People v. Duley

Full title: THE PEOPLE, Plaintiff and Respondent, v. KELLY MICHAEL BRIAN DULEY…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jun 17, 2020

No. F077020 (Cal. Ct. App. Jun. 17, 2020)

Opinion

F077020

06-17-2020

THE PEOPLE, Plaintiff and Respondent, v. KELLY MICHAEL BRIAN DULEY, Defendant and Appellant.

Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Robert C. Nash, and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13907121)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Anne V. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Robert C. Nash, and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Kelly Michael Brian Duley struck Sarah F.¹ in the face with a cocktail glass during a bar fight. A jury convicted him of battery with serious bodily injury (Pen. Code, § 243, subd. (d);² count 1), and assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1); count 2), with an enhancement to each count for personally inflicting great bodily injury (§ 12022.7, subd. (a)). In bifurcated proceedings, the trial court found defendant had suffered two prior serious felony convictions which also constituted strikes. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d).) He was sentenced to an aggregated term of 38 years to life.

1 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.

2 Undesignated statutory references are to the Penal Code.

Defendant's points on appeal are numerous. He contends (1) the court erroneously instructed the jury on an inapplicable portion of the definition of "deadly weapon"; (2) the prosecutor engaged in several instances of misconduct during closing argument; (3) the court should have held a competency hearing pursuant to section 1368 after defendant disrupted closing argument; (4) trial counsel was ineffective in several instances; (5) these errors cumulatively prejudiced his right to due process; (6) his post-conviction Faretta ³ request was improperly granted and/or his self-representation should have been terminated at the sentencing hearing; (7) the trial judge engaged in misconduct; and (8) the matter must be remanded to a new sentencing judge to permit the court to consider striking defendant's prior serious felony convictions pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill No. 1393). As to the last point, the People agree that the matter must be remanded for the trial court to consider striking the prior serious felony convictions pursuant to the discretion granted by Senate Bill No. 1393.

3 Faretta v. California (1975) 422 U.S. 806 (Faretta).

We remand the matter for the trial court to consider whether to exercise its discretion to strike defendant's prior serious felony convictions. We find no basis to require resentencing be conducted by a different judge. In all other respects, we affirm.

PROCEDURAL HISTORY

Defendant was charged with one count of battery with great bodily injury and one count of assault with a deadly weapon, both with enhancements for personally inflicting great bodily injury. The information further alleged that he had suffered two prior serious felony convictions which also constituted strikes.

Shortly before the original trial date, defendant was arrested for solicitation to commit murder (§ 653f, subd. (b)). In that second case, law enforcement investigated allegations defendant made threats against the deputy district attorney assigned to prosecute the instant case. Based on that second case, defendant filed a motion in the instant case to recuse the Fresno County District Attorney's Office. Defendant's retained counsel then filed a motion to withdraw as attorney of record citing a conflict of interest. Because the Attorney General's Office had not been served with the motion as required under section 1424, subdivision (a)(1), Judge Alvin M. Harrell III denied the motion without prejudice. Judge Harrell also granted defense counsel's motion to withdraw as attorney of record and appointed different counsel to represent defendant. The second case was dismissed soon thereafter due to insufficient evidence. The motion to disqualify the Fresno County District Attorney's Office was not renewed.

Thereafter, Judge Harrell disqualified himself⁴ and the matter was assigned to Judge Timothy A. Kams. The trial court subsequently denied defendant's Marsden ⁵ motion and, a few days later, defendant substituted privately retained counsel in place of his appointed counsel. The matter then proceeded to trial with defendant represented by retained counsel.

4 According to the People, Judge Harrell did so after he was named in a lawsuit brought by defendant.

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

The jury found defendant guilty on both counts and found both enhancements to be true. Following the jury trial, defendant substituted new counsel in place of his trial counsel. In a bifurcated bench trial, the trial court found the prior conviction allegations to be true.

Defendant then brought a motion for new trial, which was denied. Retained counsel moved to withdraw as attorney of record and his motion was granted. Defendant requested to represent himself and his request was granted. Defendant immediately stated his intent to bring a motion pursuant to section 170.1 of the Code of Civil Procedure to disqualify Judge Kams, and later brought an oral motion to disqualify Judge Kams pursuant to section 170.6 of the Code of Civil Procedure, which was denied as untimely. Defendant filed "170.1 Motion to Disqualify Judge (For Cause)." His motion was denied by a judge from another county.

Defendant filed a petition for writ of prohibition in this court challenging the denial of his disqualification motion. His petition was denied. (Duley v. Superior Court (Dec. 20, 2017) F076654.)

The trial court subsequently sentenced defendant on count 2 to 38 years to life. That term included 25 years to life for the substantive offense, three years for the great bodily injury enhancement, and 10 years for the two prior serious felony conviction enhancements. Sentence on count 1 was imposed and stayed.

Defendant filed, in propia persona, a timely notice of appeal, followed by several petitions. Specifically, defendant filed a petition for writ of mandate in the Supreme Court, which was transferred to this court (Duley v. Superior Court (Mar. 6, 2018) S247372), and then denied (Duley v. Superior Court (Mar. 29, 2018) F077134). Defendant filed three petitions in this court, all on the same day, and all of which were denied without prejudice. (Duley v. Superior Court (Mar. 16, 2018) F076789; Duley v. Superior Court (Mar. 15, 2018) F076790; Duley v. Superior Court (Mar. 16, 2018) F076792.)

Counsel was eventually appointed to represent defendant on appeal.

FACTUAL BACKGROUND

In July 2013, defendant and Sarah F. got into an altercation at a sports bar in Fresno, culminating in defendant hitting Sarah in the face with a cocktail glass. The glass shattered and Sarah suffered several lacerations, resulting in 29 stitches to her face and nine to her chest. She still had scarring at the time of trial, in March 2017.

As explained below, the events leading up to the altercation were disputed at trial.

Sarah's Testimony

Sarah testified that she regularly went to this particular sports bar on Tuesday nights to sing karaoke and had seen defendant there before but had no prior contact with him. On the night of the incident, she went to the sports bar to sing karaoke with a group of friends and, over the course of several hours, drank three to four drinks. That day, she had taken her regular, small, daily dose of a prescribed medication for treatment of a mental health condition. She did not feel that the alcohol or the medication affected her perception or recall.

Eventually, Sarah decided to leave the establishment and approached the bar to close out her tab. Near the bar, defendant grabbed her around the waist, pulled her into him, and told her she "could pay [her] tab right there." Sarah understood this as a sexual advance. Sarah asked defendant five or six times to "let go of [her]," and her friend Donovan B. also asked defendant to let go of her, but defendant would not. Defendant "got aggressive" and said, "I'm not even touching you." Sarah "slapped [defendant] to startle him so that he would let [her] go," and he did.

Sarah went to an outside patio to inform security of this encounter. She asked that defendant be "kicked out" (boldface omitted) of the bar, but they refused because they had not witnessed the incident. Donovan returned to the bar to inquire about Sarah's tab but was told she could pay another time. He then returned to the patio.

Defendant came out to the patio holding a glass and walked past Sarah and Donovan. At that point, Sarah was not feeling any effects of having consumed alcohol. Defendant turned to face Sarah; Donovan was between Sarah and defendant, also facing Sarah. Defendant thanked Sarah for slapping him and stated he loved being slapped. Sarah stated, "I wasn't slapping you to get you off, I was slapping you to get your hands off of me." At that point, "it got very tense out there." Defendant began yelling and called Sarah a whore. Sarah yelled back. "[I]t got heated to the point where [Sarah] felt like [defendant] was coming over Donovan at [her]." Sarah "ducked down towards [her] right and swung up and hit [defendant]" in his jaw with her right fist. Defendant stepped back and threw his drink "all over" Sarah and Donovan from a distance of approximately two to three feet. Sarah and Donovan turned to look at defendant and defendant then hit Sarah in the face with his glass in his hand, using an overhand swing. Approximately 30 seconds passed between defendant throwing his drink and hitting Sarah with his glass.

Sarah did not have a beer bottle in her hand and did not strike defendant with a beer bottle or see anyone else strike him with a beer bottle.

Donovan's Testimony

Donovan B. went to the sports bar with a female friend who, on the night of the incident, complained to him about defendant. Donovan did not recall telling Sarah about his friend's complaints.

Donovan testified that, when Sarah went to the bar to pay her tab, defendant grabbed her by the hips to pull her close to him. Sarah took offense at this and asked numerous times to be let go, but defendant hesitated. Donovan did not intervene. Eventually, Sarah pushed defendant's hands away and stepped back. Defendant stated, "If you had disliked what was done, you can slap me if it would make you feel better." Sarah slapped defendant then went outside to smoke. Donovan also went to the patio to try to calm Sarah, whose eyes were welling up with tears. Sarah did not appear heavily intoxicated and Donovan was still drinking his first drink of the night.

Eventually, defendant came out to the patio and lit a cigarette. He thanked Sarah for slapping him and said it was invigorating. Donovan was between Sarah and defendant, with his back to defendant, and was trying to convince Sarah to go inside. Then, "[o]ne second a hand went this way, and the other - all of a sudden there's a glass being smashed on her face from [Donovan's] right." The glass came down onto Sarah's face in a downward angle, with an overhand motion. Donovan could not recall whether defendant threw a drink at them. Donovan heard Sarah slap defendant but did not see it. He did not see Sarah holding a beer bottle or striking defendant with a beer bottle at any point.

Testimony of the Sports Bar Personnel

Jerrell C. was a bouncer at the sports bar and was at the door, adjacent to the patio, checking identification on the night of the incident. He stepped inside the door briefly to talk to Sarah when she approached him to complain about a customer. Jerrell did not recall the content of her complaint, but denied that she stated she was grabbed or touched. In his report of the encounter, he wrote that Sarah had an issue with a customer who was rude, and that she had hit him.

Jerrell told Sarah to step out onto the patio while he conferred with another bouncer, Justin P. regarding what to do. Jerrell stepped outside to talk with Justin and, within a matter of minutes, defendant walked out onto the patio. Jerrell saw Sarah and defendant get closer to one another, arguing or talking emotionally. Jerrell stepped closer to the gate that separated him from the patio. As Jerrell did so, Sarah slapped defendant and defendant poured a drink on her. Then, Sarah hit defendant with a closed fist and Jerrell jumped the fence to get to them. At that point, defendant smashed a glass on Sarah's face, using an "upper motion" to the side of the face. Jerrell could not state whether the action was malicious or merely reflexive because, at the time of "the slap and the pour and the hit," he was jumping over the fence. He did not see Sarah hit defendant with a beer bottle.

Justin P. testified that he was working the door at the sports bar on the night of the incident when Sarah approached he and Jerrell to report an altercation inside. After he and Jerrell told her they would look into it, defendant came out to the patio. Defendant and Sarah began yelling. Sarah yelled for defendant to stop or knock it off or leave her alone, but defendant did not leave her alone. Sarah attempted to slap defendant and defendant threw a drink at her. Sarah attempted another swipe, and possibly made contact, "at which time the return of the empty glass was pushed into her face with enough force to shatter it." Justin did not see Sarah with a beer bottle in her hand and did not see her, or anyone, use a beer bottle to hit defendant. Jerrell went over the rail to detain defendant and Justin flagged down a police officer who had just driven by.

Michael L. was the owner of the sports bar on the date of the incident. At that time, the sports bar had seven or eight security cameras and all were working, with the exception of the camera on the patio. Michael turned the available video over to police about two weeks after the incident, and also gave the video to defense counsel. He denied that he eliminated video footage of the patio area to avoid civil liability, but admitted he was sued by defendant approximately two years after the incident. At some point after the incident, defendant visited Michael at another location and Michael felt threatened by him.

Video footage from the sports bar from the night of the incident was admitted into evidence, but the parties stipulated that it did not depict the offense.

Additional Prosecution Witnesses

Christian P. testified he was entering the sports bar when he saw defendant swing at Sarah in an overhand motion with a cocktail glass in his hand, then saw Sarah grab her face and "blood [was] everywhere."

Tobias O. was at the sports bar when the incident occurred, but did not see it. Several weeks later, Tobias was standing at a bus stop when defendant pulled up in his truck. Defendant asked Tobias to testify against Sarah on his behalf but did not specify what he wanted Tobias to say. Defendant asked Tobias several times to testify and, when Tobias continued to decline, defendant offered him an unspecified sum of money to testify. Tobias told defendant the victim did not deserve to be hit, and that defendant broke the law and "deserves what he gets" (boldface omitted). Defendant drove away. Tobias felt that defendant was attempting to make Tobias lie for him.

A senior investigator for the district attorney's office testified that she interviewed Tobias both by phone and in person. Tobias stated defendant offered him money to testify that Sarah started the fight.

The police officer who responded to the sports bar testified that he was flagged down by security personnel and arrived to find defendant on the ground with his hands cuffed behind him. The officer removed everyone from the patio and advised an employee who was cleaning up to stop immediately. He did not see the employee remove anything from the crime scene. He saw shattered glass consistent with a cocktail glass, but did not see any shattered beer bottles. Defendant had swelling to his left lower lip and his left pinky and middle finger had small lacerations consistent with being cut with glass. Defendant's exterior lip was not bleeding, and he had no cuts, scrapes, or any injuries consistent with being struck by a beer bottle. Defendant was calm and cooperative, but appeared to be intoxicated. Sarah reported that she slapped defendant but did not report that she hit him with a closed fist.

Defendant's Testimony

Defendant testified that he arrived at the sports bar at approximately 11:00 p.m. on July 16, 2013, and sat at the bar near a "very attractive young lady" named Eva with whom he had a "lengthy and delightful" conversation. At one point, Donovan came and stood awkwardly between defendant and Eva. Defendant asked whether Eva and Donovan were boyfriend and girlfriend and they both said no. This caused an "awkward silence" and, "to lighten the mood," defendant bought 10 "kamikaze shooters" for himself, Eva, Donovan, Tobias, another couple at the bar, and three "very beautiful girls" who were seated behind him.

Defendant explained that both Donovan and Tobias were acquaintances of his from the sports bar. He also recognized Sarah when she came to the sports bar on the night of the incident. He explained that he first saw her six weeks earlier, when she was on the patio at the sports bar looking distraught. At that time, defendant said hello and Sarah began flailing her arms and said, "Oh, dude, don't even try to hit on me again. You hit on me every time you see me when I'm here." Defendant told her he had never seen her before and did not find her attractive. He told her to have a good day and left the patio, and did not see her again until the night of the incident.

On the night of the incident, defendant saw Sarah near the bar and acknowledged her with a brief nod. At that point, he was unsure how he recognized her. Then, while defendant had his hands on the back of his chair, Sarah's eyes moved rapidly between him and the bartender, and she suddenly slapped defendant hard. Defendant realized she was the "crazy girl" he met before. A bartender yelled at Sarah, and Jerrell, the bouncer, ejected her from the bar. Defendant then sat down and continued his conversation with Eva.

Eventually, defendant went out to the patio for a cigarette, taking with him his drink in a plain, 16-ounce pint glass. He testified that the cocktail glass presented by the prosecution was not his glass. Once on the patio, defendant turned around and saw Sarah seated near the door, smirking and sneering at him. Defendant "let her have it," stating, "What the hell is wrong with you?" and "I don't know you. You are not my girlfriend. I'm not attracted to you. I don't even like it like that," motioning toward her body, "I like it like that," motioning toward another woman's body. Sarah leaned across a pub table and slapped defendant hard. Defendant threw the remaining liquid in his glass in Sarah's face. Sarah immediately picked up a Bud Light bottle that was on the table in front of her, raised it over her head, and hit him on the chin with the bottom of the bottle, shattering it. Defendant had no recollection of anything else that occurred until he found himself on the ground with his left hand in front of him trying to keep his face from hitting the concrete. He was then "tossed around" and "man-handled" and ended up handcuffed in the walkway of the entrance to the sports bar.

While he was handcuffed on the ground in front of the sports bar, he saw people cleaning up the patio and saw blood coming from his own mouth, creating a puddle of blood on the ground measuring a foot in diameter. The responding police officer took him to an ambulance and asked medical personnel to clean the blood off of him before photographing his injuries.

Defendant testified regarding photographs that he claimed were taken by a retired sheriff's deputy and showed injuries he sustained in the incident. He testified that a photograph taken within 24 hours of the incident showed facial swelling. Photographs taken within 48 hours of the incident showed the inside of his lip was cut and bruised. Photographs taken approximately 72 hours later showed a circular bruise on the "outside of [his] face" from a beer bottle.

Defendant acknowledged he spoke with Tobias at a bus stop and told him he "knew what was going on" and needed to tell the truth. Tobias said he did not want to get involved. Defendant denied offering Tobias money.

Defendant acknowledged he filed a civil suit for damages against Sarah, Donovan, the sports bar, the sports bar's owner, Jerrell, and the security company that employed the bouncers.

Defense Expert Witness

Dennis Newman testified as an expert for the defense. He testified that he began training in martial arts in 1975 with a member of the South Korean Special Forces, then trained in Shotokan Karate, American Kickboxing, and Muay Thai. He had been in hundreds of bouts with active striking, both in the street and in the ring, including two professional bouts and many amateur bouts. He had been hit in the head thousands of times and hit others in the head. He also had worked security in clubs where he saw others hit in the head. He explained that, nine times out of 10, a person being hit will strike back or put their hands or fists up or out to defend themselves. He described this as a "natural reaction" or "fight or flight reaction," particularly "if your bell is rung" because "you are technically out for a millisecond." (Boldface omitted.) He explained that the person being hit "might not know how hard that you are going to strike that other person or defend yourself because your mind is in survival mode at that point." This had happened to him and he had seen it happen to others.

On cross-examination, when Newman was asked whether the action of a person putting his hands up to defend himself would be voluntary or involuntary, he stated, "Uh, I believe it would be a voluntary, yes." On redirect, he stated the response would be "[a]utomatic."

Newman had never heard the term "proportional response" (boldface omitted). He had no college degree and had not studied anatomy or human impulse. He admitted he was convicted for battery and arrested for assault, and was convicted of "a lot [of crimes] when [he] was a bad boy in [his] younger days." Rudy R.

Rudy R. testified for the defense. He was working as a bartender at the sports bar on the night of the incident. He knew Sarah as a regular customer on weekly karaoke nights. If Sarah was being harassed by a customer, he would have helped resolve it. If she called out for help, he would have dropped what he was doing to help her. However, he acknowledged that karaoke night was busy, and that Sarah could have had an interaction with someone that he did not see.

DISCUSSION

I. Instructional Error

Defendant contends, and the People concede, the jury was instructed with an inapplicable portion of the definition of "deadly weapon" for the offense of assault with a deadly weapon. We agree the contested instruction was erroneous, but determine the error was harmless beyond a reasonable doubt.

Defendant was convicted of assault with a deadly weapon other than a firearm in violation of section 245, subdivision (a)(1). " 'As used in section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." ' " (In re B.M. (2018) 6 Cal.5th 528, 532-533 (B.M.), quoting People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) Our Supreme Court has determined that some objects are inherently dangerous or deadly and are therefore considered deadly weapons as a matter of law. (Aguilar, at p. 1029 [recognizing that dirks and blackjacks have been held to be deadly weapons as a matter of law].) For the remaining objects that do not qualify as inherently deadly or dangerous, "the object alleged to be a deadly weapon must be used in a manner that is not only 'capable of producing' but also ' "likely to produce death or great bodily injury." ' " (B.M., at p. 533.) In other words, a deadly weapon may either be inherently deadly, or deadly in the way defendant used it.

Here, the jury was instructed that "[a] deadly weapon other than a firearm is any object, instrument or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury." This instruction accurately stated the law. However, as the parties agree, a cocktail glass is not inherently deadly, and there was no evidence to suggest Sarah was struck by any other, inherently deadly object.⁶ (See People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat) [concluding a box cutter is not inherently deadly because " 'it is designed to cut things and not people' "]; Aguilar, supra, 16 Cal.4th at p. 1029 [describing inherently deadly weapons as those that are deadly as a matter of law].) The evidence therefore did not support instructing the jury on inherently deadly weapons. (See People v. Guiton (1993) 4 Cal.4th 1116, 1126-1129.)

6 Defendant testified he was holding a pint glass, rather than a cocktail glass. The type of beverage glass does not alter our analysis.

Our Supreme Court has recently determined that error in instructing the jury on an inapplicable theory of an inherently deadly weapon constitutes legal error that must be reviewed under the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. (Aledamat, supra, 8 Cal.5th at pp. 8, 13.)⁷ Under this standard, "[w]e must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Aledamat, at pp. 9-13.) In some instances, harmlessness may be apparent on the jury's findings, such as where the verdict on other points " ' "effectively embraces" ' " the point in doubt or when it is " ' "impossible, upon the evidence, to have found what the verdict did find" ' " without finding the contested point as well. (Aledamat, at p. 10.) However, our review is not limited to the verdict itself, and we may conclude, "after examining the entire cause, including the evidence, and considering all relevant circumstances," that an erroneous instruction on an inapplicable legal theory did not contribute to the verdict. (Id. at p. 13.)

7 Briefing in this case was completed before Aledamat issued. The parties dedicated substantial briefing to the question of whether the instructional error in this case constituted factual or legal error, and also briefed the then-evolving standard of review. As these issues have now been resolved by our Supreme Court, we do not address the parties' arguments on these points. We proceed directly to the question of harmlessness, which the parties also briefed.

Aledamat is instructive in our application of this test. In Aledamat, the defendant was alleged to have thrust the blade of a box cutter at another man from a distance of three to four feet. (Aledamat, supra, 8 Cal.5th at p. 4.) He was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) and making a criminal threat (§ 422), with an enhancement for personally using a deadly and dangerous weapon (§ 12022, subd. (b)(1)). (Aledamat, at p. 4.) As in the instant case, the court instructed the jury a weapon could either be inherently deadly or deadly in the way the defendant used it. (Ibid.) The prosecutor also argued in closing argument that a box cutter was an inherently deadly weapon. (Id. at p. 5.)

Nevertheless, our Supreme Court concluded the error was harmless. (Aledamat, supra, 8 Cal.5th at pp. 13-15.) In the court's view, the jury would not have understood the instruction to permit two separate ways it could find the box cutter to be a deadly weapon. (Id. at pp. 13-14.) First, the court concluded the definition's juxtaposition of inherently deadly objects with those that are " 'capable of causing and likely to cause death or . . . great bodily injury' " "at least indicates what the 'inherently deadly' language was driving at." (Ibid.) Second, in relation to the deadly weapon enhancement, the jury was instructed to consider " 'the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose.' " (Id. at p. 14; see id. at p. 21 [conc. & dis. opn. of Cuéllar, J.].) Given this instruction, the court determined it was unlikely the jury would not have considered how the box cutter was used in reaching its verdict on the assault charge. (Id. at p. 14.) Finally, the court noted the jury necessarily found true the substantive elements of the offense of assault with a deadly weapon and, even assuming the jury applied a common, colloquial understanding of " 'inherently deadly,' " necessarily found the box cutter was both capable of inflicting deadly harm and was used as a weapon. (Id. at p. 15.) Given these findings, the court determined the jury necessarily found the box cutter was used in a way that was capable of causing and likely to cause death or great bodily injury. (Ibid.)

The instruction given in the instant case is identical to that given in Aledamat. (Aledamat, supra, 8 Cal.5th at pp. 13-14.) As in Aledamat, we find the inapplicable reference to inherently deadly objects to be harmless beyond a reasonable doubt because it is clear the "inherently deadly" language did not contribute to the jury's verdict. (See id. at p. 15.) First, no rational juror could have concluded a cocktail glass is an inherently deadly weapon, even applying a colloquial or common-sense definition of the term, which our Supreme Court has suggested means "readily capable of inflicting deadly harm." (Ibid.) We also reject defendant's argument that the jury could have determined a cocktail glass is inherently dangerous because it could break and be sharp. Here, there was no evidence to suggest the glass was broken before defendant used it to hit Sarah in the face. Thus, if the jury considered the dangerousness of a broken glass, it necessarily considered the dangerousness of the glass as used, and therefore necessarily relied on the applicable portion of the definition of deadly weapon.

Second, although defendant contends portions of the prosecutor's argument could be construed to suggest the cocktail glass was an inherently deadly weapon, we disagree. In one instance, the prosecutor argued that a person cannot respond to a punch by pulling out a gun and shooting, pulling out a knife and stabbing, or pulling out a cocktail glass and smashing it on someone's face. In another instance, the prosecutor merely recited the elements of the offense of assault with a deadly weapon, one of which is that defendant have the present ability to apply force with a deadly weapon. The prosecutor then stated, "Present ability he had it in his hand, he had the ability to do it, and he did do it." Both statements concern the use of the cocktail glass, and not its inherently dangerous or deadly character. Significantly, we note defense counsel did not contest that the cocktail glass constituted a deadly weapon as used. (See Aledamat, supra, 8 Cal.5th at p. 14.) Doing so likely would have been futile given the evidence, which showed that Sarah's significant injuries resulted solely from defendant smashing a glass in her face.

Finally, we note the jury found true the enhancement alleging defendant had personally inflicted great bodily injury when he committed assault with a deadly weapon. It is simply inconceivable, on these facts, that a rational jury could have found the enhancement true without also finding that defendant's use of the glass was both capable of causing and likely to cause great bodily injury. (People v. Chun (2009) 45 Cal.4th 1172, 1204-1205 [finding error harmless where jury verdict on other points effectively resolves the disputed point].)

Accordingly, we are confident, beyond a reasonable doubt, that the erroneous mention of inherently deadly weapons in the jury instruction did not contribute to the jury's verdict. The error was harmless.

II. Prosecutorial Misconduct During Closing Argument

Defendant contends the prosecutor engaged in several instances of misconduct during closing argument that were prejudicial, both individually and cumulatively. To the extent his counsel failed to object to this misconduct, defendant contends counsel was ineffective. The People argue these contentions are forfeited, and in any event, are without merit and not prejudicial. We will address each alleged instance of misconduct in turn.

A. Law Regarding Prosecutorial Misconduct

" 'A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects " 'the trial with unfairness as to make the resulting conviction a denial of due process.' [Citation.]" [Citation.] The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' [Citation.] ' "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." ' " (People v. Young (2019) 7 Cal.5th 905, 932-933 (Young).)

B. Law Regarding Ineffective Assistance of Counsel

Defendant's claims of prosecutorial misconduct are generally forfeited, as discussed below. Defendant nonetheless asks us to reach the merits of his claims on the ground his counsel's failure to preserve his objection or request an admonition constitutes ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. Defendant bears the burden of demonstrating ineffective assistance of counsel. (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) " '[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.] Rarely is ineffective assistance of counsel established on appeal since the record usually sheds no light on counsel's reasons for action or inaction." (People v. Woodruff (2018) 5 Cal.5th 697, 736.) In determining whether counsel's performance was deficient, we consider whether " ' " 'counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.' " ' " (People v. Johnson (2016) 62 Cal.4th 600, 653.) However, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland).)

C. Commentary on Defendant's Demeanor

Defendant contends the prosecutor's closing argument improperly focused the jury on defendant's courtroom demeanor, and invited the jury to put itself in the victim's position in violation of the so-called "Golden Rule."

1. Additional Factual Background

Near the start of the prosecutor's closing argument, the prosecutor began "go[ing] through the sequence of events as you heard from the prosecution's witnesses," when defendant interjected. The relevant proceedings are as follows:

"[MR. JANZ (THE PROSECUTOR):] It starts out with the two parties, [Sarah] and the Defendant both being at [the sports bar], and the Defendant while [Sarah] was sitting at the bar trying to pay her tab, the Defendant grabbing her. Sarah testified that she said let go multiple times. And she freely admits to slapping him when the Defendant didn't let her go. Sarah goes outside to complain to the bouncers, Defendant follows her outside. Defendant calls Sarah --

"THE DEFENDANT: Objection.

"MR. JANZ: -- and her mother a whore.

"THE DEFENDANT: You're a liar. You're a liar.

"THE COURT: Mr. Duley?

"THE DEFENDANT: And you know it. I didn't call her a whore. I didn't do any God damn thing.

"THE COURT: Mr. Duley?

"THE DEFENDANT: Shame on you. Shame on you --

"MR. JANZ: This is going to be a recurring thing.⁸

"THE DEFENDANT: -- Andrew Janz.

"MR. JANZ: The Defendant has no self-control. You'll see it.

"THE COURT: Mr. Duley?

"THE DEFENDANT: You can do whatever you want to say.

"MR. JANZ: Imagine this anger right here --

"THE COURT: Mr. Janz?

"MR. JANZ: -- multiplied by ten on the night in question.

"THE COURT: Mr. Janz, stop.

"MR. NEAL [DEFENSE COUNSEL]: I object. I object.

"THE DEFENDANT: Objection is overruled. You are a liar.

"THE COURT: We are going to take a short recess.

"THE DEFENDANT: Shame on you. You little lying Jackoff.

"THE COURT: Deputy, Will you escort the jurors out, please.

"THE DEFENDANT: How dare you ever accuse me of groping that ugly woman. Why would you?

"THE COURT: Mr. Duley?

"THE DEFENDANT: That is a hideous creature and she attacked me.

"THE COURT: Folks, we are going to take a short recess."

8 At a later hearing on defendant's motion for new trial, the prosecutor disputed the transcript, claiming that he said this is going to be a "recurring theme." (Italics added.) The court did not make a factual finding regarding this statement.

The jurors were then escorted out of the courtroom and defendant engaged in a lengthy outburst, which is detailed further below in the discussion regarding defendant's competency. After defendant agreed not to interrupt further, the jury was brought in and argument resumed.

During the defense closing argument, defense counsel also called attention to defendant's outburst, stating that defendant "had a very emotional reaction." Defense counsel characterized defendant as an "interesting person" with a "unique personality." Defense counsel advised the jury it could only consider witness testimony and exhibits in determining defendant's guilt.

During the prosecutor's rebuttal closing argument, defendant again interrupted on two occasions to call the prosecutor a liar. The prosecutor then referred again to defendant's demeanor:

"And in this case, when Sarah rejected his sexual advances he was humiliated. He was embarrassed. And to top it off, she slapped him. He was even more embarrassed after being slapped. And you can see the type of person the Defendant is. You could hear the anger in his voice when he testified, his inability to control himself then and now here in court. These are all things that you should consider when you go back to deliberate this case. Those are things you can't consider. The defense attorney says you shouldn't decide the case on emotion, true. But don't check your common sense at the door."

Defense counsel did not object to this argument.

Following the jury's verdict, defendant brought a motion for new trial, arguing the prosecutor's statements constituted misconduct. In ruling on the motion, the court characterized the exchange between the prosecutor and defendant as "remarkable," and stated, "I don't recall ever experiencing a defendant to be as disruptive as [defendant] was, certainly not in front of a jury." The court determined the comments were "inappropriate as the commotion of two people speaking at once was disruptive of the court proceedings," but were not misconduct and did not prejudice defendant's right to a fair trial.

2. Analysis

Defendant's challenge to these statements is forfeited. Although defense counsel objected, he did not press the court for a ruling on the objection and did not request a jury admonition. Defendant presents no argument as to why any harm arising from the prosecutor's statements could not have been cured by a jury admonition to disregard the challenged comments. (See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853 (Daveggio) [failure to request admonition will be excused "if an admonition would not have mitigated the harm caused by the misconduct"].) Defendant nonetheless asks us to reach the merits of his claim on the ground counsel's failure to preserve the objection or request an admonition constitutes ineffective assistance of counsel. However, defendant has not demonstrated that counsel's performance was professionally deficient, or that he likely would have achieved a more favorable result if not for counsel's omission. (See People v. Woodruff, supra, 5 Cal.5th at p. 736.)

Even assuming the prosecutor's comments constituted misconduct,⁹ this is not a circumstance where we can imagine no rational or satisfactory explanation for defense counsel's inaction. (People v. Arredondo (2019) 8 Cal.5th 694, 711 (Arredondo) [reversal permitted " 'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation' "]; accord, People v. Ledesma (2006) 39 Cal.4th 641, 746.) The prosecutor's initial comments occurred during a period when the prosecutor and defendant were speaking simultaneously. During the outburst, the jurors were escorted out of the courtroom, where they remained for nearly 30 minutes. Reasonable defense counsel may have determined it prudent not to call attention to the prosecutor's comments by requesting an admonition after the juror's lengthy absence. Furthermore, the prosecutor's rebuttal comments referred only obliquely to defendant's demeanor off the stand, and the prosecutor's reference to defendant's conduct as a witness was plainly permissible. (Edelbacher, supra, 47 Cal.3d at pp. 1030-1031.) Reasonable defense counsel may have determined there was no tactical advantage in objecting to such comments. Defendant therefore has not demonstrated that defense counsel's performance was professionally deficient.

9 "It is misconduct . . . for a prosecutor to comment on a nontestifying defendant's courtroom demeanor or behavior during the guilt phase of the trial" (People v. Blacksher (2011) 52 Cal.4th 769, 840), "unless such comment is simply that the jury should ignore a defendant's demeanor" (People v. Boyette (2002) 29 Cal.4th 381, 434 (Boyette)). However, when a defendant testifies, commentary on the defendant's demeanor as a witness "is clearly proper." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030 (Edelbacher).) Our Supreme Court has held that commentary on a testifying defendant's general courtroom demeanor off the witness stand "may be proper under some circumstances" (ibid.; see id. at pp. 1030-1031 [declining to decide whether commentary on defendant's note-taking during the prosecutor's argument was improper, but concluding it did not impinge on the defendant's right not to testify]; People v. Heishman (1988) 45 Cal.3d 147, 197 [proper to reference the defendant's facial demeanor after the defendant put his character in issue as a mitigating factor], abrogated on another ground by People v. Diaz (2015) 60 Cal.4th 1176, 1190), but improper in others (Boyette, supra, 29 Cal.4th at p. 434 [prosecutor's suggestion that the testifying defendant's courtroom demeanor reflected duplicitousness was improper]).

Furthermore, we find no reasonable possibility the outcome would have been different had defense counsel requested a jury admonition. The prosecutor's comments were brief and occurred primarily during a chaotic point in the proceedings. Any improper comments added little to the proper commentary on defendant's testifying demeanor. (See Boyette, supra, 29 Cal.4th at p. 434 [because the defendant testified in his own defense, any harm arising from the prosecutor's improper comment on the defendant's demeanor was diminished].) Additionally, the effect of the prosecutor's comments was likely minimal in relation to defendant's outburst itself, which the court characterized as the most disruptive it had experienced. Defendant himself bears responsibility for any prejudicial impact his conduct may have had on the jury. (People v. Sully (1991) 53 Cal.3d 1195, 1243.) Finally, the court instructed the jury that it must decide the case based only on the evidence, and defined evidence as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." The only mention of behavior in the court's instructions was in reference to the behavior of a testifying witness and its effect on witness credibility. The instructions given adequately guided the jury on the role demeanor might play in their deliberations.

Lastly, we address defendant's contention that the challenged comments improperly invited the jury to put itself in the victim's position and imagine what the victim experienced. Arguments that ask the jury " 'to view the crime through the eyes of the victim' " or " 'appeal for sympathy for the victim' " (colloquially called "Golden Rule" arguments) are impermissible at the guilt phase of a criminal trial. (People v. Seumanu (2015) 61 Cal.4th 1293, 1344.) However, a challenge on this basis is forfeited for the same reasons stated above. Moreover, even if it were not, we would reject it. The prosecutor did not ask the jurors to put themselves in the victim's shoes or otherwise appeal to the jurors' sympathy for the victim. (See Young, supra, 7 Cal.5th at p. 933 [prosecutor's statement that victims were, " 'I'm certain, very fearful' " did not ask jurors to put themselves in victims' shoes or appeal to jurors' sympathy].) We perceive no "Golden Rule" argument in the prosecutor's comments.

Defendant has not demonstrated ineffective assistance of counsel on this basis.

D. Misstated evidence

Defendant contends the prosecutor misstated the evidence in various ways. "Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutor's 'vigorous' presentation of facts favorable to his or her side 'does not excuse either deliberate or mistaken misstatements of fact.' " (People v. Hill (1998) 17 Cal.4th 800, 823 (Hill); accord, People v. Davis (2005) 36 Cal.4th 510, 550.) We address each alleged misstatement in turn.

1. Pull out a cocktail glass

Defendant contends the prosecutor misstated the evidence by stating defendant "pull[ed] out a cocktail glass," when the evidence instead suggested defendant already had a glass in his hand. In addressing defendant's claim of self-defense, the prosecutor explained defendant was required to use no more force than was reasonably necessary, and stated:

"So for example, if the Defendant thought he was under attack, sort of as a hypothetical, you can't -- if someone is approaching you with a fist and trying to punch you, you can't just pull out a gun and shoot them, likewise you can't pull out a knife and stab them. It has to be a proportional response. If you are getting punched, you can punch back. You can't pull out a cocktail glass and smash it on top of someone's face, that type of provocation."

The prosecutor continued:

"You can't up the ante, someone is punching you, you can't just pull out a glass and smash it on their face. That doesn't make any sense, and that's not self-defense."

Defendant did not object to these statements and his challenge is therefore forfeited, because a jury admonition could easily have cured the harm. (People v. Cunningham (2001) 25 Cal.4th 926, 1000-1001 (Cunningham).) Even if not forfeited, we conclude the argument lacks merit. The prosecutor did not state, in either of the challenged instances, that the evidence showed defendant had pulled a glass out of some unspecified location. Rather, the prosecutor used a variety of hypothetical scenarios to explain to the jury the concept of proportional response. In this context, the prosecutor's repeated reference to pulling out an object - a gun, a knife, a glass - was a rhetorical device, not a comment on the evidence. Furthermore, it was undisputed at trial that defendant had a glass in his hand prior to being hit by Sarah, and prior to hitting her. No reasonable juror could have relied on the prosecutor's argument to conclude that defendant pulled a glass out of some unspecified location to commit the offense.

These comments did not render the trial fundamentally unfair, and there is no reasonable possibility a more favorable result would have been reached absent these comments. (Young, supra, 7 Cal.5th at pp. 932-933.) The comments do not warrant reversal.

2. Overhand motion

Defendant contends the prosecutor misstated the evidence by telling the jury that the bouncers corroborated Donovan's testimony that defendant struck Sarah in an overhand motion. The relevant argument is as follows:

"We heard testimony from multiple witnesses that when he smashed the cocktail glass on her face it was sort of an overhand motion. [Donovan] testified that he was facing away from him, but he saw the arm come over his -- basically his right shoulder and hit her in the face. So the bouncers I believe testified to the same effect. So that's how you know that it was a willful act. It wasn't some sort of, you know, reflex act or something. He had a full-on swing right on top of her face." (Italics added.)

Once again, defendant did not object to this statement and his challenge is therefore forfeited, because a jury admonition easily could have cured any harm. (Cunningham, supra, 25 Cal.4th at pp. 1000-1001.) To the extent defendant contends the failure to object constitutes ineffective assistance of counsel, we note that defense counsel addressed this alleged misstatement in closing argument, noting that the "only one that testified to an overhand motion was Donovan."¹⁰ It is therefore apparent that defense counsel viewed the prosecutor's comment as a misstatement, and made a strategic choice to address it in his own closing argument rather than interjecting an objection and requesting an admonition from the court. Counsel's strategic choice is "virtually unchallengeable." (Strickland, supra, 466 U.S. at p. 690.)

10 However, this statement also was inaccurate, as Sarah, Donovan, and Christian P. all described defendant using an overhand motion. Defense counsel also mischaracterized Jerrell's testimony by stating that Jerrell testified it was "a punching-type motion with the hand going forward," but Jerrell testified that defendant hit Sarah with an "upper motion."

Nor is there a reasonable likelihood defendant would have achieved a more favorable result had counsel objected and the jury been admonished. The prosecutor's statement was ambiguous, as he expressed uncertainty as to whether the bouncers had so testified. However, even if the prosecutor mistakenly implied the bouncers testified to defendant's use of an overhand motion,¹¹ the jury requested and received an extensive readback of testimony during their deliberations, including the testimony of the bouncers, Sarah, Donovan, defendant, and Christian P. Two of those witnesses - Sarah and Christian P. - corroborated Donovan's testimony that defendant struck Sarah in an overhand motion. Furthermore, as stated, defense counsel argued in closing that Donovan's testimony was uncorroborated. We are confident the jury was capable of reviewing the testimony and determining for itself the relative veracity of counsel's conflicting arguments. There is no reasonable probability the prosecutor's remark or the lack of admonition affected the verdict.

11 Jerrell testified that defendant's hand "came up with like an upper motion." Justin did not testify to the motion defendant used when hitting Sarah, only that "the empty glass was pushed into her face with enough force to shatter it."

Defendant has not demonstrated ineffective assistance of counsel on this basis.

3. Bribe

Defendant asserts the prosecutor misstated the evidence by referring to defendant's interaction with Tobias as an attempt to bribe or pay off a witness. The relevant argument is as follows:

"So some of the other things you need to consider as I mentioned, based on the Defendant's testimony he denied hitting Sarah. His attorney doesn't deny it, but he does. And we know that the Defendant attempted to bribe [Tobias]. Now, this is important because under the jury instruction it talks about consciousness of guilt. When you try to pay off a witness to come and testify and lie for you in court, that's evidence that you can use against him as to his guilt, that in combination with all the other evidence in the case.

"Now, you will recall that [Tobias] was a very unsophisticated person. Um, he -- he isn't the sharpest tool in the shed, and I think that you got that from his testimony. We needed to bring in an investigator to basically impeach him with his prior statement. But if you think about it, that is exactly the type of person if you were in the Defendant's shoes that you want to bribe, someone that is unsophisticated, someone that could be

easily swayed and convinced, somebody that's sort of innocent to the ways of the world, someone like [Tobias]. He's the perfect person you want to pay off to come to court and lie for you. And that's why the Defendant picked him."

Once again, this challenge is forfeited. (Daveggio, supra, 4 Cal.5th at p. 853.) Regardless, we fail to see how the challenged comments even approach misconduct. Defendant offered to pay Tobias, who had no personal knowledge of the incident, to testify favorably for defendant regarding what occurred at the sports bar. Tobias felt defendant was asking him to lie and that defendant "deserves what he gets" (boldface omitted). Given Tobias's lack of personal knowledge regarding the event and his reaction to being asked to testify, it would be reasonable to infer that any testimony favorable to defendant would have falsely represented Tobias's knowledge. A prosecutor has wide latitude to make fair comment on the evidence during argument, " ' "which can include reasonable inferences, or deductions to be drawn therefrom." ' " (People v. Thomas (2012) 53 Cal.4th 771, 822.) This argument falls squarely within such latitude.

E. Inviting Jury to Speculate

Defendant complains that the prosecutor improperly invited the jury to speculate. The relevant argument took place during the prosecutor's discussion of the definition of great bodily injury, and proceeded as follows:

"It is an injury that is greater than minor or moderate harm. And I would pose to you that the injuries that Sarah suffered were not minor or moderate. They were serious.

"The location of the injuries are going to be important. They were right in her eyes basically. Um, you can imagine in a different circumstance that where the glass were facing a different way or the glass was smashed in a different angle, the shards of glass could have penetrated in her eyes and even potentially into her skull and even her brain.

"MR. NEAL: Objection, Your Honor. It's inflammatory.

"THE COURT: Overruled. Speculative. I'll sustain on that ground.

"MR. NEAL: Okay."

Once again, defendant did not request a jury admonition, even though his objection was sustained (albeit on different grounds than originally requested). His challenge is therefore forfeited. (Cunningham, supra, 25 Cal.4th at pp. 1000-1001.) Regardless, even if this argument lacked evidentiary support, it is not likely it affected the jury's verdict. The jury found that defendant personally inflicted great bodily injury on Sarah in the course of the assault and battery. Whether additional great bodily injury was possible or even likely was not an issue the jury was required to determine. Therefore, we see no possibility the verdict would have been more favorable had the jury been admonished to disregard this argument. This argument therefore does not present a basis for reversal. (See Young, supra, 7 Cal.5th at pp. 932-933.)

F. Misstated the law

Defendant argues that the prosecutor prejudicially misstated the law. The relevant argument is as follows:

"So the whole point of this is that your job as jurors is to go back and talk amongst yourselves and figure out what happened in this case. It's your job to determine what the facts are. You can't just go in the back and say, well, this one side -- one side said this, the other side said that, and just throw up your hands and say, well, we can't decide. You can't do that. You have to look at all the facts. You have to look at all the evidence. And you as a group has to talk amongst yourselves and come to a decision about what the facts are. That's your job.

"MR. NEAL: I object to that, Your Honor. That actually misstates the law.

"THE COURT: Sustained.

"MR. NEAL: I'd ask Your Honor to instruct on that.

"THE COURT: I already have instructed.

"MR. NEAL: Thank you, Judge.

"THE COURT: Follow my instructions, Ladies and Gentlemen."

To the extent the People's argument can be construed to have misstated the law by implying that the jury was required to deliberate until it reached a verdict, the court admonished the jury to follow the court's instructions. Those instructions properly informed the jury:

"It is your duty to talk to one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after you discuss the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you are wrong. Do not change your mind just because other jurors disagree with you. Keep an open mind and openly exchange your thoughts and ideas about this case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion." (Italics added.)

Defendant presents no argument as to why the court's admonition to follow the court's instructions was insufficient to cure any harm arising from the prosecutor's argument. Thus, he has not demonstrated that any prejudicial misconduct occurred. His failure to object below to the admonition given forfeits any claim that it was insufficient. (People v. Fuiava (2012) 53 Cal.4th 622, 728 ["To the extent [the] defendant contends on appeal that the trial court's admonition was insufficient, he forfeited such a claim by failing to request a different admonition."].)

G. Court's Duty to Intervene

Defendant argues that the court had a duty to intervene to attempt to restrain and cure the prosecutor's repeated improper arguments. For support, he relies on People v. Vance (2010) 188 Cal.App.4th 1182 (Vance). In Vance, the prosecutor made repeated appeals to the passions and emotions of the jury, even after the defendant's numerous objections were sustained. (Id. at pp. 1194-1196.) Furthermore, after defense counsel's second objection, the prosecutor made a derisive comment casting aspersions on defense counsel for having objected. (Id. at p. 1200.) The prosecutor additionally commented improperly on the defendant's courtroom demeanor. (Id. at p. 1201.) The appellate court determined the prosecutor's comments constituted misconduct, and also criticized the trial court for its "passive reaction" to the comments, noting that, once the prosecutor continued the improper argument after the second defense objection had been sustained, "a more active response would have been in order." (Ibid.; see Hill, supra, 17 Cal.4th at p. 821 [finding claims of prosecutorial misconduct were not forfeited by defense counsel's failure to continually object to multiple instances of misconduct, in part because trial court failed to "rein in" the prosecutor].)

Vance is distinguishable from the instant case. The prosecutor here did not repeat arguments for which defense objections had been sustained. To the contrary, he ceased such arguments. It was not the court's duty to impose interjections where defense counsel chose not to, particularly since defendant has not argued or shown that any such objections would have been futile. (People v. Bell (1989) 49 Cal.3d 502, 542 (Bell) ["While it is the duty of the judge to 'control all proceedings during the trial, and to limit . . . the argument of counsel to relevant and material matters' (§ 1044), we do not expect the judge to correct each instance of misconduct on his own motion."].)

H. Cumulative Prejudice

Defendant also contends that the alleged prosecutorial misconduct detailed above had a cumulative prejudicial effect. He argues that the misconduct "tipped a very delicate balance" because the case was close, the instances of misconduct were numerous, and the court's inaction compounded the impropriety. He contends the conduct cumulatively violated his due process right to a fair trial.

"In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Here, we have determined defendant's claims are forfeited, and he has not demonstrated ineffective assistance of counsel. There is no cumulative error to weigh.

However, even taking the cumulative effect of defendant's claims of misconduct into account, we remain satisfied defendant received a fair trial. (See Cunningham, supra, 25 Cal.4th at p. 1009 [a criminal defendant is entitled to "a fair trial, but not a perfect one"].) The cited instances of misconduct were relatively isolated, and the import of each instance on the trial was minimal to nonexistent, for reasons we have already stated. Furthermore, the evidence of defendant's guilt was strong. The jury heard undisputed evidence that defendant engaged in a verbal, if not physical altercation with Sarah, which culminated in him smashing a glass in her face. Defendant relied on the defense of self-defense, which his own attorney acknowledged was not "the strongest of [his] defenses," and the defense of unconsciousness, which required the jury to believe his uncorroborated testimony that Sarah hit him in the face with a beer bottle, rendering him unconscious. On these facts, the prosecutor's arguable acts of misconduct did not render the trial fundamentally unfair.

We reject defendant's argument that the length of the jury deliberations reflects this was a close case, and that the prosecutor's arguments thus improperly tipped the balance in the People's favor. Although the jury deliberated over a period of three days, much of this time was dedicated to readback of the testimony of the percipient witnesses. Outside of the readback, deliberative time comprised just over six and a half hours of the jury's deliberations and was conducted in relatively brief intervals. During that time, the jury also made two requests for clarification, neither of which relate to the alleged points of misconduct. Ultimately, the jury was asked to decide two substantive counts, each with an enhancement, while considering evidence from a number of trial witnesses. The time taken to deliberate, and the specificity of the jury's questions, are at least as likely to demonstrate the jury's careful consideration of the evidence and the seriousness with which the jurors set about reaching their verdicts. "Rather than proving the case was close, the length of the deliberations suggests the jury conscientiously performed its duty." (People v. Carpenter (1997) 15 Cal.4th 312, 422 [regarding deliberations of less than 24 hours over seven days], abrogated on an unrelated ground by People v. Diaz (2015) 60 Cal.4th 1176, 1187-1188; accord, People v. Walker (1995) 31 Cal.App.4th 432, 439.)

We also reject defendant's attempt to analogize the instant case to other cases involving pervasive, egregious, and repeated misconduct by the prosecutor that permeated the proceedings and cumulatively deprived the defendant of a fair trial. (Hill, supra, 17 Cal.4th at pp. 823-836, 847 [finding cumulative prejudice where the prosecutor misstated the evidence and the law in multiple, critical ways; referred to facts not in evidence; engaged in petty, childish, and acrimonious conduct toward defense counsel throughout the trial; and threatened a witness with perjury charges if he testified for the defense, while the trial court committed other serious errors]; Vance, supra, 188 Cal.App.4th at pp. 1194-1196, 1200 [finding prejudice where the prosecutor made numerous appeals to the passions and emotions of the jury, continued such argument even after the defendant's numerous objections were sustained, and made a derisive comment casting aspersions on defense counsel for having objected].) The misconduct alleged in this case was not as pervasive, egregious, or constant as that found in other cases where cumulative prejudice was found.

We therefore do not find cumulative prejudice from the prosecutor's argument violated defendant's right to a fair trial.

III. Failure to Hold a Competency Hearing

Defendant challenges the court's failure to hold a competency hearing following defendant's outburst during the prosecutor's closing argument.

A. Additional Factual Background

As explained above, defendant began speaking during the prosecutor's closing argument, and the courtroom was cleared. Once the jury was removed from the courtroom, the following occurred:

"THE DEFENDANT: Shame on you. And don't you ever do it again. You are ridiculous. Don't do it again. I have a beautiful woman right here by my side. What's wrong with you?

"MR. NEAL: I'm going to advise you not to speak.

"THE DEFENDANT: I won't. But shame on him. That's a disgrace, a disgrace. It is a disgrace. And you know it, Your Honor. And I'm sorry. But I apologize, but he shouldn't say things like that as though they are facts. That's the same thing the newspaper did. Everybody's been doing it, and it's not a fact. It's a lie. It's a lie. A down right ugly lie. Now --

"MR. NEAL: Your Honor, the record will reflect that I've advised my client many times not to speak.

"THE COURT: Yes, it will reflect that.

"THE DEFENDANT: It will be fine anyway.

"THE COURT: The record will also reflect that the jurors have been excused from the courtroom. [¶] Mr. Duley?

"THE DEFENDANT: Absolutely.

"THE COURT: Listen to me, please.

"THE DEFENDANT: Yes, Judge Kams.

"THE COURT: Before I brought the jury --

"THE DEFENDANT: I believe you to be a fair man. And I believe you to be an honest man.

"THE COURT: Then show me some respect and listen to what I have to say.

"THE DEFENDANT: I think you are very respectful.

"THE COURT: Listen to what I have to say. Before we brought the jurors in, I instructed everyone in the courtroom to use -- to be on their best behavior, use proper decorum because this is a contentious case. I instructed --

"THE DEFENDANT: What does that mean contentious, please?

"THE COURT: It's a great issue. The facts are contentious. They are in great contention. And the emotions are high.

"THE DEFENDANT: Okay.

"THE COURT: And I ask that you, as well as the People's witnesses remain -- refrain from saying anything or doing anything while the attorneys were arguing their case. Mr. Janz was a couple of minutes into his argument and you started --

"THE DEFENDANT: His argument is false.

"THE COURT: You are not letting me speak.

"THE DEFENDANT: Sorry.

"THE COURT: So let me finish.

"THE DEFENDANT: It's a shame.

"THE COURT: Will you let me finish, please.

"THE DEFENDANT: Absolutely.

"THE COURT: Within a few minutes of Mr. Janz beginning his argument, you did just what I asked you not to do. You started speaking out loud berating him when I asked you directly to refrain from doing so.

"THE DEFENDANT: I've been beaten down by the newspapers and the news channels and everybody's been saying I did it.

"THE COURT: Mr. Duley?

"THE DEFENDANT: And I didn't. And I don't like it.

"THE COURT: I appreciate that you don't like the media's --

"THE DEFENDANT: I don't like anybody saying I did something I didn't do. It's hideous, and it's a crime against -- it's slander is what it is. It's slander.

"THE COURT: I understand you --

"THE DEFENDANT: Well, I think you should because you understand slander and you've seen it in your courtroom all day long, every day since we started this trial if you want to call it that.

"[THE BAILIFF]: Talk to him respectfully.

"THE DEFENDANT: I am. And you don't need to interrupt me.

"[THE BAILIFF]: Excuse me?

"THE DEFENDANT: I am talking to the Judge.

"MR. NEAL: I'd ask the Court consider a 1368 motion.

"THE COURT: No."

Thereafter, defendant continued his outburst, despite entreaties from the bailiff and the court to calm down. The bailiff also suggested defendant smelled of alcohol. The court then conducted additional proceedings off the record. On the record, the court noted that defense counsel had suggested defendant be excused during the closing argument. However, defendant refused that suggestion, and the court set "ground rules" for defendant's continued presence. Defendant agreed to the resumption of argument without further disruption. Defendant did not interrupt again during the prosecutor's argument, or the defense argument, but did interrupt briefly on two occasions during the prosecutor's rebuttal argument to call the prosecutor a liar.

B. Applicable Law

The law applicable to defendant's request for a competency hearing is set forth succinctly in People v. Mai (2013) 57 Cal.4th 986 (Mai):

" ' "Both the due process clause of the Fourteenth Amendment . . . and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—[or lacks] . . . a rational as well as a factual understanding of the proceedings against him." ' [Citations.]

"Under both the federal Constitution and state law, the trial court must suspend criminal proceedings and conduct a competency hearing if presented with substantial evidence that the defendant is incompetent. [Citations.] Substantial evidence of incompetence exists when a qualified mental health expert who has examined the defendant states under oath, and

' " 'with particularity,' " ' a professional opinion that because of mental illness, the defendant is incapable of understanding the purpose or nature of the criminal proceedings against him, or of cooperating with counsel. [Citations.]

"The defendant's demeanor and irrational behavior may also, in proper circumstances, constitute substantial evidence of incompetence. [Citation.] However, disruptive conduct and courtroom outbursts by the defendant do not necessarily demonstrate a present inability to understand the proceedings or assist in the defense. [Citations.]

"Counsel's assertion of a belief in a client's incompetence is entitled to some weight. But unless the court itself has declared a doubt as to the defendant's competence, and has asked for counsel's opinion on the subject, counsel's assertion that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing. [Citations.]

"By the same token, and absent a showing of 'incompetence' that is 'substantial' as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial. [Citation.] ' "An appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper." ' " (Mai, supra, 57 Cal.4th at pp. 1032-1033.)

Thus, only when defense counsel presents expert opinion from a qualified mental health expert "stating under oath and with particularity that the defendant is incompetent," or makes "some other substantial showing of incompetence that supplements and supports counsel's own opinion," "does the trial court have a nondiscretionary obligation to suspend proceedings and hold a competency trial." (People v. Sattiewhite (2014) 59 Cal.4th 446, 465.) "Otherwise, we give great deference to the trial court's decision not to hold a competency trial." (Ibid.)

C. Analysis

Defendant asserts that the trial court should have declared a doubt about his competence to stand trial based on his disruptive behavior during closing argument and counsel's unsupported request under section 1368. According to defendant, his conduct during closing argument reflects that he was irrational and unable to assist counsel with his defense.

While counsel's assertion of a belief in defendant's incompetence is entitled to "some weight" (Mai, supra, 57 Cal.4th at p. 1033), counsel here merely asked the court to "consider a 1368 motion." The trial court expressly declined to suspend proceedings under section 1368 and hold a competency hearing. Absent substantial evidence of incompetence, we must defer to the trial court's determination in this regard. (People v. Sattiewhite, supra, 59 Cal.4th at p. 465.)

However, the record does not disclose substantial evidence of defendant's incapacity. Although defendant engaged in a lengthy outburst during the prosecutor's closing argument, "disruptive conduct and courtroom outbursts by the defendant do not necessarily demonstrate a present inability to understand the proceedings or assist in the defense." (Mai, supra, 57 Cal.4th at p. 1033.) To the contrary, "disruptive behavior is not substantial evidence of incompetence unless, by its particular nature, it casts doubt on the defendant's ability to assist in his or her defense." (Id. at p. 1034; see People v. Ramos (2004) 34 Cal.4th 494, 508 ["a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel"].) Expressions of anger and resentment that are "connected in an understandable way to the trial proceedings" do not constitute substantial evidence of incompetence. (Mai, at p. 1035.)

Here, nothing about defendant's outburst suggests he did not understand the proceedings or was unable to assist in his defense. To the contrary, his angry outburst reflects he had a detailed understanding of the proceedings and the prosecutor's argument, and disagreed vehemently with the People's theory of the case. His anger, directed as it was toward the prosecutor and media for repeating what defendant characterized as lies, was understandably connected to the proceedings and was not irrational. (See Mai, supra, 57 Cal.4th at p. 1035.) Furthermore, defendant's insistence on being present for the remaining closing argument reflects he well understood the nature and import of the proceedings. We also note defendant's outburst came just days after defendant's testimony, which was articulate and reflected a rational and factual understanding of the nature of the charges against him and an ability to assist in his own defense. There was no substantial evidence requiring the court to suspend proceedings and conduct a competency hearing.

Defendant argues that his conduct during the sentencing phase also supports his claim of incompetence, as it reflects that he "tended to act out irrationally in stressful portions of his case." To the extent defendant argues his conduct at sentencing reflects the trial court should have granted defense counsel's request for a competency hearing earlier in the case, we disagree. As we have explained, at the time the request was denied, there was no substantial evidence suggesting defendant was incompetent. We address defendant's challenges to the sentencing phase below.

In sum, because there is no substantial evidence of defendant's incompetence, we defer to the trial court, which observed defendant's behavior and did not form a doubt about defendant's competence. (Mai, supra, 57 Cal.4th at p. 1033.)

IV. Ineffective Assistance in Calling Defense Expert Witness

Defendant contends counsel was ineffective for calling Newman, "an unprepared, self-declared street fighter with a prior criminal record" (boldface & capitalization omitted) to testify as an expert witness on involuntary responses in support of his defense that he lacked intent to commit the crimes. We conclude defendant has not established his counsel was ineffective in this regard.

A. Additional Factual Background

Prior to trial, the court held a hearing regarding Newman's proposed testimony as an expert witness. There, Newman opined that, "when an individual is struck you immediately would take a defensive posture, whether it's putting your hands up to block in a certain manner or reaching out to fend the attacker off." He described such a response as "[r]eactionary." When the court stated this testimony "didn't answer the question for me," defense counsel continued his questioning.

"Q In other words, reactionary could be something that you react to cognitively or it could be something that the brain does without thinking. What do you mean by reactionary?

"A Well, when you are struck -- when you are struck and you are kind of not ready to be hit you automatically take a defensive posture.

"Q When you say automatically --

"A When you are putting your hand out, you are putting your hands up, you are pushing the person back as well, and that's exactly what's going to happen.

"Q Okay. And would that be something that would be -- that you would think of ahead of time, or would be something that would be automatic and not something that you would -- or would it be something that would be automatic and you would not think about it ahead of time?

"A It would be automatic.

"Q Okay. In other words, would it be something that would be a voluntary action or an involuntary action.

"A I would say be an involuntary action, correct.

"THE COURT: How could it be an involuntary action. If you raise your hands up, isn't that a voluntary action?

"THE WITNESS: Well, it's -- you are protecting yourself, whether you are pushing out -- you are pushing out. You are protecting yourself.

"THE COURT: Right. I understand that, but how is that involuntary. Sounds to me --

"THE WITNESS: Well, I'm sorry. Maybe I have it wrong. Maybe I have it wrong. Maybe -- it is voluntary.

"THE COURT: Well, you tell us what your opinion is. I don't want to be steering you. I guess maybe I was, but --

"Q BY MR. NEAL: Yes. Let me ask you the question a little more specifically. Let's say for example that somebody that's my size, strong, heavy person, hits me from out of nowhere, am I going to -- and hits me hard right in the face, right in the jaw.

"A Yes, sir.

"Q Okay. All right. Am I going to react with something that I think about, or am I going to react without thinking?

"A You are going to react without thinking.

"Q In other words, are you saying that the brain is going to protect itself without having you think about it?

"A Yes, sir." (Boldface omitted.)

As noted above, Newman testified at trial that defensive action in response to being hit would be a "natural reaction," "especially if your bell is rung" "[b]ecause you are technically out for a millisecond." When asked whether a person who puts their hands up after being struck would be acting voluntarily or involuntarily, he stated, "Uh, I believe it would be a voluntary, yes." On redirect, he characterized this response as "[a]utomatic."

Following the jury's verdict of guilt, defendant filed a motion for new trial, arguing defense counsel was ineffective in knowingly eliciting harmful testimony from Newman. At the hearing on the motion, the court noted that Newman's background in martial arts provided a foundation for him to provide expert testimony and that he testified favorably for defendant. The court did not find Newman's criminal background to be disqualifying, as it bolstered his claimed experience with physical altercations. The court concluded by stating it did not find ineffective assistance of counsel, both because there was not a reasonable probability the result would have been different and because there was no merit to the claim counsel's performance was deficient.

B. Applicable Law

The legal standard applicable to claims of ineffective assistance of counsel is set forth above. We additionally note that, where the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725; accord, People v. Rodriguez (2019) 38 Cal.App.5th 971, 977; see People v. Hamilton (2009) 45 Cal.4th 863, 923 ["The determination of whether a defendant received ineffective assistance of counsel is a legal one made by a reviewing court, not a factual one entrusted to a finder of fact."].)

Significantly, "[t]he selection of an expert witness is a paradigmatic example of the type of 'strategic choic[e]' that, when made 'after thorough investigation of [the] law and facts,' is 'virtually unchallengeable.' " (Hinton v. Alabama (2014) 571 U.S. 263, 275.) Thus, the United States Supreme Court has declined to find ineffective assistance based on claims that a defense expert, "though qualified, was not qualified enough," and has declined to examine "the relative qualifications of experts hired and experts that might have been hired." (Ibid.)

C. Analysis

Defendant contends Newman's testimony interfered with his ability to assert the defense of unconsciousness because Newman did not provide support for the theory that defendant acted unconsciously and, instead, testified defensive actions like those defendant claimed to have taken are voluntary. He also contends Newman's criminal history and status as a street fighter reflected poorly on defendant, and the jury might have concluded "the bad guy calls another bad boy . . . to try to get him off." Notably, defendant does not contend Newman was not qualified to serve as an expert, only that he was a poor choice. We cannot find ineffective assistance on this basis. This is precisely the type of circumstance the high court labeled a " 'strategic choic[e]' " that is " 'virtually unchallengeable.' " (Hinton v. Alabama, supra, 571 U.S. at p. 275.)

Furthermore, we disagree with defendant's claim that Newman's testimony doomed his defense. Unconsciousness is a complete defense to a charged crime, including the two charged here. (People v. Rogers (2006) 39 Cal.4th 826, 887.) The jury here was instructed that it was the People's burden to prove, beyond a reasonable doubt that defendant was conscious. Defendant testified that he had no recollection of anything that occurred between his being hit by Sarah and landing on the ground. Newman testified that someone who is hit unexpectedly may be "technically out for a millisecond." Although Newman testified that defensive actions would be voluntary, he also testified they would be automatic, natural, and possibly unknowing. Defense counsel relied on Newman's testimony in closing argument to argue defendant's actions were reflexive, unthinking, and unknowing. Both the prosecution and defense argued in closing that the question of whether defendant's actions were voluntary or involuntary bore on the question of defendant's intent. We therefore cannot say that defense counsel's choice of Newman as an expert was devoid of any strategic purpose. (See Arredondo, supra, 8 Cal.5th at p. 711.) Nor is there any basis in the record to conclude a different expert would have testified more favorably for defendant. (See People v. Jones (2003) 30 Cal.4th 1084, 1123 [declining to find ineffective assistance where record "sheds no light on whether counsel's action was a reasonable tactical choice" due to the absence of information on what other expert witnesses might have been available].)

Based on the foregoing, defendant has not demonstrated counsel was ineffective in calling Newman as a witness.

V. Ineffective Assistance of Counsel in Failing to Move for Change of Venue

Defendant claims his trial counsel was ineffective for failing to move for a change of venue. According to defendant, his counsel should have anticipated the case would be heavily publicized and that he could not receive a fair trial within the county. We conclude defendant has not demonstrated ineffective assistance of counsel.

A. Additional Factual Background

As stated, defense counsel did not move for a change of venue. On appeal, defendant contends the following facts supported such a motion.

1. Media Coverage

Defendant claims, without citation to the record, that "media covered the entire trial in March of 2017 and continued all the way to sentencing in December 2017." He cites one discussion of media coverage in the record as cause for concern.

During the People's case in chief, the court began a morning session outside the presence of the jury by noting counsel had informed the court there was a story regarding the case in both the print and online versions of the local newspaper. The court explained that the story contained "a recitation of the trial up to this point" and also contained information that had not been presented to the jury, including that defendant has suffered prior felony convictions and was out on bail. Defense counsel requested a mistrial, arguing that jurors likely ignored the court's admonitions to avoid such coverage and speculating that the story also may have been discussed on a local radio station. The court questioned the jurors as a group regarding the coverage, then individually questioned the sole juror who responded with a "qualified yes" to having seen the story. The juror explained a coworker mentioned the online story to him the day before and asked whether the juror knew anything about it. The juror looked at the screen, saw a picture of defendant, and said, "I can't say anything." The juror did not read the story and the coworker did not press the issue further. The court denied the motion for mistrial without prejudice to counsel raising the issue again after doing further research. However, the issue was not revisited.

2. Social Media

Defendant contends his counsel should have anticipated heavy media coverage because he knew Sarah was very active on social media. In support of this claim, he relies on the following.

At the preliminary hearing, Sarah acknowledged she had a Twitter account and had made and deleted a Facebook post regarding the incident. Defense counsel asked Sarah additional questions regarding her Twitter and Facebook activity, but the prosecutor's objections to these questions were sustained.

After trial and before sentencing, defendant, acting in propia persona, submitted various documents to the court in what was apparently intended as discovery. One such document was a July 2013 report written by a defense investigator. The report documented an interview of an individual who claimed to know both Sarah and defendant on social media, but who had not been at the sports bar on the night of the incident. This person reported she had prior experience with Sarah sending a " 'lynch mob' " of Facebook friends to "get" someone else, and described Sarah using her "large masses of Facebook followers" to get back at people. This person reported that Sarah made "many" Facebook posts regarding the incident to get her followers "stirred up," before eventually taking the posts down.

3. Online Petition

As evidence of his and Sarah's renown in the community, defendant points to an online petition, which was addressed to the court and appended to the probation report, along with a letter from Sarah, and letters from other parties in support of Sarah and defendant, respectively. The introduction to the petition states, "Justice for Sarah! Speak up against Violence towards Women," but the text of the petition was omitted. The petition contains 561 signatories, of which 276 self-identified as Fresno County residents. The petition also contains 145 comments, and 86 of the comments originated from Fresno County residents.¹² All the comments and signatures are dated after the verdict in this case.

12 For purposes of this appeal, we accept defendant's representation regarding the number of signatories and commenters, which the People do not dispute.

4. Raffle Winnings

Defendant also claims he suffered public antipathy because, at an unspecified time, he was "publicly announced in Fresno media as the big winner of a brand new fancy home in the St. Jude Hospital's charity raffle." The only references he points to in the record regarding his putative raffle winnings are two comments to the online petition, one expressing frustration that such a person had been the winner of a raffle, and another suggesting he be required to sell the home to pay Sarah for her suffering. Only one of these commenters identified herself as living in Fresno County; the other lived out of state.

B. Applicable Law

" 'A trial court must order a change of venue for trial of a criminal case to another county on motion of the defendant "when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be held in the county." (§ 1033, subd. (a).)' " (People v. Farley (2009) 46 Cal.4th 1053, 1082.) " 'Both the trial court's initial venue determination and our independent evaluation are based on a consideration of five factors: "(1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim." ' " (Ibid., quoting People v. Leonard (2007) 40 Cal.4th 1370, 1394.) The court considers the totality of the circumstances, and no one factor is dispositive. (People v. Mackey (2015) 233 Cal.App.4th 32, 75-76 (Mackey).) " 'On appeal, a defendant challenging a trial court's denial of a motion for change of venue must show both error and prejudice: that is, that at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had.' " (Farley, at p. 1083.) We independently review the determination of the reasonable likelihood of an unfair trial. (Id. at p. 1082.)

C. Analysis

We find no reasonable likelihood defendant was denied a fair trial because the jurors were not influenced by the media or social media defendant complains of. Defendant does not suggest there was any media coverage of this case, let alone extensive media coverage, prior to trial. During voir dire, all the potential jurors denied having any familiarity with the case or with defendant. One potential juror initially indicated he might know Sarah, but ultimately determined he did not. In any event, that individual was not seated on the jury. Another individual who was seated on the jury had met Sarah before, but stated she had not seen Sarah in 10 years and did not feel the nature of their relationship would cause her to be unfair. "[A]ny inference that an impartial jury could not be impaneled was refuted by the actualities of voir dire." (Edelbacher, supra, 47 Cal.3d at p. 1003.)

Additionally, at the start of trial, the jurors were admonished not to read, listen to, or watch news reports or obtain any information from any source about the case, or to discuss the case on social media. The jurors also were advised to immediately tell the bailiff if they received "any information about the case from any outside source." When media coverage during trial came to the court's attention, only one juror responded that he had seen, but not read, the story. The court then again admonished the jurors not to read any news accounts or listen to any radio accounts. Prior to deliberations, the jurors were again instructed not to use the Internet or social media "in any way in connection with this case," and not to investigate the facts or law on their own. We presume the jurors followed the court's instructions (People v. Peoples (2016) 62 Cal.4th 718, 799), and no evidence suggests otherwise. To the contrary, even if the media coverage during trial was extensive, as defendant claims, the record reflects the jurors were not aware of it.

These same factors demonstrate that the totality of circumstances would have weighed against a change of venue, had defendant brought such a motion. First, "[t]he 'nature' of the crimes charged is determined based on the ' "peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community," ' while the 'gravity' takes account of the seriousness of the crime ' "in the law" ' and the ' "possible consequences to an accused in the event of a guilty verdict." ' " (Mackey, supra, 233 Cal.App.4th at p. 76.) Here, the charges of assault and battery arose from a bar fight without any " 'sensational overtones.' " (People v. Fauber (1992) 2 Cal.4th 792, 818.) Courts have declined to order a change of venue in much more grave and sensational circumstances. (Ibid. [upholding denial of change of venue in a capital murder case]; see Mackey, at p. 76 [upholding denial of change of venue where multiple murders, including murder of a journalist, were "not particularly vulgar, gruesome, or brutal in nature"].)

As we have explained, the second factor, the nature and extent of the media coverage also weighs against a change of venue because the record suggests jurors were unaware of pretrial media coverage, if any, and the jurors heeded the court's admonitions to ignore media coverage during trial. In any event, media coverage must be balanced against other factors, including the third factor: the size of the community. (People v. Ramirez (2006) 39 Cal.4th 398, 433 [upholding denial of change of venue despite media " 'saturation' "].) Courts have repeatedly held that the size of Fresno County does not weigh in favor of a change of venue. (People v. Jennings (1991) 53 Cal.3d 334, 363 [noting that, in 1986, Fresno County was California's 12th most populous county and, with a population of 580,200, was " 'considerably more populous and . . . less provincial' " than other counties from which our Supreme Court concluded a change of venue was necessary]; Edelbacher, supra, 47 Cal.3d at pp. 1001-1002 [holding that size of Fresno County, with an estimated total population of 551,200 in 1983, did not weigh in favor of change of venue].)

The fourth and fifth factors regarding defendant's and victim's respective status within the community likewise did not compel a change of venue. Defendant had no "particular status in the community before the charged crimes, either good or bad." (Mackey, supra, 233 Cal.App.4th at p. 82.) None of the jurors expressed familiarity with his having won a raffle. The same is true for Sarah. Whatever social media activity she may have engaged in, it was not so extensive that the jury pool was aware of it. Likewise, none of the jurors could have been influenced by the online petition, which apparently was generated after the verdict was rendered. Even if the petition reflected widespread community concern regarding the case, a proposition we do not accept given that it was signed by fewer than 300 people within the jurisdiction, it did not deprive defendant of a fair trial. To the extent defendant contends the petition itself somehow prejudiced his fair treatment at sentencing, it is likely that the petition would have been submitted to any court defendant appeared before on these charges, and thus the effect of the petition itself "would have traveled with the case if venue had been changed." (Ibid.)

Based on the foregoing, we cannot fault defense counsel for failing to bring a motion for change of venue because there were no factors that would support granting such a motion. Moreover, defendant was not denied a fair trial by counsel's inaction.

VI. Additional Claims of Ineffective Assistance of Counsel

Defendant contends the following acts and omissions of defense counsel constituted ineffective assistance and prejudiced his right to a fair trial, both individually and cumulatively.

A. Eliciting Testimony that Defendant Harassed Another Woman

Defendant brought a motion in limine seeking to exclude evidence of prior bad acts by defendant. The prosecutor informed the court that one of the bouncers had made a statement indicating defendant harassed women at the bar in the past. The prosecutor stated he did not intend to introduce this evidence in his case in chief, but may wish to bring it up in rebuttal if defendant contended he had never harassed women before. The court stated, "And in the event you think that has occurred, then give me a heads up and we'll discuss that." The prosecutor agreed.

At trial, on cross-examination by defense counsel, Sarah acknowledged that Donovan told her prior to the incident that defendant was badgering another girl at the bar, who Sarah assumed was Eva. Outside the presence of the jury, the prosecutor referenced the ruling on the motion in limine and asked whether he could inquire further about the statements Donovan made to Sarah. The court determined the prosecutor could make such inquiry of Donovan, but not Sarah. The following discussion then occurred:

"MR. NEAL: Yeah. As far as I'm concerned, though, the evidence regarding that night -- when we talked about prior bad acts, we were talking about prior bad acts from before that night.

"THE COURT: You're right.

"MR. NEAL: Right. But as far as that night's concerned, the only evidence that I'm aware of is that there was a complaint that he was harassing another woman and that she had heard it. I brought it in in order to establish that she had a reason to go at him rather than him go at her. That's the only relevance to that. I don't believe I opened the door to anything."

The prosecutor then stated, "Okay. Um, that's fine, Your Honor. I just wanted to put that on the record. And if it's the defense's position that was a tactical decision to ask her that question, then I'm totally okay with that representation."

Defense counsel then revisited this issue when cross-examining Donovan. Donovan testified that the woman he went to the bar with, whose name he could not remember, complained about defendant. However, Donovan did not recall communicating that complaint to Sarah. On redirect, Donovan testified that the woman complained defendant was "a little too pushy," but Donovan could not otherwise recall the nature of her complaint.

Defendant also testified at length regarding his conversation with Eva on the night of the incident.

Defendant now claims that no competent defense counsel would have introduced testimony that defendant was harassing another woman at the bar on the night of the incident. However, defense counsel explained his tactical reasoning for this decision on the record, specifically stating that the testimony showed Sarah had a reason to attack defendant and defendant therefore had a reason to act in self-defense. Because counsel articulated a rational tactical purpose for the decision, we cannot find he provided ineffective assistance. (Arredondo, supra, 8 Cal.5th at p. 711.) Defendant's contention that this testimony cast him as a harasser and cast Sarah as a hero, therefore undermining the defense theory that Sarah was the initial harasser and aggressor, amounts merely to a claim that counsel's choices were poor. Tactical disagreements and arguments that the defense could have been handled more effectively are insufficient for us to find ineffective assistance of counsel. (People v. Bolin (1998) 18 Cal.4th 297, 333 (Bolin); People v. Colligan (1979) 91 Cal.App.3d 846, 851.)

B. Recusal of the District Attorney's Office

Defendant contends counsel was ineffective in failing to bring a procedurally proper motion to recuse the Fresno County District Attorney's Office.

A district attorney may be disqualified if "evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (§ 1424, subd. (a)(1).) A conflict of interest exists if "the circumstances of a case evidence a reasonable possibility that the [district attorney]'s office may not exercise its discretionary function in an evenhanded manner." (People v. Conner (1983) 34 Cal.3d 141, 148.) To merit disqualification, the conflict must be " ' "so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings." ' " (People v. Vasquez (2006) 39 Cal.4th 47, 56 (Vasquez).)

When a defendant seeks recusal of an entire prosecutorial office, "the showing of a conflict of interest must be especially persuasive." (People v. Hernandez (1991) 235 Cal.App.3d 674, 678.) "[T]he record must demonstrate 'that the conduct of any deputy district attorney assigned to the case, or of the office as a whole, would likely be influenced by the personal interest of the district attorney or an employee.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 373 (Bryant).) " '[T]he entire prosecutorial office of the district attorney should not be recused in the absence of some substantial reason related to the proper administration of criminal justice.' " (People v. Cannedy (2009) 176 Cal.App.4th 1474, 1482.) "Recusal of an entire prosecutorial office is a 'disfavored,' 'drastic' remedy and 'there must be "no other alternative available." ' " (People v. Dekraai (2016) 5 Cal.App.5th 1110, 1139.)

Thus, in general, "the fact one or two employees of a large district attorney's office have a personal interest in a case would not warrant disqualifying the entire office." (Vasquez, supra, 39 Cal.4th at p. 57, fn. omitted; compare People v. Gamache (2010) 48 Cal.4th 347, 363, 365 [upholding denial of motion to recuse district attorney's office with 122 prosecuting attorneys working in three different offices, where an ethical wall was imposed between employee crime victim and office that would prosecute the crime] with People v. Conner, supra, 34 Cal.3d at pp. 148-149 [recusal of entire office proper where deputy district attorney described his "harrowing" experience as a witness and potential victim with numerous coworkers] and People v. Choi (2000) 80 Cal.App.4th 476, 480-483 [recusal of entire office proper where district attorney with close personal connection to murder victim continued to involve himself in the proceedings despite " 'ethical wall' " established within his office].) "A large office can more easily erect ethical walls and insulate the conflict of interest than a smaller office or unit of a larger office" (Melcher v. Superior Court (2017) 10 Cal.App.5th 160, 169), and the size of the office is therefore a relevant factor to consider.

Here, as noted above, defendant was arrested in a separate case on a charge of solicitation to commit murder while the instant case was pending. In the solicitation case, law enforcement investigated allegations that defendant made threats against the deputy district attorney then-assigned to prosecute the instant case. Based on that arrest and investigation, defendant filed a motion in the instant case to recuse the Fresno County District Attorney's Office. In opposition to the motion, the People represented that the deputy who was the subject of the threat allegations would not prosecute this case and had been screened from the prosecution, and the matter was assigned to a different deputy who was not a potential witness and had no improper interest in either case.

The court denied the motion to recuse the district attorney's office without prejudice on the ground defense counsel had not served the Attorney General's Office, as required under section 1424, subdivision (a)(1). On the same day, defendant's retained counsel was relieved as attorney of record and counsel was appointed to represent defendant. Less than a week later, the case involving solicitation to commit murder was dismissed due to insufficient evidence. The motion to disqualify the district attorney's office was not renewed.

Defendant has not demonstrated that counsel rendered ineffective assistance in failing to bring a renewed recusal motion. First, we cannot say counsel's performance was deficient. The record shows the prosecutor at issue was removed from the case, and defendant does not challenge the People's assertion that he was screened from the prosecution. Defendant points us to no factors regarding the size or nature of the district attorney's office that would warrant recusal based on the interests of a single prosecutor. (See Vasquez, supra, 39 Cal.4th at p. 57.) Moreover, the solicitation charges were dismissed, apparently because they were meritless. In this circumstance, it is not reasonably likely a recusal motion would have been granted. Because there was no basis for recusal of the district attorney's office, counsel's failure to seek recusal did not constitute deficient performance.

Moreover, defendant has not demonstrated he was prejudiced by the Fresno County District Attorney's continued prosecution of the case. The operative complaint in this action was filed in December 2013, months before the threat allegations arose. That complaint contained all the charges for which defendant was eventually found guilty, including the prior strikes and prior serious felony enhancements. It therefore is apparent that the threat allegations had no bearing on the People's decision to seek an extended, indeterminate prison term, as defendant contends. The record provides no basis to conclude the Attorney General would have handled the case any differently.

Defendant has not demonstrated ineffective assistance of counsel in this regard.

C. Corroborating Testimony Regarding Photographs of Defendant

Defendant contends his counsel was ineffective in failing to introduce testimony from the retired sheriff's deputy defendant claimed took photographs of his injuries following the incident.

As explained above, defendant testified that photographs introduced into evidence as defense exhibits depicted injuries to his face in the 24 to 72 hours after the incident. He specifically testified that the photographs showed bruising and swelling that occurred after Sarah hit him with a beer bottle. Defense counsel did not call the person defendant identified as having taken the photographs as a witness. In closing argument, the prosecutor argued:

"I want to talk really quickly about the Defendant's photos. The only person that was able to testify to the photographs of the Defendant is the Defendant himself. We have no idea when those [photographs] were taken. They could have been taken days, weeks, or months afterwards. We didn't hear any testimony from the person that actually took the photographs. So take those photographs for what they are. We don't know when they were taken. We know Sarah's photographs were taken on the night in question. We know we have other photographs of the Defendant on the night in question. You can look at those."

The decision on what witnesses to utilize is generally deemed a tactical decision. (Bolin, supra, 18 Cal.4th at p. 334.) Courts are unlikely to find the decision not to call a witness a reversible error unless it results from an unreasonable failure to investigate. (Ibid.) Here, the record sheds no light on the reason for counsel's decision, though there are myriad possible tactical reasons that could justify it. Because the record does not affirmatively reveal that the decision lacked a rational tactical purpose, and because defendant has not shown that counsel failed to conduct an adequate investigation or adequately prepare, we must reject defendant's claim. (Arredondo, supra, 8 Cal.5th at p. 711; Mickel, supra, 2 Cal.5th at p. 198; Bolin, supra, 18 Cal.4th at p. 334.)

D. Failure to Impeach Sarah Regarding her Medication

Defendant contends defense counsel was ineffective in failing to call an expert witness to testify regarding the effect of mixing alcohol with Sarah's medication, and in failing to sufficiently question Sarah regarding the effect of her medication. The relevant background is as follows.

In pretrial motions, the People sought to exclude evidence Sarah took medication for a mental health condition. The court initially indicated that it felt that any medications Sarah took on the date of the incident would be relevant. The People conceded her use of medication on the date of the incident was relevant, but contended that her diagnosis was irrelevant. The People pointed out that neither side had appointed a mental health expert, and argued the defense should not be able to undermine Sarah's credibility by arguing "she's crazy, she's unstable."

Defense counsel responded that the victim had taken her medication and consumed three drinks of hard alcohol and was aggressive on the night of the incident. The court queried, "Are you gonna be in a position where you're essentially asking jurors to use common sense or some other form of understanding that [this mental health condition] makes people aggressive, and all of this without anything to back it up?" Defense counsel responded that he was in the process of trying to procure an expert but, without more, intended to state "that she [has a mental health condition], she takes medication for it and she had three drinks, and she became aggressive."

The court stated it would not stop midtrial to allow the parties to prepare for a new expert at the 11th hour, and therefore would limit the argument to how defense counsel had described it and would permit the victim to be questioned on how the medication made her feel.

On the morning of trial, the court stated its understanding that defense counsel was still looking for an expert on this issue but, in the court's opinion, "that ship has sailed." Defense counsel explained that they had an expert "in the area of reflexology" that would have been able to testify to the effects of combining medication and alcohol, but that expert had backed out the week prior and defense counsel had not found a replacement. Defense counsel explained that he did not seek a continuance because he "was pretty much given the impression ahead of time that this case was not going to get continued one more time." The People argued that such evidence would have been irrelevant, in any event. Defense counsel noted that defendant "want[ed] to put on the record his personal objection to the denial of the continuance for purposes of replacing the expert," but the court did not permit defendant to act "as co-counsel" and deemed counsel's recitation of the objection sufficient.

A claim that counsel should have called additional witnesses at trial " 'must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation.' " (Bolin, supra, 18 Cal.4th at p. 334.) "We cannot assume from a silent record that particular witnesses were ready, willing and able to give mitigating testimony, nor can we speculate concerning the probable content or substance of such testimony." (People v. Medina (1995) 11 Cal.4th 694, 773.) Here, we have no basis to conclude any expert would have testified favorably for defendant regarding the interaction of alcohol with Sarah's medication. Consequently, "there is no evidence to support defendant's claim of ineffective assistance in this regard." (People v. Wash (1993) 6 Cal.4th 215, 269.)

As for his claim that defense counsel should have questioned Sarah regarding the effect of her medication, we note Sarah testified she did not feel that alcohol or medication affected her perception or recall of the event. She testified that the medication "balanced [her] out" and "made [her] feel normal." Further questioning was unlikely to elicit testimony that the medication made her feel aggressive, as would have been necessary to support the defense. And, to the extent defendant contends counsel should have impeached Sarah with her testimony from the preliminary hearing, wherein she stated combining alcohol with her medication "can make you drowsy," we note that such testimony would not have aided defense counsel in arguing Sarah was the aggressor.

Defendant has not demonstrated ineffective assistance of counsel on this basis.

E. Cumulative Ineffective Assistance of Counsel

Defendant also contends that the cumulative effect of the alleged errors and omissions committed detailed above amounted to ineffective assistance of counsel. Because we conclude defendant has not demonstrated ineffective assistance of counsel, there is no cumulative effect to weigh. (See People v. Burgener (2003) 29 Cal.4th 833, 884 ["Having found no ineffective assistance, we necessarily reject defendant's claim of cumulative error."].) We therefore reject this claim as well.

VII. Cumulative Prejudice

Appellant contends his conviction should be reversed because the cumulative effect of the errors identified above violated his due process right to a fair trial. However, "[w]e have rejected his claim of errors or, if error, of individual prejudice, and therefore he could not have suffered cumulative prejudice." (People v. Tully (2012) 54 Cal.4th 952, 1020.) VIII. Grant of Faretta Request

Defendant contends the court improperly granted his Faretta request for self-representation at the sentencing phase, and/or should have revoked defendant's self-representation based on his incapacity and disruptiveness. We disagree.

A. Additional Factual Background

After defendant's motion for new trial was denied, defense counsel was relieved as attorney of record, and the matter was continued to allow defendant time to retain counsel. When the matter came back on for hearing, defendant stated that he could not afford counsel, and stated, "So I think I'm going to go ahead and proceed pro per if it's okay with you from this point forward. I haven't been happy with any of the defense attorneys' performances in this matter. And, um, that's an issue in itself. I do believe I could better represent myself after seeing so many attorneys fail miserably." The court asked defendant whether he had reviewed the court's waiver form for self-representation and defendant confirmed that he had, but he had not filled it out because he did not have a pen and was handcuffed. The court then permitted defendant to complete the waiver form and orally reviewed the Faretta advisements with defendant, who stated that he understood.

Defendant immediately notified the court that he believed there were grounds to disqualify the judge, Judge Kams, pursuant to section 170.1 of the Code of Civil Procedure, specifically that defendant had named Judge Kams "as both a witness and a co-conspirator" in a civil suit against the county, and had also filed a complaint with "19 different agencies and organizations" reporting criminal acts by Judge Kams and various other public officials that allegedly occurred during the proceedings. Defendant stated his intent to file a motion for disqualification. The court set the matter for a status hearing, to be followed by a sentencing hearing.

When the matter next came before the court, defendant asked about the status of his "notification" of disqualification. The court stated defendant had not brought a disqualification motion. Defendant then made an oral motion pursuant to section 170.6 of the Code of Civil Procedure, which the court denied as untimely. The court advised defendant that, if he wished to bring a motion pursuant to section 170.1 of the Code of Civil Procedure, he was required to do so in writing.

Thereafter, defendant filed a written motion to disqualify Judge Kams, contending in a conclusory fashion that he had filed a complaint with various agencies alleging Judge Kams engaged in criminal acts, and had also filed an administrative claim for damages with the County of Fresno¹³ alleging judicial misconduct. Judge Kams answered the motion by denying the allegations of bias and stating the parties had informed him early in his assignment that defendant had filed civil suits against the complaining witness, other witness, and the previously assigned judge, with the apparent intent to "remove those persons who have a legal obligation to represent the executive and legal branches." Judge Kams noted that, although defendant had been disruptive in court, Judge Kams had nonetheless "remained calm, patient, and direct" and was guided solely by the law and facts. Judge Kams included with his answer a letter received September 8, 2017, that defendant had written to the court. Therein, defendant alleged he was sexually assaulted by bailiffs at the direction of Judge Kams, and referred to Judge Kams as a "very sick twisted sexually deranged faggot rapist." He also alleged that he was diagnosed with acute stress disorder the week before trial and had been prescribed new medication. A judge from another county ultimately denied the motion.

13 Defendant mistakenly identifies this as a "civil suit."

Before the matter came on for sentencing, defendant filed in this court a petition for a writ of prohibition challenging the denial of his disqualification motion. At the sentencing hearing, defendant opined he had "an issue of competency" based on psychiatric history dating back 20 years. Sentencing was continued pending disposition of the writ petition, which this court eventually denied. (Duley v. Superior Court (Dec. 20, 2017) F076654.) Defendant thereafter filed a large volume of documents in support of his claim of innocence.

When the matter again came on for sentencing, defendant immediately requested that a sheriff's deputy be sent to retrieve pills from a coat he left at the dry cleaners. He also began to make derogatory comments directed toward courtroom personnel and the victim, and engaged in a protracted discussion of a variety of other matters. The court interrupted and stated, defendant was "perhaps . . . encouraging the Court to declare a doubt." However, the court and defendant agreed to suspend the proceedings to allow defendant to speak with jail medical staff and report back the next day.

The next day, upon being asked about the sentencing report and recommendation, defendant stated, "I don't understand any of it," and began to talk about matters unrelated to his legal proceedings. The court noted that defendant "went on a rant" the day before and it "sounds like you want to do that again." The court further stated, "I don't think there's an issue in regards to mental health status, other than you don't want to be sentenced today. I'm going to proceed." Defendant again claimed not to understand and asked, "Sentencing for what?" The court stated, "You know very well what I'm talking about, but you can go ahead with that posture, if you like." The court then sentenced defendant.

B. Equivocal Request

Defendant contends his request for self-representation should have been denied because it was equivocal. We disagree.

"A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers." (People v. Valdez (2004) 32 Cal.4th 73, 97-98.) " 'The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion.' " (Id. at p. 98.)

Here, defendant stated, "I think I'm going to go ahead and proceed pro per if it's okay with you from this point forward." He also stated he had reviewed the court's waiver form and would have completed it were he not handcuffed and lacking a pen. When given the opportunity, he immediately completed the form, and he expressed no doubt during the court's advisements. There was nothing equivocal or ambiguous about his request.

We reject defendant's contention that his request was equivocal because he also expressed that he could not afford an attorney. Defendant was well aware counsel could be appointed to represent him at no cost. He was represented by appointed counsel for a period of more than a year prior to trial. He also was advised during the Faretta colloquy that counsel could be appointed at no cost, but maintained his desire to proceed with self-representation. His request for self-representation did not arise from a misunderstanding regarding the availability of appointed counsel.

We also reject defendant's contention that his request was equivocal because it implied he could be satisfied with a different attorney. Defendant stated, "I do believe I could better represent myself after seeing so many attorneys fail miserably." Prior to making this statement, defendant had been represented by three privately retained attorneys and at least two attorneys from the office of appointed counsel. Nothing about his statement or the record gives rise to the implication defendant now presses.

Finally, we reject defendant's contention that his request for self-representation was predicated upon being able to access funds to hire a private investigator and paralegal. Although defendant did indicate such a desire, the court stated it would entertain such requests if it granted defendant's request for self-representation. In other words, such funds were never guaranteed. Nonetheless, defendant confirmed his desire to proceed without counsel. We find no equivocation.

The court did not abuse its discretion on this basis.

C. Court Unaware of Discretion

Defendant contends his sentence must be reversed because the trial court was unaware it had discretion to deny defendant's Faretta request if it concluded defendant was not competent to represent himself. As defendant concedes, we presume the trial court was aware of and followed applicable law. (Bryant, supra, 60 Cal.4th at p. 398.) There is no basis for us to conclude otherwise. Defendant has not shown a basis for reversal on this ground.

D. Competency Concerns

Defendant contends the trial court should have appointed a mental health professional to examine defendant's ability to proceed unrepresented, and should have determined defendant was unable to proceed unrepresented, in light of his outburst during trial and the "bizarre" documents he presented thereafter.

A court may deny a request for self-representation when the defendant "suffer[s] from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves," even if the defendant is otherwise competent to stand trial. (Indiana v. Edwards (2008) 554 U.S. 164, 178; accord, People v. Johnson (2012) 53 Cal.4th 519, 530.) A trial court may order a psychological or psychiatric examination to inquire into the defendant's mental competence for self-representation when it has a doubt as to that question. (Johnson, at p. 530.) However, the court may only deny self-representation if the defendant's mental illness causes him or her to be "unable to perform the basic tasks necessary to present a defense." (Mickel, supra, 2 Cal.5th at p. 208.) Courts must be cautious in exercising their discretion to deny self-representation on this basis. (Johnson, at p. 531.)

Here, the trial court expressed no doubt that defendant was competent to defend himself. To the contrary, the court suggested defendant's disruptive and unusual behavior was intended to thwart the orderly operations of the court and to delay sentencing. In this circumstance, the court was not required to take further action to evaluate defendant's competence or to deny his request for self-representation. (People v. Espinoza (2016) 1 Cal.5th 61, 80 [no error where trial court had no doubt regarding the defendant's competence and disbelieved the defendant's claimed lack of understanding of the proceedings].)

Nor can we conclude that defendant was unable to perform the basic tasks necessary to his defense. (Mickel, supra, 2 Cal.5th at p. 208.) As we have previously stated, defendant's outburst during trial reflected a thorough understanding of, and vigorous disagreement with, the proceedings against him and the People's theory of the case. Moreover, at the time defendant's Faretta request was granted, he was articulate and informed in his communications with the court. He was able to perform basic legal tasks for himself, including requesting self-representation and obtaining and reviewing the relevant court form. He thereafter understood that the matter was proceeding toward sentencing and sought continuances to pursue what he viewed as meritorious issues regarding trial evidence. He submitted complaints regarding the trial judge to various agencies, then sought the judge's disqualification. When these efforts failed and the matter proceeded to sentencing, he engaged in a "rant" that the judge viewed as an attempt at further delay. In other words, defendant's efforts reflect a basic ability to represent and defend his own interests in the courtroom. While some of his efforts were unsuccessful and he ultimately may have been poorly served by his own representation, this does not demonstrate that he "suffer[ed] from severe mental illness to the point where [he was] not competent to conduct trial proceedings by [himself]." (Indiana v. Edwards, supra, 554 U.S. at p. 178.) To the contrary, absent more, the risk of ineffective representation is assumed by any defendant who chooses self-representation. (People v. Taylor (2009) 47 Cal.4th 850, 866 [the "likelihood or actuality of a poor performance" does not defeat the right of self-representation].)

E. Disruption of Proceedings

Defendant contends he should have been denied self-representation because he was disruptive at trial, and his self-representation should have been revoked when he became disruptive during various proceedings during the sentencing phase.

"[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." (Faretta, supra, 422 U.S. at p. 834, fn. 46; accord, People v. Carson (2005) 35 Cal.4th 1, 10 (Carson) [intentional efforts to disrupt and delay proceedings may support termination of self-representation].) "When determining whether termination is necessary and appropriate, the trial court should consider several factors in addition to the nature of the misconduct and its impact on the trial proceedings. One consideration is the availability and suitability of alternative sanctions. [Citation.] Misconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant's right of self-representation. [Citations.] The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status. [Citation.] Not every obstructive act will be so flagrant and inconsistent with the integrity and fairness of the trial that immediate termination is appropriate." (Carson, at p. 10.)

Defendant points us to no case overturning a grant of self-representation because of the defendant's disruptive behavior. This is likely because the exception to the right of self-representation for defendants who exhibit disruptive behavior is intended primarily to protect the integrity and dignity of the court, rather than to protect an otherwise competent defendant from his own misbehavior. (See Faretta, supra, 422 U.S. at p. 834, fn. 46 ["The right of self-representation is not a license to abuse the dignity of the courtroom."].) Regardless, the court was within its discretion to determine defendant's disruptive behavior did not affect the proceedings such that it compromised the court's ability to conduct a fair trial. (Carson, supra, 35 Cal.4th at p. 10.) In this regard, we note defendant represented himself only at the sentencing stage, when there was no jury who might be prejudiced by his behavior, and the court respectfully permitted defendant great leeway to deliver lengthy monologues expressing his concerns to the court. His behavior did not bring proceedings to a standstill (cf. People v. Welch (1999) 20 Cal.4th 701, 734), nor did it threaten to compromise the core integrity of the sentencing proceedings (see Carson, at pp. 7, 9).

Accordingly, defendant's disruptions do not provide a basis for reversal.

F. Continued Validity of Faretta

Defendant contends Faretta and its progeny should be overruled. We have no power to overrule the decisions of the United States Supreme Court on matters of federal law (People v. Bradley (1969) 1 Cal.3d 80, 86), and we therefore decline to consider this argument.

IX. Judicial Misconduct

Defendant contends that judicial misconduct pervaded the proceedings, denying him a fair trial and sentencing. More specifically, he contends the trial court failed to control the proceedings during closing argument, improperly granted defendant's request to represent himself at sentencing, and improperly considered and tolerated the online petition attached to the probation officer's report.

A party forfeits a claim of judicial misconduct by failing to object to the conduct and seek appropriate relief in the trial court, such as a mistrial or new trial. (People v. Sanders (1995) 11 Cal.4th 475, 531; People v. Raviart (2001) 93 Cal.App.4th 258, 269.) Here, defendant did not object or seek any relief from the trial court based on the judicial misconduct he now alleges. He therefore forfeited this contention.

His claims of judicial misconduct also fail on the merits. In the discharge of its obligations, a court has the duty to be " 'impartial, courteous and patient,' " and a serious violation of these duties may constitute reversible error. (People v. Harmon (1992) 7 Cal.App.4th 845, 852.) However, we have already concluded the court did not violate its duty to control the proceedings during closing argument, nor did it abuse its discretion in granting defendant's request for self-representation, and defendant has not shown that the court's conduct with respect to these proceedings was motivated by bias or any other ill motive. (Bell, supra, 49 Cal.3d at p. 542 [it is ordinarily not judicial misconduct when the trial court fails to intervene to curb prosecutorial misconduct].) As for the online petition, defendant did not object to its inclusion in the probation report and thus we would struggle to find the court erred, let alone engaged in misconduct, by failing to strike it. We note, in any event, the petition was not mentioned by the probation department in its discussion or recommendations, which the court generally followed,¹⁴ nor was it mentioned by the court during sentencing. Defendant therefore has not shown he was prejudiced by its inclusion.

14 The court diverged from the recommendations only with respect to which of the two counts to stay.

Defendant's claim of judicial misconduct fails.

X. Senate Bill No. 1393

Defendant's sentence includes two 5-year enhancements for prior serious felony convictions under section 667, subdivision (a)(1). Defendant and the People agree that the matter must be remanded for the trial court to consider striking these enhancements pursuant to the discretion granted by Senate Bill No. 1393.

Effective January 1, 2019, Senate Bill No. 1393 removed the restrictions on striking serious felony enhancements contained in sections 667, subdivision (a)(1) and 1385. (Stats. 2018, ch. 1013, §§ 1-2.) Defendant's case was not yet final when these amendments went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) As the People concede, because the change in the law vests the trial court with discretion to lower defendant's sentence, it applies retroactively in the instant case. (E.g., People v. Stamps (2019) 34 Cal.App.5th 117, 120, review granted June 12, 2019, S255843.) We accept, without further analysis, the People's concession that the matter must be remanded for the trial court to consider whether to strike the serious felony enhancements.

However, defendant also argues the trial judge's misconduct compels us to remand with instructions for resentencing to be conducted by a different judge. Although defendant cites no authority in support of this argument, section 170.1, subdivision (c) of the Code of Civil Procedure provides: "At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court." With respect to sentencing in particular, we must exercise the power to disqualify a judge under this provision sparingly, and only when required in the interests of justice. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256.) Proper grounds for disqualification include a circumstance " 'where a reasonable person might doubt whether the trial judge was impartial [citation], or where the court's rulings suggest the "whimsical disregard" of a statutory scheme.' " (Alhusainy v. Superior Court (2006) 143 Cal.App.4th 385, 394.)

Here, all defendant's claims of judicial misconduct and bias have been rejected. We therefore decline defendant's request to require further proceedings be conducted by a judge other than Judge Kams.

DISPOSITION

The matter is remanded for the trial court to choose whether to exercise its discretion to strike defendant's two prior serious felony conviction enhancements. (§ 667, subd. (a)(1).) Defendant's request to disqualify Judge Kams is denied. In all other respects, the judgment is affirmed.

DETJEN, J. WE CONCUR: LEVY, Acting P.J. MEEHAN, J.