidential transcript. Defendant did not seek to file the brief under seal (Cal.
Rules of Court, rule 47(b)(3)) and did not oppose the People’s request for a copy of the
confidential transcript (Cal. Rules of Court, rule 8.47(b)(2)(C).) We therefore deem
defendant to have waived any claim of attorney-client privilege or work product
protection for the contents of the transcript. (Evid. Code, § 912, subd. (a); DeLuca v.
State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.)



                                             19
       The trial court then allowed defense counsel to respond. Regarding a

psychological evaluation, he stated, “[T]here were too many downside risks involved

there.” He explained that his “greatest fear” was that a psychologist might conclude that

defendant was malingering. He noted that, despite defendant’s claim to have had a

blackout, defendant had been able to remember some events before, during, and after the

shooting. He added: “[Defendant] knows more about that incident than what he’s

saying. There’s times that he’s telling me what happened. There’s times that he does not

remember. However, when there’s something that he deems helpful to him, he

remembers it and he could tell it to me in very vivid, articulate detail. . . . [T]hen at other

times he does not remember, and he vacillates . . . on these statements at different times.”

       Defense counsel also stated: “And when the People, the prosecutor, if they were

to get ahold of that information, it is devastating to the defense. [¶] [M]y experience has

been any time a mental health expert comes in and mentions the word ‘malingering,’ it’s

devastating. It’s taken as, ‘Oh, he’s exaggerating,’ ‘He’s not being truthful,’ ‘He’s trying

to use this process to help himself,’ and it does not bode well. I did not feel it was worth

the risk.”

       Finally, defense counsel was concerned that, if defendant did talk to a

psychologist, there might be an issue regarding “false evidence.”




                                              20
       When defense counsel was done, the trial court allowed defendant to respond.

Defendant did not say anything further about a psychological evaluation.5

       The trial court denied the motion.

       B.     Analysis.

       “When a defendant seeks to obtain a new court-appointed counsel on the basis of

inadequate representation, the court must permit her to explain the basis of her contention

and to relate specific instances of inadequate performance. The court must appoint a new

attorney if the record clearly shows the current attorney is not providing adequate

representation or that defendant and counsel have such an irreconcilable conflict that

ineffective representation is likely to result. [Citations.]” (People v. Rodriguez (2014) 58

Cal.4th 587, 623.)

       “[A] defendant is entitled to appointment of substitute counsel upon a proper

showing posttrial . . . as well as pretrial.” (People v. Smith (1993) 6 Cal.4th 684, 692.)

“A defendant is entitled to competent representation at all times, including presentation

of a new trial motion . . . . Thus, when a defendant satisfies the trial court that adequate

grounds exist, substitute counsel should be appointed. Substitute counsel could then




       5
              The numerous other grounds that defendant offered for his Marsden motion
are not relevant to this appeal. However, we commend the trial judge (the Hon. Steven
A. Mapes) for his careful and methodical consideration of all of those grounds. The
hearing was “the very model of a modern [Marsden hearing].” (Gilbert & Sullivan, The
Major General’s Song (1879).)



                                             21
investigate a possible . . . motion for new trial based upon alleged ineffective assistance

of counsel.” (Id. at pp. 695-696.)

       “If the court holds an adequate hearing, its ruling is reviewed for abuse of

discretion. [Citation.]” (People v. Rodriguez, supra, 58 Cal.4th at p. 623.)

       Defendant argues that defense counsel’s claimed reason for not obtaining a

psychological evaluation was unsound, because, even if the psychological evaluation

showed malingering, the prosecution could not obtain it in discovery. Under Penal Code

section 1054.3, subdivision (a)(1), the defense is not required to provide an expert’s

report in discovery unless it intends to call the expert and/or introduce the report at trial.

(Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.)

       This overlooks the fact that, if the psychological evaluation did show malingering,

it simply would not be helpful to the defense. If, on the other hand, the psychological

report did not show malingering, then once defense counsel declared his intent to call the

psychologist as a witness, the prosecution would become entitled to have its own

psychologist examine defendant. (Pen. Code, § 1054.3, subd. (b)(1).) Defense counsel

could reasonably be concerned that, even if his own expert found no malingering, a

prosecution expert might.

       Defendant also criticizes defense counsel for relying on his own nonexpert opinion

that defendant was malingering. However, his explanation for suspecting malingering

was reasonable, and the trial court could reasonably accept it. Even though he was not a

psychologist, he had to make the strategy call one way or another, and in his opinion as



                                              22
an attorney, it turned in part on how likely it was that a psychologist would find that

defendant was malingering. This is the kind of decision that a nonexpert often has to

make in deciding whether to call in an expert.

       Defendant argues that a psychological evaluation was relevant not only to

unconsciousness, but also to intoxication; an expert could have testified that defendant

was, in fact, intoxicated, and could have testified about the effects of intoxication on

deliberation and premeditation. It is not clear, however, what an expert could have

added. If the facts were as defendant claimed — i.e., he had consumed a half pint of

cognac, four or five vodka shots, and two or three beers, along with marijuana — it did

not take an expert to conclude that he was intoxicated. It also did not take an expert to

conclude that he would have had a reduced ability to deliberate and premeditate. Finally,

an expert would have no magic way of knowing if defendant’s claim was, in fact, true.6

       Defendant relies on People v. Frierson (1979) 25 Cal.3d 142, which held that trial

counsel was ineffective in failing to consult an expert about whether the defendant’s use

of PCP and Quaalude would support a defense of diminished capacity. (Id. at pp. 159-

164.) The court cautioned, however, “We should not be understood as requiring that trial

counsel must seek psychiatric or expert advice in every case wherein drug intoxication is

a possible defense.” (Id. at p. 164.) It emphasized that diminished capacity was the “sole


       6
              During the Marsden hearing, defense counsel revealed that defendant’s
blood had been tested 12 hours after the shooting, and that the test showed a blood
alcohol level of zero.



                                             23
defense” (id. at p. 159), so that the failure to present expert testimony was effectively a

failure to present a defense at all. (Id. at p. 163.) Moreover, the ineffective assistance

claim was supported by the declaration of an expert psychologist to the effect that PCP

intoxication could mimic schizophrenia. (Id. at p. 159.) This was testimony that went

beyond common knowledge. Indeed, the court stated, “such evidence could not be

effectively presented through lay witnesses.” (Id. at p. 164.) Here, intoxication was not

the sole defense and it could be presented adequately through testimony by lay witnesses.

       We therefore conclude that the trial court did not abuse its discretion by denying

defendant’s Marsden motion.

                                             VI

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 RICHLI
                                                                                              J.

We concur:


RAMIREZ
                        P. J.


MILLER
                           J.




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