Opinion
C073287
11-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTONIO BARNES et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF117037A, SF117037B)
A jury convicted defendants Robert Antonio Barnes and Alphonze Fitzhugh of first degree murder (count one), attempted murder (count two), and attempted robbery (count three). The jury found true the special circumstance that the murder was committed during the commission or attempted commission of a robbery. (Pen. Code, § 190.2, subd. (a)(17)(A).) The jury also found true that Barnes personally and intentionally discharged a firearm in the commission of all three counts. (§ 12022.53, subd. (d).) The jury found not true that Fitzhugh personally and intentionally discharged a firearm. The People did not seek the death penalty. Consequently, as to the first count, defendants each received the mandatory lesser sentence for special circumstance murder, life imprisonment without parole. (§ 190.2, subd. (a).) The court also sentenced Barnes to a consecutive upper term of nine years for count two and two consecutive 25 years to life sentences for the firearm enhancement as to counts one and two, for a total of 59 years to life plus life without the possibility of parole. The court stayed the upper term of three years and the enhancement as to count three under section 654. The court also sentenced Fitzhugh to a consecutive upper term of nine years for count two and again stayed the sentence for count three under section 654, for a total of nine years plus life without the possibility of parole.
Undesignated statutory references are to the Penal Code.
On appeal, defendants raise various challenges regarding the admission of portions of Fitzhugh's text messages and various statements the prosecutor made during closing argument. Fitzhugh additionally challenges the sufficiency of the evidence supporting his conviction for attempted murder and the felony-murder special circumstance finding. Barnes contends the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm the judgment.
After waiving oral argument, Fitzhugh sought leave to file a supplemental brief to raise a claim of insufficiency of the evidence with respect to his murder conviction under Senate Bill No. 1437 (2017-2018 Reg. Sess.). Senate Bill No. 1437 amends sections 188 and 189, as relevant here, to "prohibit a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life . . . ." (Legis. Counsel's Dig., Sen. Bill No. 1437 (2017-2018 Reg. Sess.).) We denied Fitzhugh's request because he does not dispute that he was a major participant, and the arguments in his motion were precluded by our holding that sufficient evidence supported the conclusion he acted with reckless indifference to human life.
The panel as presently constituted was assigned this matter in June 2018.
I. BACKGROUND
A. The Shooting
On November 18, 2009, Britani lived with her boyfriend, Evan, in her parents' garage in Acampo. The garage had been converted into a one-bedroom apartment. That night at around 8:00 or 8:30 p.m., Britani and Evan went to Lodi to purchase fast food. It was a seven- to ten-minute drive. Britani drove. When they returned home, she parked in the drive way. It was very dark. Britani and Evan walked to their front door side by side. When Evan went to put the keys in the door, a man turned the corner raising a gun at Evan. Britani screamed and Evan ran. As Evan ran, he heard five or six gunshots. A bullet went straight through his left leg. The shooter was dressed in dark clothing with gloves and a beanie or a ski mask such that Evan never saw his face.
Britani's mother thought she heard five gunshots. V.S. and James also lived in Britani's parents' house with their two children. V.S. heard between five and seven gunshots. Britani's mother and V.S. both called 911.
Meanwhile, James went outside, where he found Britani. She did not have a pulse and she was not breathing. Evan came and put her on the steps. As he did so, she let out a gasp of air. Evan gave her CPR. Britani was taken by ambulance to a hospital, where she was pronounced dead.
A neighbor heard at least four or five gunshots and went outside and saw a man run by and get into an SUV that was parked near the neighbor's truck. The driver turned off the vehicle's lights and drove away slowly.
Britani died of a gunshot wound to her torso.
Two spent .380 ACP cartridges and three bullets were found at the crime scene. Two of the bullets were .380s. The third bullet was a .38 Special or .357. An expert on firearms examination opined that both cartridge cases were fired from the same firearm.
Law enforcement also found two digital scales, more than 250 grams of marijuana, and $500 cash. Evan testified there was $8,000 in a purse. B. Cellular Phone Records and Testimony of Defendants' Acquaintances
1. Planning
Evan and Fitzhugh used to be friends. They both sold marijuana, and Fitzhugh taught Evan how to make money selling drugs, but Evan no longer respected Fitzhugh. Fitzhugh had also been close friends with Britani. At one point, Britani had considered being Fitzhugh's girlfriend. This had also caused the two men not to like each other anymore.
Joshua testified that, while selling him marijuana in the late summer of 2009, Fitzhugh asked Joshua where Evan was living. On August 24, 2009, Fitzhugh texted Joshua, "Just remember bruh loose lips sink ship keep erything we spoke on between us real shyt and we can fuck wit eachother all day [¶] NICCAZ CROSSIN GAME GET DA BLUES." After Joshua agreed, Fitzhugh added, "off top no pillow talkin thys shyt aint for the faint or week at heart the game is thick make ya next move be ya best move [¶] NICCAZ CROSSIN GAME GET DA BLUES." Fitzhugh also wrote, "Remember what I said about dat let me know whens a guhd time soon ta get dat and split dat one time figgadeel me [¶] NICCAZ CROSSIN GAME GET DA BLUES." Joshua testified before the grand jury that this text basically meant that Fitzhugh wanted to know when it would be a good time to go after and get Evan.
Joshua testified that he recognized the repeated phrases at the end of Fitzhugh's text messages. Because defendants raise claims regarding the admission of Fitzhugh's full text messages, including the "tag lines" at the end, we include the tag lines to which counsel objected so that the reader may view the impact of these tag lines in context.
Joshua understood this message to indicate that selling marijuana is a difficult market.
Aaron testified under a grant of immunity that Fitzhugh asked him to find out Evan's location. Fitzhugh, Barnes and Aaron all discussed robbing Evan. Aaron "would be one of the robbers" which meant he "would run up on [Evan] and . . . draw a gun on him and probably take him into the house or something like that, tell him to give me the money and then get in the car and take off." Fitzhugh would be the driver and Barnes said he would be one of the robbers. Whoever was in the car would be a lookout. There was not a specific date planned because Britani and her parents were always home.
Aaron pled guilty to assault with a deadly weapon in an unrelated case and received credit for time served. The San Joaquin County District Attorney's Office paid Aaron $28,479.40 in relocation expenses from April 25, 2011, through the day he testified.
Fitzhugh sent numerous text messages to various individuals as he prepared for and planned the robbery. We set forth only the most relevant to the issues on appeal. On September 7, 2009, Fitzhugh sent text messages to an unknown person stating, "I need a quick lick ta get somer more artilery than I'll be ready ta get ears." He added, "Im dam near ready ta hit ears but I need artilery for the bigger licks we got on deck !"
Evan's nickname was "Long Ears."
On September 22, 2009, Fitzhugh texted Barnes, "We needta get somemore shells 2marow when rok get hia car back [¶] Young Baby Faced A$$a$in 4real." The following day, he texted an unknown person that he might need them to buy ammunition for him. He used the tag line "Young Baby Faced A$$a$in 4real" in these messages as well. On September 26, 2009, he texted someone else, asking them to buy "a few boxes of shells for a few of my guns." By this time, he had changed his tag line again.
On October 5, 2009, Fitzhugh wrote to the unknown co-conspirator from his September 7, 2009, exchange, "U need ta get in that house an setchure eyes on that safe an loot bby its go time [¶] Dominant Species On the Planet!!" The person wrote back, "Idk how to get any more info i gave you what i could fonz its in your hands now. evena girl jas alll the money at her house since evens locked up." Later that day, Fitzhugh wrote, "Ok baby so he's gotit all at britts an hopefully in the pool house than right [¶] Dominant Species On the Planet!!" The person responded, "Yeah last i heard she and him were living there. Ill keep a look out on it. But 95% sure its all there and shit.." Fitzhugh replied, "Ok Im ready ta do it now it'd be better if danny hadit honestly but if its in her pool house thatd be perfect 2 [¶] Dominant Species On the Planet!!" The next day, he wrote, "Bby Im ready ta go hav u heard anything new Im locked an loaded ready ta go [¶] 1 Date Will United Us All The End." Fitzhugh also texted Carlos, "Bruh keep yo mouth shut on dat bidness if we jump the gin to fast that whole licks over it aint for sertain he got the shyt thr [¶] 1 Date Will Unite Us All The End." A few minutes later he reiterated, "Dnt be tellin 2 many boutit if we jump the gun an hit the house an he keepin it at danny's we lose the window of oppertunity [¶] 1 Date Will Unite Us All The End." Fitzhugh also wrote, "Once my bitch set eye's on the prize we in there erybody to hungry an aint got all the fact strate ta go in blind [¶] 1 Date Will Unite Us All The End."
The grand jury returned an indictment against Carlos in this case. He pled guilty to being an accessory after the fact to murder in exchange for a 14-month sentence he had already served and his truthful testimony against defendants.
On October 8, 2009, Fitzhugh texted Carlos, "I hope you aint buisey 2day bruh cause we need ta be out trynna catch dis nicca slippin[] out here [¶] 1 Date Will Unite Us All The End." Carlos replied, "Who." Fitzhugh answered, "Evan we gotta wate out there by his house an see if we can catchum slippin bru so come outchia wit rob at like 6:30 its go time [¶] 1 Date Will Unite Us All The End." Later, he added, "Yup just come witchu an rob g so we aint 2 deep an he got my jack cloths [¶] 1 Date Will Unite Us All The End."
Carlos testified that this means to catch someone by themselves. Aaron testified it meant to catch Evan off guard.
Carlos testified that "Rob G." is Barnes's nickname and to "jack" someone is to rob them.
On October 16, 2009, Fitzhugh texted the unknown co-conspirator, "Does long ears still drive that white car wit the rims or brittneys car [¶] DaNcE WiTh ThE DeViL." Within the next 30 minutes, Fitzhugh texted the unknown co-conspirator and Aaron that he just saw "him" jump in the car with "brittney." An hour and a half later, Fitzhugh wrote to yet another person, "Im here waitin on u bru u knw I gotchu jus say the word [¶] DaNcE WiTh ThE DeViL." An hour after that, he texted Carlos, "Dnt forget the backpack bro bro [¶] DaNcE WiTh ThE DeViL."
Carlos testified that Barnes kept a gun in a backpack.
On October 17, 2009, Carlos texted Fitzhugh, "Hey i waz checkin out tha spot and thy put a blakc safe in tha kar it waz a lil safe." Fitzhugh complimented Carlos on his surveillance: "Good job brodi watchum u like a special opps type if I was witchu that woulda been the perfect timing [¶] yA bOy FlyA ThAn A 911 tErRoRisT."
On October 28, 2009, Barnes texted Fitzhugh, "I AM, FINNA G0 GET DA MASK N M0E SHELLZ N AH ALREADY G0T SUM NEW FRANKLINZ. GWAP_GETTAZ." Carlos testified that he drove Barnes to a sporting goods store to buy tight-fitting gloves.
Carlos's ex-girlfriend testified that she heard Fitzhugh talk about wanting to kidnap Evan over money or drugs. She went to a Halloween party in 2009 with Carlos, Fitzhugh, Barnes and Michael. That night, Carlos and his ex-girlfriend went to Barnes's house. She told law enforcement that Fitzhugh pulled a "western style" revolver out of his waistband. Carlos testified that he saw a firearm in a backpack at Barnes's house. Michael also testified, under a grant of immunity, that Fitzhugh had a revolver that evening.
Additionally, Michael testified that he sold Fitzhugh bullet-proof vests. He also explained that "burner gloves" are gloves that a person "should wear when firing a weapon," such as Franklin baseball gloves. After he was shown a photograph, Michael testified that the purpose of the gloves was to keep fingerprints off the gun.
On November 6, 2009, Fitzhugh texted Michael, "We need ta go test them vests out bru up ta what calibur can the stop do u knw [¶] What Is A Bitch Gone Do 4 Me?" The next day, Fitzhugh wrote, "If u or jimmy come across bigger vest longer at least less do it again [¶] What Is A Bitch Gone Do 4 Me?" Michael responded, "fsho those vests is jus meant to cover all your vital organs nd shit." Fitzhugh replied, "I knw but ya kidneys is pretty vital I wish I still had my level 4 teflon [¶] What Is A Bitch Gone Do 4 Me?"
2. November 18, 2009
On November 18, 2009, from 1 p.m. until 7 p.m., Fitzhugh's cell phone and Barnes's cell phone were in downtown Stockton. At 6:25 p.m., Barnes texted "MAKE UP" to Fitzhugh. Fitzhugh replied, "YUP [¶] Religious About The Cliterus!" Thirty minutes later, Barnes wrote, "WERE YAW GO?" Fitzhugh responded, "We'll be ther now [¶] Religious About The Cliterus!" At 6:59 p.m., Fitzhugh wrote, "Yah come on so we can get eggie [¶] Religious About The Cliterus!" At 7:00 p.m., he wrote, "Bring my back pack bru iss on yo bed [¶] Religious About The Cliterus!" At 7:53 p.m., Barnes's cell phone was headed north on Highway 99 in the Lodi area. From 8:09 p.m. through 8:33 p.m., Barnes's phone was in the area of the crime scene. From 8:09 p.m. through 8:32 p.m., Fitzhugh's phone was in the area of the crime scene. During this time, Fitzhugh and Barnes made five calls to each other. The first four each lasted between 52 seconds and one minute and 32 seconds. The last call, at 8:32 p.m., only lasted 18 seconds. The first 911 call was made at 8:38 p.m.
At 9:03 p.m., Fitzhugh's phone was in the area of East Hammer Lane in Stockton, headed west toward Interstate 5. At 9:14 p.m., the phone was headed south on Interstate 5. At around 9:30 p.m., both Barnes's and Fitzhugh's cell phones were back in downtown Stockton.
Aaron testified that defendants came to his home that evening. Fitzhugh appeared "[f]rantic, crying." Barnes was not crying, but he seemed "kind of frantic." Fitzhugh told Aaron the robbery "went bad" and Britani was shot. Fitzhugh said only he and Barnes were there. Fitzhugh said he was in the car at the time, but he heard two shots and Britani's scream. Barnes said he "ran up on" Evan, that Evan threw a drink at Barnes, and Barnes shot Evan in the leg as he was locking the door. Britani screamed, startling Barnes, and the gun went off. Barnes said he shot twice with a .380. Both defendants said they did not intend to kill Britani. That evening, Fitzhugh texted Carlos, "We never even left ta do shit the party we was going to got canceled aite bru so dnt feel left out [¶] Religious About The Cliterus!" Next, Fitzhugh texted Aaron about watching the local news regarding the murder.
Aaron was supposed to go, but he had a leg injury that prevented him from going.
The following day, Barnes sent a text stating, "BABE WEN U G0T TIME GET ME SUM 380 BULLETS."
Aaron went to Santa Cruz for three weeks because he was scared and concerned about being an accomplice. C. Investigation
On December 8, 2009, Fitzhugh spoke to law enforcement. He gave them his telephone number. He also said he shot a .357 two weeks prior.
Sheriff's deputies searched a Stockton home and found items of indicia with Fitzhugh's and Barnes's names on them as well as a leather holster, a black cotton glove, and a round of .38 Special plus P ammunition.
II. DISCUSSION
A. Text Message Tag Lines
1. Trial Court Proceedings
A custodian of records for Metro PCS Cellular Telephone Company testified about the text that repeated in some of the text messages. He explained that a "tag" is "like a nickname or an identifier of an individual that is sending a text message," and it can be controlled by the holder of the cell phone. Fitzhugh's text messages including tag lines were admitted into evidence in three forms: (1) a record of text messages sent by Fitzhugh between August 24, 2009, through December 11, 2009; (2) pictures of Joshua's cell phone showing his text message exchange with Fitzhugh; and (3) a power point presentation that included the entirety of relevant text messages as well as a picture of the individuals who sent and received the message. The tag lines "$$MONEY IS MOTIVE/STACK CHIPS$$" and "Young Baby Faced A$$a$in 4real" were also referenced in the prosecution's closing argument.
Prior to trial, Fitzhugh's counsel objected to a number of the tag lines as irrelevant and argued they should be excluded under Evidence Code section 352 because they were inflammatory and would offend jurors: "Young Baby Faced A$$a$in 4real"; "Religious About The Cliterus!"; "Dominant Species On the Planet!!"; "1 Date Will Unite Us All The End"; "DaNcE WiTh ThE DeViL"; "yA bOy FlyA ThAn A 911 tErRoRisT"; "LoOKiN ThYs LiFe In ThE EYeS!"; and "What Is A Bitch Gone Do 4 Me?" The court did not make a ruling at that time.
Before Joshua testified, Fitzhugh's counsel objected that the tag lines "Young Baby Faced A$$a$in 4real" and "NICCAZ CROSSIN GAME GET DA BLUES" were overly prejudicial under Evidence Code section 352. The prosecutor explained that he was required to bring in evidence to attribute the phone number to Fitzhugh, and one of the items he was using was the tag line evidence. The court stated that it did not find that the tag lines "are that prejudicial, being in the culture that our young kids are growing up in right now." The court overruled the objection as to those tag lines, concluding that "the little bit of probative value is not outweighed by its prejudice because I don't find it prejudicial either."
The following day, the prosecutor asked counsel to identify the specific tag lines they were objecting to. The following exchange occurred:
"[Barnes's counsel]: I'm specifically objecting to the reference, 'Religious for the Clitoris,' or something to that affect.
"[Prosecutor]: He's asserting that for non-client
"THE COURT: I don't think Mr. Barnes has any tag lines, is that right?
"[Prosecutor]: He does.
"THE COURT: None that are objectionable?
"[Barnes's counsel]: Well, I think a lot of them are objectionable. Whether they would meet a 352 analysis, I'm not raising that. In a broader sense, they might be objectionable."
Fitzhugh's counsel mentioned only "Young Baby Faced A$$a$in 4real" and "yA bOy FlyA ThAn A 911 tErRoRisT." She argued the tag lines were irrelevant, overly prejudicial and highly inflammatory. The prosecutor argued the evidence did not take an undue amount of time and the defense could not limit the amount of evidence he brought in to meet his burden of proof. The prosecutor also argued the evidence was not character or reputation evidence. He explained the tag lines were probative because they were incriminating writings that Fitzhugh typed and sent. The prosecutor stated that Fitzhugh's text records consisted of 288 pages and every time Fitzhugh sent out a text, he put a tag line on. The prosecutor said, "[T]his is how he views himself. This is how he's holding himself out. [¶] I can't see how one can extricate his tag line from him or his words." Fitzhugh's counsel asserted that the prosecution's argument demonstrated that the tag lines were character evidence. The trial court allowed the tag line evidence after conducting an analysis under Evidence Code section 352. The court explained that it did not see that the jury would be more inclined to convict Fitzhugh because of the tag lines.
2. Evidence Code Sections 1101 and 352
Fitzhugh asserts the trial court prejudicially erred by admitting the tag lines because they were more prejudicial than probative under Evidence Code section 352 and were improper character evidence. Barnes joins in this argument and also contends his trial counsel rendered ineffective assistance by objecting to only one tag line.
" 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The trial court may not admit irrelevant evidence, but it has broad discretion in determining whether evidence is relevant. (People v. Babbitt (1988) 45 Cal.3d 660, 681.) "When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers 'substantially outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6 Cal.4th 585, 609.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Fitzhugh contends the "[t]he tag lines had no legitimate purpose other than to smear [his] character and attempt to demonstrate a propensity for violence and antisocial behavior. This constituted improper character and propensity evidence, making the tag lines also inadmissible under Evidence Code section 1101, subdivision (a)." Evidence Code section 1101, subdivision (a) provides, unless an exception applies, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." As set forth below, the tag lines were relevant to prove motive, intent and identity, rendering them admissible even if they otherwise might have been improper character evidence. (Evid. Code, § 1101, subd. (b).)
The tag lines were part of Fitzhugh's text messages to the individuals he was planning the robbery with. While the tag lines reoccurred and were apparently also sent to other individuals, they are reflective of Fitzhugh's state of mind and were not entirely separable from the rest of the communications regarding the planned crime. For example, Fitzhugh used the tag line "Young Baby Faced A$$a$in 4real" for three days including when he texted Barnes about needing more ammunition. This was potentially probative of, as discussed below, the question of whether Fitzhugh had intent to kill. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1013-1016, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190 [trial court did not abuse its discretion in admitting defendant's statement that he would "waste any mother fucker that screws with me"].) Some taglines were potentially probative of Fitzhugh's motivation to rob the victim: "$$MONEY IS MOTIVE/STACK CHIPS$$"; "EPA/Fuck Bitches Get $$Money$$!!"; "$$Young Fast Money Gotta Getit$$"; "Young Baby Faced A$$a$in 4real." Moreover, as the People note, Fitzhugh did not stipulate that he sent the text messages and Carlos testified that two incriminating text messages were sent from his phone by his ex-girlfriend. Fitzhugh argues the tag lines were unnecessary to identify the cell phone number as his and that the tag lines were preprogrammed to appear regardless of who sent the text message. But, even assuming the tag lines appeared automatically, Fitzhugh changed the tag lines regularly, which suggested that the phone, at least generally, remained in his possession. The tag lines were thus of some relevance regarding identity as well.
Fitzhugh cites nothing in support of this assertion.
"Evidence is prejudicial within the meaning of Evidence Code section 352 if it ' "uniquely tends to evoke an emotional bias against a party as an individual" ' [citations] or if it would cause the jury to ' " 'prejudg[e]' a person or cause on the basis of extraneous factors." ' " (People v. Cowan (2010) 50 Cal.4th 401, 475.) Fitzhugh argues the tag lines "Young Baby Faced A$$a$in 4real" and "yA bOy FlyA ThAn A 911 tErRoRisT" "were especially inflammatory" and "the most prejudicial." "9/11 is an event that evokes strong emotions in many people, and a tag line that equated appellant with a 9/11 terrorist had no purpose but to bias the jury against him." He also asserts that "many of the tag lines, such as 'DaNcE WiTh ThE DeViL,' 'Religious About The Cliterus!,' and 'What Is A Bitch Gone Do 4 Me,' were likely to offend jurors and improperly bias them against [Fitzhugh]." We are not necessarily convinced that Fitzhugh was equating himself with a 9/11 terrorist. Moreover, we are not convinced that the trial court abused its discretion in concluding that the probative value of the tag lines was not substantially outweighed by a probability that their admission would create a substantial danger of undue prejudice. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 ["The mere fact the lyrics might be interpreted as reflective of a generally violent attitude could not be said 'substantially' to outweigh their considerable probative value"].) The trial court's conclusion that these tag lines were not unduly inflammatory or prejudicial in today's culture was not an abuse of discretion. Additionally, the evidence would not have evoked a bias against Fitzhugh for reasons unrelated to his guilt because the evidence from the rest of the text messages subsumes any additional prejudice from the tag lines. Fitzhugh texted about needing bullet-proof vests that would offer greater protection and that he was planning to "get" and "hit" Evan. We reject defendants' claims that the trial court abused its discretion in not excluding the tag line evidence under Evidence Code section 352.
3. No Ineffective Assistance of Counsel
Likewise, we cannot conclude Barnes's counsel was ineffective for objecting to the admission of only one tag line. A claim of ineffective assistance of counsel has two elements: The defendant must show counsel's actions (or omissions) fell below professional norms, and also must show resulting prejudice. (See People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To show prejudice, the defendant must demonstrate it is reasonably probable that he would have obtained a more favorable result absent counsel's failing. (Id. at pp. 217-218.) Barnes cannot establish his claim because the trial court did not abuse its discretion in overruling the objections he did not join in. (See People v. McPeters (1992) 2 Cal.4th 1148, 1173, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106 ["Defense counsel is not required to advance unmeritorious arguments on the defendant's behalf"].) Further, Barnes's claims were weaker than Fitzhugh's because Barnes was not the author of the challenged tag lines but only the recipient. The jury was less likely to exhibit bias against the recipient based on the content of the text messages. We therefore reject Barnes's claim of ineffective assistance of counsel. B. Alleged Prosecutorial Misconduct
1. Closing Argument
In arguing during his closing statement that Fitzhugh was a major participant for purposes of the robbery-murder special circumstance allegation, the prosecutor said, "And what is the simplest test to determine whether he's a major participant? I said it yesterday. Take Mr. Fitzhugh out of the equation. For some reason, Mr. Fitzhugh is overcome by a fit of patriotism in August of 2009, he signs up for the United States military and he goes over to Afghanistan, he's going to serve over in Afghanistan, like so many of us have done, not me—." At this point, the trial court overruled Fitzhugh's counsel's objection. The prosecutor continued: "He's no longer in California. Does this murder happen? Does this murder happen? But for Alphonze Fitzhugh, but for his wants, his extreme wants, his obsession with greed and envy over Evan . . . , his absolute distaste for this individual, which may or may not be warranted, but because you dislike something, are jealous of what they have, doesn't mean that you are going to try to plan to rob a person once, twice, three times, four times until the fifth time is a charm. [¶] But for . . . Alphonze Fitzhugh, Britani . . . would be alive today. No question. There's no doubt about that. [¶] Because of that, he's a major participant."
Counsel for Fitzhugh concluded her closing argument by stating, "Thank you very much, and I bid you peace." The prosecutor concluded his rebuttal argument with, "Bring peace to [Britani's] family. [¶] Thank you." The court recessed for the rest of the day. The following morning, Barnes's counsel objected to the prosecutor's closing comment and Fitzhugh's counsel joined in the objection. The prosecutor argued he did not commit misconduct and that his closing comment was directed at deflecting Fitzhugh's counsel's closing comment. Barnes's counsel requested that the jury be admonished to disregard the statement. The trial court overruled the request. It noted that the jury instructions tell the jury they are not to be guided by sympathy for the defendants or the victims. "For one comment at the end, 'Bring peace to [Britani's] family,' I don't think is misconduct. Same thing, it was quietly spoken, it wasn't, you know, talking about how devastated they are . . . . He could have just said, 'Bring these two to justice.' "
2. Standard of Review
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) However, "the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' " (People v. Hill (1998) 17 Cal.4th 800, 820.) "Additionally, when the claim focuses upon comments made by the prosecutor 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." (People v. Samayoa, supra, at p. 841.)
3. Reference to Bringing Peace
Defendants assert the prosecutor committed prosecutorial misconduct in asking the jury to bring peace to the victim's family. "It has long been settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial." (People v. Fields (1983) 35 Cal.3d 329, 362.) Likewise, it is misconduct for the prosecutor to argue that the jury should consider the impact of the crime on the victim's family. (People v. Vance (2010) 188 Cal.App.4th 1182, 1193.)
By not objecting until the following day, defendants forfeited their claim by their failure to make a timely objection. (People v. Hamilton (2009) 45 Cal.4th 863, 950-951; Rajii v. Gatica (2013) 218 Cal.App.4th 1402, 1412.) But, even if we consider the claim on the merits, "we see no reasonable probability that the prosecutor's brief and isolated comments could have influenced the jury's guilt determination." (People v. Medina (1995) 11 Cal.4th 694, 759, 760 ["the prosecutor asked the jury to 'do the right thing, to do justice, not for our society, necessarily or exclusively, but for Craig Martin, an 18 year-old boy who was just working at a gas station one night' "].) Moreover, the trial court instructed the jury not to let "bias, sympathy, prejudice or public opinion" to influence its decision. "We presume the jury followed the court's instruction." (People v. Martinez (2010) 47 Cal.4th 911, 957.)
4. Illustration of Military Enlistment
Fitzhugh contends the prosecutor committed misconduct by smearing his character and contrasting him with someone who chose to serve his or her country. " 'It is, of course, improper to make arguments to the jury that give it the impression that "emotion may reign over reason," and to present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." ' " (People v. Redd (2010) 48 Cal.4th 691, 742.) But a prosecutor is " ' " 'given wide latitude' " ' " during closing argument and " ' " 'may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' " ' " (People v. Hill, supra, 17 Cal.4th at p. 819.) We disagree that the prosecutor's illustrative example would have biased the jury against Fitzhugh. Indeed, the prosecutor noted that he had not enlisted himself. Rather, the prosecutor was illustrating a larger point that if, for some reason, Fitzhugh was removed from the situation entirely, this crime would have never occurred. "[F]or the prosecutor to use illustrative analogies to argue the point was not improper." (People v. Cole (2004) 33 Cal.4th 1158, 1203 [prosecutor mentioned Spanish Inquisition and the persecution of early Christians to make "the point that fire has historically been used as an instrument of torture and is generally known to cause extreme pain"].) The fact that Fitzhugh used the tag line "yA bOy FlyA ThAn A 911 tErRoRisT" does not alter our conclusion. "But even if we found these brief references were misconduct, we do not assume the jury applied those references in an erroneous or improper manner or even that it drew the most damaging meaning from them; reversal is not required." (People v. Jablonski (2006) 37 Cal.4th 774, 837.) C. Cumulative Prejudice
We reject defendants' contention that reversal is required based on the cumulative effect of the purported prosecutorial misconduct and the tag line evidence. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.) This is not such a case. "To the extent we concluded or assumed that the trial court erred, no single error warrant[s] reversal, and we are not persuaded that reversal is warranted when those same nonprejudicial errors are considered collectively." (People v. Nelson (2011) 51 Cal.4th 198, 224-225.) D. Fitzhugh's Conviction for Attempted Murder
Fitzhugh argues the evidence was insufficient to support his conviction for attempted murder because there was no evidence that he intended to kill Evan. We disagree.
" '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 act or advice aids, promotes, encourages or instigates, the commission of the crime." ' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) "[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill." (People v. Lee (2003) 31 Cal.4th 613, 624.)
To the extent Fitzhugh alleges some jury confusion regarding these requirements, we decline to " 'extricate [this claim] from the mass.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
We "review the whole record in the light most favorable to the judgment . . . to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) In other words, " 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Nguyen, supra, 61 Cal.4th at p. 1055.) " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' " (Ibid.)
There was sufficient evidence that Fitzhugh's plot assumed Barnes would shoot Evan. Both defendants communicated to the other a need for more ammunition, and Fitzhugh solicited someone to buy boxes of ammunition for him. He also knew that Barnes had obtained gloves for firing a weapon. Fitzhugh obtained bullet-proof vests. There was substantial evidence Fitzhugh intended for Evan to be killed. E. Fitzhugh's Felony-Murder Special Circumstance Finding
Fitzhugh contends this is "unfounded speculation" and "it is improbable that the gloves were worn because a shooting was intended." We disagree. Michael testified broadly that the gloves should be used while firing a weapon, and then more specifically that the purpose of the gloves was to keep fingerprints off the gun. It is reasonable to infer than an individual who plans to fire a weapon may intend to dispose of it later and thus would be concerned about his fingerprints staying on the gun. Fitzhugh argues "[g]loves are commonly worn by robbers to avoid leaving fingerprints at the scene of the crime." This might be true. It might also be true that gloves can be worn by shooters to minimize gunshot residue on the shooter's hands. (See People v. Snow (2003) 30 Cal.4th 43, 58 ["The [gunshot] residue test proved negative, but, according to an expert, this result was inconclusive as to whether defendant had fired a gun; residue would be absent if a shooter wore gloves while firing"].) Regardless, Michael's testimony supports the conclusion that, for defendants, the gloves indicated a shared intent to fire the gun.
In supplemental briefing, Fitzhugh contends the evidence was insufficient to support the felony-murder special circumstance finding as to him. "In the case of first degree felony murder, 'every person, not the actual killer, who, with reckless indifference to human life and as a major participant' aids or abets the crime may be convicted of special circumstance murder. (§ 190.2[, subd. ](d).) The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life." (People v. Banks (2015) 61 Cal.4th 788, 798, fn. omitted (Banks).) As a general matter, the two elements are interrelated such that " 'the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.' " (People v. Clark (2016) 63 Cal.4th 522, 615 (Clark).) Fitzhugh does not challenge that he was a major participant, but argues the evidence was insufficient that he acted with reckless indifference to human life.
Alternatively, aiders and abettors who act with the intent to kill may be convicted of special-circumstance murder regardless of whether their conduct makes them major participants in the crime. (§ 190.2, subd. (c); see Banks, supra, 61 Cal.4th at p. 798, fn. 4.) As in Banks, it appears that the prosecution "rel[ied] exclusively on the theory [the defendant] was a major participant who acted with reckless indifference to human life." (Banks, supra, at p. 798, fn. 4.)
Reckless indifference "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Clark, supra, 63 Cal.4th at p. 617.) Acting recklessly "encompasses both subjective and objective elements. The subjective element is the defendant's conscious disregard of risks known to him or her. But recklessness is not determined merely by reference to a defendant's subjective feeling that he or she is engaging in risky activities. Rather, recklessness is also determined by an objective standard, namely what 'a law-abiding person would observe in the actor's situation.' (Model Pen. Code, § 2.02, subd. (2)(c).) The commentary to this section of the code makes this clear: '[T]he point is that the jury must evaluate the actor's conduct and determine whether it should be condemned. The Code proposes, therefore, that this difficulty be accepted frankly, and that the jury be asked to measure the substantiality and unjustifiability of the risk by asking whether its disregard, given the actor's perceptions, involved a gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe.' (Model Pen. Code & Commentaries, com. to § 2.02, p. 237, fn. omitted.)" (Ibid.)
In Clark, our Supreme Court identified the following factors to consider when determining whether a non-shooter aider and abettor acted with reckless indifference to human life in armed robbery felony murders: (1) knowledge of weapons, and use and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the felony; (4) the defendant's knowledge of a cohort's likelihood of killing; and (5) the defendant's efforts to minimize the risks of the violence during the felony. (Clark, supra, 63 Cal.4th at pp. 618-621.) " '[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.' " (Id. at p. 618.)
Fitzhugh contends his facts are similar to those set forth in Banks, which was decided about a year before Clark. In Banks, in holding that the evidence was insufficient to establish reckless indifference to human life, our Supreme Court explained, "There was evidence from which the jury could infer [the getaway driver] knew he was participating in an armed robbery. But nothing at trial supported the conclusion beyond a reasonable doubt that [the driver] knew his own actions would involve a grave risk of death." (Banks, supra, 61 Cal.4th at p. 807.) The court compared the facts of its case to the United States Supreme Court opinion on which section 190.2, subdivision (d) was based and an earlier decision: "There was no evidence [the driver] intended to kill or, unlike the Tisons [in Tison v. Arizona (1987) 481 U.S. 137], knowingly conspired with accomplices known to have killed before. Instead, as in Enmund [v. Florida (1982) 458 U.S. 782] [the shooter]'s killing of [the victim] was apparently a spontaneous response to armed resistance from the victim." (Banks, supra, at p. 807.) Fitzhugh contends there was no evidence he intended to kill, or believed Barnes had killed before, and "Barnes's firing his gun apparently was a spontaneous response to [Evan]'s action of throwing a drink at Barnes, rather than complying with the robbery, and Britani's screaming." Fitzhugh's argument and briefing ignore our duty to review the evidence " 'in the light most favorable to the prosecution' " and "presume, in support of the judgment, the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Clark, supra, 63 Cal.4th at p. 610.) The suggestion that the firing of the weapon was a spontaneous response ignores Evan's testimony about the sequence of events and that Barnes fired his weapon multiple times. Additionally, after having others conduct surveillance on Evan, Fitzhugh determined there was a need to test bullet-proof vests before the robbery and to ask what caliber of ammunition they could stop. Fitzhugh also sought someone to purchase boxes of ammunition in preparation for the robbery. Furthermore, Fitzhugh was aware Barnes had obtained gloves for the purpose of firing his weapon. There was substantial evidence to support the conclusion that, as to this armed robbery, under either an objective or a subjective standard, Fitzhugh knew his participation involved a grave risk of death.
Our analysis of the Clark factors confirms our conclusion that the prosecution introduced sufficient evidence to support the special circumstance finding against Fitzhugh beyond a reasonable doubt:
1. Knowledge of Weapons, and Use and Number of Weapons
The evidence introduced by the prosecution showed Fitzhugh was aware that Barnes had a gun, and that it was loaded with at least several bullets. Though this knowledge is important, a defendant's awareness that a gun will be used in the felony is not enough by itself to establish reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 618.) "A defendant's use of a firearm, even if the defendant does not kill the victim or the evidence does not establish which armed robber killed the victim, can be significant to the analysis of reckless indifference to human life." (Ibid.) Barnes contends, based on the ballistics evidence, that there was evidence of two shooters. In contrast to this assertion, the jury found not true that Fitzhugh personally and intentionally discharged a firearm. And there is no indication that anyone other than Fitzhugh and Barnes were present at the crime scene.
2. Physical Presence at the Crime and Opportunities to Restrain the Crime and/or Aid the Victim
"Proximity to the murder and the events leading up to it may be particularly significant where . . . the murder is a culmination or a foreseeable result of several intermediate steps, or where the participant who personally commits the murder exhibits behavior tending to suggest a willingness to use lethal force. In such cases, 'the defendant's presence allows him to observe his cohorts so that it is fair to conclude that he shared in their actions and mental state. . . . [Moreover,] the defendant's presence gives him an opportunity to act as a restraining influence on murderous cohorts. If the defendant fails to act as a restraining influence, then the defendant is arguably more at fault for the resulting murders.' " (Clark, supra, 63 Cal.4th at p. 619.) The failure to render aid may also be considered. (Ibid.) "At the same time, physical presence is not invariably a prerequisite to demonstrating reckless indifference to human life. Where, for example, a defendant instructs other members of a criminal gang carrying out carjackings at his behest to shoot any resisting victims, he need not be present when his subordinates carry out the instruction in order to be found to be recklessly indifferent to the lives of the victims." (Ibid.) Fitzhugh may have been in the car at the time of the shooting, but he heard two shots and Britani's scream. Unlike in Clark, Fitzhugh drove away without knowing that help in the form of police intervention was arriving. (Id. at p. 620.) Nonetheless, we do not conclude that this factor necessarily weighs in favor of concluding Fitzhugh demonstrated reckless indifference to human life. (See ibid. ["Defendant's absence from the scene of the killing and the ambiguous circumstances surrounding his hasty departure make it difficult to infer his frame of mind concerning [the victim's] death"].)
3. Duration of the Felony
"Courts have looked to whether a murder came at the end of a prolonged period of restraint of the victims by defendant. . . . Where a victim is held at gunpoint, kidnapped, or otherwise restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder. The duration of the interaction between victims and perpetrators is therefore one consideration in assessing whether a defendant was recklessly indifferent to human life." (Clark, supra, 63 Cal.4th at p. 620, fn. omitted.) Here, the evidence suggests the crime occurred over a relatively brief time period. The duration was short, however, in part because defendants apparently planned for the interaction to be violent and Evan ran. We will give Fitzhugh the benefit of the doubt on this factor, but it ultimately does not weigh heavily in our analysis.
4. Fitzhugh's Knowledge of Barnes's Likelihood of Killing
"A defendant's knowledge of factors bearing on a cohort's likelihood of killing are significant to the analysis of reckless indifference to human life. Defendant's knowledge of such factors may be evident before the felony or may occur during the felony." (Clark, supra, 63 Cal.4th at p. 621.)
As we discussed above, after having others conduct surveillance on Evan, Fitzhugh determined there was a need to test bullet-proof vests before the robbery and to ask what caliber of ammunition they could stop. Fitzhugh also sought someone to purchase boxes of ammunition in preparation for the robbery. Additionally, Fitzhugh knew Barnes had obtained gloves for the purpose of firing his weapon. There was substantial evidence to support the conclusion that Fitzhugh was aware Barnes would kill.
5. Fitzhugh's Efforts to Minimize the Risks of the Violence During the Felony
"[A] defendant's apparent efforts to minimize the risk of violence can be relevant to the reckless indifference to human life analysis. If the evidence supports an argument that defendant engaged in efforts to minimize the risk of violence in the felony, defendant may raise that argument and the appellate court shall consider it as being part of all the relevant circumstances that considered together go towards supporting or failing to support the jury's finding of reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 622.) However, "a defendant's good faith but unreasonable belief that he or she was not posing a risk to human life in pursuing the felony does not suffice to foreclose a determination of reckless indifference to human life." (Ibid.) In Clark, there was evidence in the record that the defendant had taken efforts to minimize the risks of violence: "First, the attempted robbery was undertaken after closing time, when most of the employees had left the building. Second, there were not supposed to be any bullets in the gun . . . . Third, the gun, as recovered after the shooting, had only been loaded with one bullet." (Id. at pp. 621-622.) We anticipate Fitzhugh would argue, as he has elsewhere in his brief, that he was waiting to rob Evan when he was alone and Britani and her family were not around to reduce the risk of violence. Viewing the record in the light most favorable to the prosecution, we do not reach the same conclusion. The phone records demonstrate Fitzhugh directed Barnes when it was time to act. Britani was driving, and Fitzhugh's text messages show he recognized her car. We can therefore infer that Fitzhugh knew when he alerted Barnes to the car's arrival that Evan was not alone. Britani's mother, James and V.S. were also home at the time of the murder. Furthermore, substantial evidence supports the conclusion that Fitzhugh took steps that increased the risk of violence during the felony, such as his procurement of bullet-proof vests and obtaining more ammunition. Thus, any argument Fitzhugh would make regarding his efforts to minimize the risk of violence during the felony would not be sufficient to alter our conclusion.
To summarize, after considering the "aspects of the present felony that provide insight into both the magnitude of the objective risk of lethal violence and a defendant's subjective awareness of that risk" (Clark, supra, 63 Cal.4th at p. 623), we conclude sufficient evidence supports the jury's finding Fitzhugh acted with reckless indifference to human life while participating in the robbery. While Fitzhugh may have stayed in the getaway car, he planned an encounter that he subjectively did and objectively should have understood involved a grave risk of death. This is sufficient to uphold Fitzhugh's special circumstance finding. F. Marsden
1. Trial Court Proceedings
At the January 14, 2013, sentencing hearing, Barnes's counsel explained that Barnes wanted to address the court. The following exchange occurred:
"DEFENDANT BARNES: We've been having trouble with our counsel for the last few months. We have been trying to file a mistrial. They have been giving us the run-around. [¶] I have sound grounds for a mistrial, but my counsel just informed me that it was too late to do that, that we should have did that during trial. [¶] I had no clue about that. I got more evidence of ineffective assistance of counsel. He should have informed me of that. [¶] He's not informed me of my rights. So I mean I can either read what I have written, which the last time I put it on Cal Crim so it's understandable, or I can give it to you or
"THE COURT: At this time, Mr. Barnes, we're on for pronouncement of judgment, and at the end
"THE DEFENDANT: I wasn't informed of anything.
"THE COURT: At the end of this, I'll let you know you'll have 60 days to appeal. [¶] Is there anything else you want to say?
"THE DEFENDANT: Yeah. It's grimy out here. You don't give nobody a fair chance."
2. No Clear Request for Substitute Counsel
Barnes contends this exchange was sufficient to trigger the court's duty to conduct a Marsden hearing. We disagree. Because Barnes never made an explicit request for substitute counsel, the argument fails.
In People v. Sanchez (2011) 53 Cal.4th 80, our Supreme Court disapproved authority including People v. Mejia (2008) 159 Cal.App.4th 1081 and People v. Mendez (2008) 161 Cal.App.4th 1362, to the extent they "incorrectly implied that a Marsden motion can be triggered with something less than a clear indication by a defendant, either personally or through current counsel, that the defendant 'wants a substitute attorney.' " (People v. Sanchez, supra, at p. 90, fn. 3.) Barnes now relies on these disapproved authorities and another case that followed them (People v. Reed (2010) 183 Cal.App.4th 1137) to claim that the fact he indicated a wish to make a new trial motion predicated on ineffective assistance of counsel was sufficient to trigger a Marsden hearing. It is not. "[A] request for a new trial based on a defendant's claim of ineffective assistance of counsel does not trigger the court's duty to conduct a Marsden hearing if the defendant's desire for substitute counsel is not made clear." (People v. Richardson (2009) 171 Cal.App.4th 479, 484.) The trial court did not err in failing to conduct a Marsden hearing.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
ROBIE, Acting P. J.
/S/_________
BUTZ, J.