People v. Meeks

Full title: THE PEOPLE, Plaintiff and Respondent, v. WALTER LEE MEEKS, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Sep 21, 2017

No. A140262 (Cal. Ct. App. Sep. 21, 2017)

Opinion

A140262

09-21-2017

THE PEOPLE, Plaintiff and Respondent, v. WALTER LEE MEEKS, Defendant and Appellant.

STEWART, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH50920)

Defendant Walter Lee Meeks appeals from his convictions after jury trial for three sex offenses against five-year-old twin sisters, Jane Doe 1 and Jane Doe 2, for which he was sentenced to 35 years to life in state prison.

Meeks contends numerous prejudicial errors occurred in the course of his trial. He contends that the trial court denied him his constitutional and statutory rights to be present for all critical proceedings unless he properly waived these rights; that regarding his count two conviction for committing a lewd and lascivious act upon Jane Doe 1, he was improperly convicted of a lesser included offense of another count; that regarding his count three conviction for committing a lewd and lascivious act upon Jane Doe 2, he was convicted of an uncharged crime, the court should have given further instruction regarding this count, and the court should have declared a hung jury; that the court erred in denying his motion for a trial continuance to try to obtain the testimony of a potential defense witness, and by doing so denied him his constitutional rights to compulsory process and a meaningful defense; that the court denied him his constitutional rights to competent counsel and a meaningful opportunity to investigate potential grounds for a new trial when it denied his post-conviction motions to replace his counsel and continue sentencing proceedings; and that he received ineffective assistance of counsel regarding many of these matters.

We have reviewed each of defendant's arguments and conclude no prejudicial error was committed below. Therefore, we affirm the judgment.

BACKGROUND

I.

The Charges Against Defendant

In September 2011, the Alameda County District Attorney filed an information against defendant. As later amended, the information alleged that between April 1 and April 30, 2010, defendant committed an act of oral copulation or sexual penetration against Jane Doe 1, a child 10 years old or younger, in violation of Penal Code section 288.7,¹ subdivision (b) (count one); a lewd and lascivious act against Jane Doe 1, a child under 14 years of age, in violation of section 288, subdivision (a) (count two); and a lewd and lascivious act against Jane Doe 2, a child under 14 years of age, in violation of section 288, subdivision (a) (count three). The information also included numerous sentence enhancement allegations. Defendant pled not guilty and the case proceeded to a jury trial.

1 All statutory references are to the Penal Code unless indicated otherwise.

II.

The Trial

On the second day of jury voir dire, the court allowed defendant to leave the courtroom at his request, and with his counsel's agreement, because he complained of pain from a broken tooth. After he left, the court and counsel continued to select jurors and alternates until completing selection later that day. A week later, defendant moved for a mistrial based on his absence. The trial court denied this motion, the trial proceeded and several witnesses testified about matters pertinent to this appeal.

A. Sabra Garibay

Sabra Garibay, age 23, testified that in April 2010 she was defendant's girlfriend and planned to marry him.² She had seen Jane Doe 1 and Jane Doe 2 two or three times at the Hayward, California home of a friend, Beatrice Martin, and had met the girls' mother. Garibay went to Martin's home frequently and was able to obtain drugs there.

2 Defendant was 35 years old at the time of trial.

On the day in question, Garibay testified, she and defendant were at Martin's home at around 9:00 or 10:00 in the morning. Jane Doe 1 and Jane Doe 2 were visiting Martin, who was sick that day. At defendant's request, Garibay told Martin they could take the girls off her hands if she was too tired to watch them, and Martin allowed them to do so.

Garibay said she, defendant and the girls went in defendant's van to Kaiser Permanente, where Garibay had about a 30-minute physical therapy session while the other three waited in the waiting room. They all then went to Garibay's father's house in Hayward, where Garibay lived. No one else was there. Garibay set the girls up in the living room to watch a movie, Thumbelina, giving them each a piece of chocolate cake. Both girls spilled cake on their clothes, so Garibay gave them each a big t-shirt to wear and washed their clothes.

Garibay testified that defendant went to Garibay's bedroom when they arrived at the house. At some point, Jane Doe 1 went in that bedroom while Garibay and Jane Doe 2 continued to watch Thumbelina in the living room. Garibay heard Jane Doe 1 laughing, jumping and playing. After about five minutes, defendant called Garibay, who went to him. Defendant was standing at the end of Garibay's bed as Jane Doe jumped up and down on it. As Jane Doe got off the bed, defendant told Garibay, "give me head" and laid down on the bed. Garibay was upset, said no and pointed out Jane Doe 1 was in the room. Defendant said he did not care, insisted that Garibay perform oral sex and said he would hurt Garibay if she did not. Garibay put her mouth on defendant's penis for about a minute and a half as Jane Doe 1 stood about five feet away.

Garibay testified that defendant then laid Garibay down on the bed and said to her, " 'Let's fuck. We're going to fuck.' " Garibay did not want to, but defendant threatened her and she relented. As Garibay lay on her back with her knees up, defendant put his penis in her vagina, causing her pain. As he moved his penis in Garibay's vagina, defendant looked at Jane Doe 1, who continued to stand at the head of the bed. Garibay told defendant to stop twice before he did. Garibay then left the room and Jane Doe 1 "pretty closely followed" her.

On direct examination, Garibay testified that after she, Garibay, left the bedroom, she was concerned about Jane Doe 2 and that Jane Doe 2 "[e]ventually" went into the bedroom, but "didn't stay long at all. She walked in and walked out." On cross-examination, Garibay said Jane Doe 2 ran in and out of the room before Garibay ever went into the room.

As we will discuss, the girls testified that defendant locked the door to Garibay's bedroom. The defense sought to prove the door to the room was broken and could not be locked. On direct examination, Garibay testified that in April 2010 her bedroom door could close, but she did not think it could lock; on cross-examination she said it "didn't have a lock." She also testified that the police had damaged the door in a raid that occurred before April 2010. Defense counsel showed her a photograph taken from inside her bedroom that, as suggested by her and defense counsel's statements, showed there were no door hinges on the door frame of her bedroom.³

3 Later at trial, a defense investigator, Deon Thompson Goolsby, testified that in September 2010 he took the photograph and observed that a door was missing to Garibay's bedroom.

Garibay further testified that in April 2010 the four eventually left her father's house, went to defendant's mother's house and to a McDonald's, where the girls played in a play house. Afterwards, they went to a park and then returned to Martin's house, arriving there around 5:00 p.m.

Garibay acknowledged that in her initial interviews with authorities, she denied anything improper occurred on the day in question because she was scared of getting in trouble, still loved defendant and was told by defendant not to say anything other than to make statements about his fingernails that were not true. On cross-examination, she acknowledged twice telling a defense investigator that defendant's nails were about an inch long in April 2010, but said that defendant actually had cut his nails by that time. She said she lied because she was scared, loved defendant and did not want him to get in trouble. She also testified that she told both Detective Quinn of the Hayward Police Department and a defense investigator that one of the girls had walked in as defendant and she were having sex behind a closed door, but that this was not true.

Garibay said that when she and defendant first became intimate she noticed he wore a GPS monitor. He explained he did so because he was a "chronic runner" from the law. Also, she understood that he "needed to be gang registered" as a gang member. She did not know he was a sex offense registrant until he told her in June 2010, when he was in jail, that he had previously touched his cousin. She was very disgusted by this news, but was still in love with defendant and continued to visit him weekly at the jail for several more months, sometimes along with defendant's mother. Garibay broke up with defendant sometime between August 2010 and October 2010, last visited him in late January 2011 and had a new boyfriend by March 2011.

Garibay also testified that in June 2011 she denied to a prosecutor that she had vaginal intercourse with defendant on the day in question. The prosecutor told her to go home and suggested she talk to other people in order to feel comfortable enough to tell him what happened. She was "[a] little more honest" when the prosecutor interviewed her again a few weeks later, but she still did not disclose everything to him. She did not feel pressured by him to say anything because he told her the whole time that he was not going to charge her. He interviewed her again on August 25, 2011, the day of defendant's preliminary hearing. At that preliminary hearing, she provided the same information she provided in her trial testimony.

B. The Mother of Jane Doe 1 and Jane Doe 2

The mother of Jane Doe 1 and Jane Doe 2 (mother) testified that she first met defendant in 2009 through her friends, Beatrice Martin and Joe Rodriguez, and saw him every once in a while. On April 8, 2010, the girls began a visit of a few days at Martin's house. They were very close to Martin and called her "Aunt Bea." When the girls returned home, mother learned that they went out with someone else while staying with Martin, but they did not complain about anything and mother did not pursue the issue with Martin.

Later that month, on April 23, 2010, mother was consoling Jane Doe 1 about something when Jane Doe 1 said defendant, who she called "Thumper," "had hurt her with his hand on her 'tow-tow,' " meaning her vagina. Mother talked to Jane Doe 2 alone and asked her if Thumper had touched her, and Jane Doe 2 said he had not. Mother called Martin and asked her what happened. That evening, she brought the girls to a police station to report what happened.

C. Detective Mark Quinn

Detective Mark Quinn of the Hayward Police Department's Special Victims Unit testified that he led the investigation into the girls' allegations. During his investigation, Quinn learned defendant was a sex offender registrant. He spoke to defendant's parole officer, Nghia Tran, who was supervising defendant's parole on a non-sex offense, and learned that defendant wore a GPS monitor at all times

Quinn also testified that he interviewed witnesses. On June 2, 2010, he interviewed Garibay, who denied having any knowledge of a crime and denied having sex with defendant on the day in question. On June 29, 2010, Quinn interviewed Garibay again. After he told her there were questions about her truthfulness and who to charge, she said she had vaginal sex with defendant in her bedroom on the day in question and that one of the girls had walked in on them. He interviewed Beatrice Martin on June 9, 2010, by telephone, but he did not testify about the content of the interview. As we will discuss, another Hayward police officer interviewed Martin later in that same month.

Quinn further testified that he arranged for Jane Doe 1 and Jane Doe 2 to be examined by a doctor, who told Quinn the results of his exams were "inconclusive." Quinn also arranged for the girls to be interviewed at a Child Abuse, Listening, Interview and Coordination (CALICO) center on May 10, 2010. Their video-recorded CALICO interviews were admitted into evidence and played for the jury. The girls also testified at trial, when they were eight years old.

D. Jane Doe 1

1. CALICO Interview

Jane Doe 1 told her CALICO interviewer that she, her sister, Thumper and Thumper's girlfriend went in a car to Thumper's house, where she watched her favorite movie, Thumbelina. At some point, she went into Thumper's room and jumped on the bed while her sister stayed in the living room. Thumper called his girlfriend in from the living room and they did "nasty stuff," while Jane Doe 1 both covered her face and saw a little bit. Thumper's girlfriend sucked Thumper's "tow-tow," and Thumper put his tow-tow inside his girlfriend's "butt." Jane Doe 1 yelled her sister's name, and Thumper told her not to yell for her sister. After the girlfriend left the bedroom, Thumper locked the door. He carried Jane Doe 1 onto the bed, moved her "chonies" aside and touched Jane Doe 1 on her "tow-tow" with his hand; Jane Doe 1 pointed at her vagina as she recounted him doing so. He pulled her "tow-tow" open and put his hand inside. He hurt her.

Jane Doe 1's sister, Jane Doe 2, then went into Thumper's room, while Jane Doe 1 watched Thumbelina in the living room. Jane Doe 2 called for help and Jane Doe 1 tried to open the door to the room, but it was locked. Jane Doe 1 said she saw from the living room that Thumper touched her sister's tow-tow, but she could not explain how she saw this. She also said she talked with Jane Doe 2 about Thumper, but that neither girl said what Thumper did.

2. Trial Testimony

Jane Doe 1's trial testimony was consistent with her CALICO interview. She testified that when she was five years old, she and her sister went with Thumper and his girlfriend in Thumper's van to Thumper's house. Jane Doe 1 had not seen Thumper before. When they arrived at the house, she and her sister watched a movie, Thumbelina, and Jane Doe 1 spilled cake on her dress. The girlfriend washed Jane Doe 1's pants, and Jane Doe 1 put on one of Thumper's big t-shirts.

Jane Doe 1 further testified that Thumper was in his room. At some point, he told her to come there. She did and he closed and locked the room's door. She jumped on the bed for a time. Defendant then called his girlfriend to the room. Jane Doe 1 stopped jumping because defendant and his girlfriend began "doing nasty things."

Jane Doe 1 further testified that Thumper and his girlfriend pulled down their pants and Thumper put his "pee-pee"⁴ in his girlfriend's "butt" as the girlfriend lay on her back, and that the girlfriend also put her mouth on Thumper's pee-pee. Jane Doe 1 was under a blanket, scared, as these things occurred. After the girlfriend left the room, Thumper touched Jane Doe 1's flower on the outside with his hand and then put his fingers inside. Jane Doe 1 yelled for her sister because she was scared. At some point, Jane Doe 1 returned to the living room, where she watched the rest of the movie while her sister went into Thumper's room for a time and came back out.

4 Jane Doe 1 testified that she used the term "pee-pee" for penis, "flower" for vagina and "butt" for buttocks.

Jane Doe 1 further testified that when she got home, she told her mother right away what had happened and her mother called the police. Jane Doe 1 also went to a place and told a lady what had happened. Everything she told the lady was the truth. She saw a video of herself talking to the lady, but could not remember when she saw it.

E. Jane Doe 2

1. CALICO Interview

Jane Doe 2 told her CALICO interviewer that the group went to Thumper's girlfriend's house and at some point Jane Doe 2 went to the bedroom where Thumper was located to see what was going on there. Thumper was in the room alone. After she entered the room, he locked the door and would not let her out, ignoring her requests to leave and telling her to be quiet. Jane Doe 2 said that Thumper "put me on the bed" and then got on the bed himself. He was wearing "chonies," which he opened to take out his private part, which was a "big one," and showed her his "pee hole." He did not otherwise ask to touch her or have her touch him. Eventually, he let her out of the room.

Jane Doe 2 also said she knew Thumper touched her sister's private part because her sister told her, and she heard her sister tell their mother what Thumper did to her. She also knew Thumper's girlfriend sucked Thumper's private part based on what her sister told her. She forgot to tell her mom about what happened with Thumper in the bedroom.

2. Trial Testimony

At trial, Jane Doe 2 testified that on the day in question, she was visiting "Uncle Joe" and Aunt Bea when Thumper came over to see Uncle Joe. She had seen Thumper twice before. Thumper said he wanted to take the girls to McDonald's and they left with Thumper's girlfriend after Uncle Joe and Aunt Bea gave their permission.

The four first went to the girlfriend's doctor. They then went to the girlfriend's house, where they watched Thumbelina on a television in the living room. Jane Doe 2 was wearing jeans and a shirt. She spilled some juice on her clothes, so she changed into a big t-shirt. She did not have anything to eat at the house.

At some point, while Jane Doe 2 watched the movie and the girlfriend sat nearby at a computer, Jane Doe 1 went into Thumper's girlfriend's room behind a closed door. At some point, the girlfriend went into the room as well. When Jane Doe 1 came out of the room, she called Jane Doe 2 into the room, told her she could jump on the bed and left. Only Thumper was in the room. He carried Jane Doe 2 onto the bed and she jumped on it; Jane Doe 1 came back and jumped on the bed with her for a time, and then left the room again. At some point, Jane Doe 2 stopped jumping and laid down on the bed. Thumper said, "[D]o you know what this is?" as he showed her his private part through his boxers. She felt "[v]ery creeped out."

Jane Doe 2 testified about two additional events that she did not discuss in her CALICO interview. First, she testified that Thumper also touched her "in her private part" on top of her clothes.⁵ Second, when asked who was "the first person you ever told about what had happened" after she was with defendant and Garibay, Jane Doe 2 said she told Aunt Bea when the girls returned from the McDonald's. Jane Doe 2 did not testify further about what she told Martin that day.

5 Detective Quinn testified that Jane Doe 2 first told authorities that defendant touched her vagina in an interview with a prosecutor and Quinn on the day of defendant's preliminary hearing.

Jane Doe 2 testified that she remembered being questioned by a lady when she was five years old, but did not tell the lady about Thumper touching her private part because she did not feel safe at the time; however, everything she told the lady was true. She did not tell mother at first what happened because she was scared to tell her. About five to ten weeks before the trial, Jane Doe 2 watched a video-recording of her interview with the lady one time.

F. Linda Lopez

Defendant's mother, Linda Lopez, testified that she knew in April 2010 that defendant was a sex offense registrant who was not allowed to be around children. When defendant and Garibay came by her house with the girls on the day in question, she asked defendant to take the children home. He said he would after first stopping at a McDonald's.

Lopez testified about the incident that led to defendant's sex offender registration requirement. She said it occurred in 1993, when defendant was 16 years old, and that it was not proven that he raped the child involved, who was around four or five years old.

Lopez also testified that defendant kept his fingernails long for "as long as I can remember." His fingernails were probably "[a]nywhere from about a half-an-inch to an inch" long in April 2010.

G. Defense Evidence

The defense sought to undermine the credibility of the testimony of Garibay, Jane Doe 1 and Jane Doe 2, including in the following two ways. First, it tried to prove there was not a functioning door to Garibay's bedroom as of April 2010. Jade Brown, a friend of Garibay's, testified that a week after a January 2010 police raid of Garibay's house, she saw that Garibay's bedroom door was kicked in and "[t]here was only half left, the top half." There was a doorknob, "but right underneath the doorknob, the rest of it was gone." When Brown visited the house in June 2010 and lived there for a time starting in August 2010, there was "no door at all" to Garibay's room. However, Brown did not visit the house in April 2010. Brown also acknowledged on cross-examination that she had had a falling out with Garibay and was friends with defendant's mother. The defense investigator, Thompson Goolsby, also testified that in September 2010 he observed that there was no door to Garibay's room.

Second, the defense sought to prove that defendant had very long fingernails in April 2010, apparently to show that he could not have touched the girls' vaginas as they indicated. Along with Lopez's testimony, Thompson Goolsby testified that in September 2010 Garibay told him that defendant's fingernails were "usually about one-inch long" and that Lopez told him defendant had long fingernails.

The defense also sought the testimony of Beatrice Martin. As we will discuss, it was unable to obtain her testimony.

At the conclusion of its presentation of evidence, the defense read a stipulation to the jury stating that, if called to testify as a witness, Dr. James Crawford of the Oakland Children's Hospital Center for Child Protection would testify that on May 27, 2010, he examined Jane Doe 1 and Jane Doe 2, that these examinations were unremarkable and that neither examination proved nor disproved prior sexual abuse.

H. The Jury Verdicts

After the jury was given its instructions and heard closing arguments, it began deliberations. After about seven and three-quarters hours, the jury told the court it had reached verdicts on counts one and two regarding Jane Doe 1, but not on count three regarding Jane Doe 2. This was on a Friday, and the court instructed the jury to return on Monday to continue deliberating. On Monday, the jury announced it had reached a verdict, finding defendant guilty on all counts and finding the "multiple victims" sentencing enhancement allegations to be true. Subsequently, after a bifurcated portion of the trial, the jury found true sentencing enhancement allegations that defendant had two prior convictions, including a burglary conviction that constituted a "strike" under the Three Strikes Law.

III.

The Post-Conviction Proceedings

Prior to sentencing, the court granted defense counsel's motion to be relieved as counsel and appointed attorney John Noonan to represent defendant. Defendant subsequently brought a Marsden ⁶ motion to have Noonan replaced because Noonan did not review all of defendant's previous Marsden motions. The court denied this motion, as well as defendant's request for a continuance, and proceeded to sentencing.

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

The court sentenced defendant to a total prison term of 35 years to life. This consisted of 15 years to life for count one, doubled to 30 years to life based on defendant's prior strike conviction, plus a consecutive five-year enhancement because of his prior serious felony conviction. The court imposed a sentence of two years for count two, which it stayed, and a sentence of two years on count three, doubled based on defendant's prior strike conviction, to run concurrent with the count one sentence.

Defendant filed a timely notice of appeal from the judgment.

DISCUSSION

I.

The Trial Court Did Not Prejudicially Deny Defendant of His Right to Be Present

During Jury Voir Dire.

Defendant argues that we must reverse the judgment because the trial court violated his constitutional and statutory rights in excusing him from jury voir dire at his request because of a toothache. He contends the court did nothing to ensure he made a voluntary, knowing and intelligent waiver of these rights, and that he received ineffective assistance of counsel on the issue. We disagree.

A. The Proceedings Below

Jury voir dire began on December 10, 2012. Soon after the second day began on the afternoon of December 11, the court asked counsel to approach the bench and conducted a discussion off the record. Afterwards, the court told the prospective jurors, "Before we get started, . . . Mr. Meeks isn't feeling well so he's leaving, so I just wanted to read this instruction. . . . [¶] The fact that the defendant is in custody is not evidence. Do not speculate about the reason. You must completely disregard his circumstances in deciding or considering anything related to this case. Do not consider it for any purpose or discuss it." Defendant left the courtroom and his attorney continued to participate in jury voir dire.

Later that same day, at the suggestion of defense counsel, the court stated its reasons for excusing defendant: "So just for the record to be clear, Mr. Meeks was in pain because he broke his tooth and he was not feeling well and he asked to leave the courtroom. I did so without excusing the jury from the room because it was pretty immediate and having him leave with excusing all of them from the courtroom was a little bit much. So what I did is I allowed him to leave with the deputy and then I read the jury instruction regarding the jurors not to read anything into the fact that he was in custody. Because he was raising his hand, so I thought that it made sense to handle it that way."

At defense counsel's request, the court also excused defendant from the jury voir dire scheduled for the following day, December 12, but the proceedings actually ended on the afternoon of December 11. Defendant, who is Caucasian, notes in his opening brief the racial, ethnic and gender types of the jurors and alternate jurors selected, as well as of those potential jurors for which each side exercised peremptory challenges.

The next week, before the actual trial began, defendant moved for a mistrial, including on the ground that he left the courtroom during jury voir dire because of a painful broken tooth and therefore, as defense counsel explained it, "was voluntarily absent from a critical stage of proceedings." The trial court denied this motion on the grounds that defendant himself decided to leave the courtroom and, further, did not alert anyone about his broken tooth before leaving the jail that day. The court said, "So we're here in the middle of jury voir dire, and he initiated, by waving his hands and drawing attention to it, and we had to do something, and you agreed that he would leave versus excusing the jury from the room while he left. And then, after he did leave . . . I did give the instruction that he was in custody and that there was nothing to be gleaned from that." The court concluded that defendant's rights had not been compromised in any way.

B. The Relevant Law

Defendant argues his federal and state constitutional rights and his statutory rights under sections 977 and 1043 were prejudicially violated by the trial court's decision to proceed with jury voir dire in his absence.

Under the United States Constitution, "due process clearly requires that a defendant be allowed to be present 'to the extent that a fair and just hearing would be thwarted by his absence' [citation]. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." (Kentucky v. Stincer (1987) 482 U.S. 730, 745.) Article I, section 15 of the California Constitution provides due process protections that are coextensive with those provided in the United States Constitution. (People v. Castaneda (2011) 51 Cal.4th 1292, 1318; People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez).) A waiver of the federal constitutional right to be present must be " ' "intelligent and competent." ' " (Gutierrez, at p. 1207, quoting Cross v. United States (D.C. Cir. 1963) 325 F.2d 629, 631.)⁷

7 Under the Sixth Amendment's confrontation clause, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent "interference with [his] opportunity for effective cross-examination." (Kentucky v. Stincer, supra, 482 U.S. at p. 744, fn. 17.) Defendant argues this right should also attach to his right to a fair and impartial jury, but acknowledges that our Supreme Court has limited its application to circumstances affecting a defendant's opportunity for effective cross-examination, and has not extended it to jury voir dire. (People v. Castaneda, supra, 51 Cal.4th at p. 1317 [no relation between court conferences with counsel during jury voir dire and a defendant's opportunity for effective cross-examination].) We do not discuss this part of his argument further because we must follow our Supreme Court's interpretation under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.

Defendant also relies on sections 977 and 1043, which "implement the state constitutional protection." (Gutierrez, supra, 29 Cal.4th at p. 1202.) Section 977 addresses the accused's right to be present in court proceedings against him or her, and to waive that right for certain of those proceedings. Section 977, subdivision (b)(1) provides that the accused "shall be personally present" for certain fundamental proceedings, such as arraignment and those portions of the trial when evidence is taken before the trier of fact. (Gutierrez, at p. 1202.) It provides that for all other proceedings, the accused is entitled to be present "unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present." (§ 977, subd. (b)(1).) Section 977, subdivision (b)(2) provides the form for this written waiver.

Section 1043 governs circumstances in which certain criminal defendants are present at the commencement of trial proceedings, but are then absent from those proceedings without executing a written waiver of the right to be personally present. It provides that, "[e]xcept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial" (§ 1043, subd. (a)), which "[f]or purposes of section 1043, . . . begins with jury selection." (People v. Concepcion (2008) 45 Cal.4th 77, fn. 4.) Section 1043 authorizes a trial court to proceed with any non-capital trial that has commenced in a defendant's presence if subsequently the defendant is "voluntarily absent." (§ 1043, subd. (b)(2).)

Under section 1043, a trial court may continue with a trial in a defendant's absence "without first obtaining the defendant's written or oral waiver of the right to presence—if other evidence indicates the defendant has chosen to be absent voluntarily. While a defendant's express waiver in front of the judge might be the surest way of ascertaining the defendant's choice, it is not the only way. A defendant's 'consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.' " (Gutierrez, supra, 29 Cal.4th at p. 1206; see also id. at p. 1202 [the privilege of being present " 'may be lost by consent or . . . by misconduct' "].) "In determining whether a defendant is absent voluntarily, a court must look at the 'totality of the facts.' " (Id. at p. 1205.) Further, "[s]ubdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977." (§ 1043, subd. (d).)

"The role of an appellate court in reviewing a decision to proceed with trial in a defendant's absence is a limited one. (People v. Concepcion, supra, 45 Cal.4th at p. 84.) When a trial court finds a defendant was voluntarily absent, we review the totality of the circumstances for substantial evidence. (Ibid.)

C. Analysis

1. Defendant's Constitutional Claims

First, defendant argues the trial court violated his federal and state constitutional rights to be present during a critical phase of his trial, voir dire, by excusing him from the proceedings and continuing in his absence, even though he was forced to be absent due to physical pain caused by a broken tooth.

We reject this argument because the record indicates defendant left the courtroom voluntarily after knowingly and intelligently waiving his right to be present for voir dire. The court's comments indicate that it felt compelled to act when defendant began to disrupt the proceedings by waving his arms, and that the court excused him from the courtroom with defense counsel's approval. Defendant contends he did not voluntarily leave, but instead was forced to do so because of his physical pain. Nothing in the record indicates this was the case. Indeed, contrary to this contention, his counsel stated in support of his mistrial motion that defendant had been "voluntarily absent" from the proceedings.

Defendant also contends his waiver was not a voluntary, knowing, intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences," citing Brady v. United States (1970) 397 U.S. 742, 748. In People v. Moon (2006) 37 Cal.4th 1 (Moon), our Supreme Court rejected precisely this argument. Moon orally asked to be, and was, excused from a jury viewing of certain evidence at the crime scene. (Id. at p. 19.) He argued on appeal that his Sixth Amendment rights had been violated because "no showing was made that he understood the nature of the right he was waiving. Thus . . . '[t]he record is silent as to whether counsel had discussed with [him] the meaning of the right involved or the potential consequences of waiving this right. Nor does the record contain anything from which one could infer that the waiver of presence at the crime scene was knowing and intelligent.' " (Moon, at p. 20.)

Our Supreme Court rejected Moon's argument based on People v. Weaver (2001) 26 Cal.4th 876. The court wrote: "Discussing the claim, raised in [Weaver], that the defendant's waiver of his right to be present in the courtroom was invalid because he had not been advised of the importance of his personal presence, we explained that he 'cites no authority for his argument that we must apply a heightened waiver standard under the circumstances, or that the trial court had a sua sponte duty to admonish him of the importance of his decision to absent himself from the [proceedings]. Defendant was represented by counsel, and he himself chose, for his own reasons, to [absent himself]. We find nothing improper about the procedure used, and we conclude defendant's waiver of his state and federal constitutional right to be present at this phase of his capital trial was both voluntary, knowing and intelligent.' " (Moon, supra, 37 Cal.4th at pp. 20-21.)

Based on this same reasoning, we conclude the court continuing with jury voir dire after excusing defendant from the proceedings at his request did not violate his federal and state constitutional rights.

2. Defendant's Statutory Claims

Second, defendant argues the trial court prejudicially violated his statutory rights. We disagree. Substantial evidence indicates defendant, after being initially present for jury voir dire, voluntarily absented himself from the proceedings. There is no evidence in the record to support defendant's contention that he was experiencing such severe pain from a broken tooth that his absence was involuntary. Based on these totality of circumstances, we conclude the court's action satisfied the requirements of section 1043. (See Gutierrez, supra, 29 Cal.4th at p. 1205.)

Defendant also argues the trial court erred by not obtaining from him a written waiver of his right to be present under section 977 before excusing him. Assuming for the sake of argument that the trial court erred by not obtaining defendant's written waiver of his right to be present as required by section 977, we conclude for two reasons that the error was harmless under our state standard for statutory error. (See People v. Avila (2006) 38 Cal.4th 491, 598 [any violation of section 977 is statutory and " 'thus "is reversible only if it is reasonably probable the result would have been more favorable to defendant absent the error" ' "].)

First, as we have discussed, the record indicates defendant left the jury voir dire voluntarily and with his counsel's agreement, and that he did not request any continuance of the proceedings. Therefore, we have no doubt that he would have executed a written waiver if the court had sought one under section 977. (People v. Huggins (2006) 38 Cal.4th 175, 203 [finding error to obtain written waiver harmless when "the record makes clear that defendant voluntarily waived his right to be present, if only orally"].)

Second, assuming for the sake of argument that the court erred under state statutory law in proceeding with jury voir dire in defendant's absence, defendant merely speculates that there was prejudice for various reasons, even arguing the prejudice rises to the level of structural error. For example, he emphasizes the racial, ethnic and gender types of the jurors and alternate jurors, as well as of those for which peremptory challenges were exercised, but states nothing that establishes how his presence could have led to a different result or how the selection of jurors resulted in an unfair trial. Similarly, he points out that the jury struggled with reaching a verdict on count three, which we will discuss further, without explaining how his presence during jury voir dire would have affected this aspect of the jury's deliberations or its verdict. In short, he fails to demonstrate that his absence prejudiced his case. (See People v. Bloyd (1987) 43 Cal.3d 333, 360 [stating regarding a speculative claim that defendant's absence from part of jury voir dire prejudiced his case, " '[t]he burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial' "].) We reject his claim on this ground as well.

3. Defendant's Ineffective Assistance of Counsel Claim

Defendant also contends he received ineffective assistance of counsel regarding his right to be present and his waiver of that right.

To establish ineffective assistance of counsel, a defendant must show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms, and subjected defendant to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice is shown if there is a reasonable probability that, but for an unprofessional error by counsel, defendant would have obtained a more favorable result in the proceeding. (People v. Cain (1995) 10 Cal.4th 1, 28.) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) To find ineffective assistance of counsel, we must conclude that the " ' "record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her act] or omission." ' " (Ibid.)

Because we conclude the trial court did not violate defendant's constitutional rights and that any error regarding his statutory rights was harmless, we reject defendant's contention that he received ineffective assistance of counsel.

II.

The Jury Did Not Convict Defendant in Count Two of a Lesser Included Offense of

Count Three.

Defendant next argues that his conviction for committing a lewd and lascivious act upon Jane Doe 1 in violation of section 288, subdivision (b) (count two) must be reversed because this offense is necessarily included in the offense of committing sexual penetration of Jane Doe 1, a child 10 years of age or younger in violation of section 288.7, subdivision (b) (count one). We disagree.

A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense based on the commission of a single act. (People v. Pearson (1986) 42 Cal.3d 351, 355, disapproved in part on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 651).) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) While the "facts actually alleged" and elements tests are used to determine whether a defendant received sufficient notice so as to allow his conviction for an uncharged lesser offense, only the elements test is used in determining whether a defendant may be convicted of multiple charged crimes. (People v. Reed (2006) 38 Cal.4th 1224, 1229-1230.)

Here, we compare the elements of the count one offense of sexual penetration of a child as stated in section 288.7, subdivision (b) with the elements of the count two offense of a lewd and lascivious act on a child as stated in section 288, subdivision (a). We conclude the count two offense is not a lesser included offense of count one because it alone requires an intent involving sexual arousal or sexual gratification.

Specifically, section 288.7, subdivision (b), the basis for count one, applies to an adult sexually penetrating a child under the age of 10, including with an intent other than sexual desire. "Sexual penetration" is defined as "the act of causing penetration . . . for the purpose of sexual arousal, gratification, or abuse . . . ." (§ 289, subd. (k)(1); italics added.) Unlike sexual arousal or gratification, "sexual abuse" does not require a sexual motivation. (People v. White (1986) 179 Cal.App.3d 193, 204-206 (White) [concluding that an act could constitute "sexual abuse" under a previous, similar version of section 289 if done without sexual intent]; accord, People v. McCoy (2013) 215 Cal.App.4th 1510, 1541.)

On the other hand, Section 288, subdivision (a), the basis for count two, requires that any person who "willfully and lewdly commits any lewd or lascivious act" upon the body of a child under the age of 14 do so "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." (Italics added; see People v. Raley (1992) 2 Cal.4th 870, 907 [referring to this "specific intent" under section 288].) Thus, an act of "sexual abuse" that is committed without sexual intent can be an act of "sexual penetration" that violates section 288.7, subdivision (b), the basis for count one, but not section 288, subdivision (a), the basis for count two.

Defendant agrees that we should apply the elements test here. However, he argues, we should reject the holding of White because it runs afoul of grammar and rules of statutory interpretation.⁸ In his view, "[e]ach of the acts prohibited by section 288.7 is sexual in nature and connotes erotic activity."

8 Defendant also notes that section 288.7, subdivision (b) refers to both sexual penetration and oral copulation, and that defendant was charged here only with sexual penetration. He contends that "[t]he statutory elements test must be limited to the crime actually prosecuted and not all potential crimes set forth in a single statute." We need not further address this contention because we conclude a section 288, subdivision (a) violation is not a lesser included offense of a sexual penetration-based violation of section 288.7.

We decline to reject White for a simple reason. The Legislature intended that an act of "sexual penetration" in violation of section 288.7, subdivision (b) is one committed for any one of the three intents stated in section 289, subdivision (k)(1), including sexual "abuse." If "abuse" were a subset of the other two intents, sexual "arousal" and sexual "gratification," there would be no reason to state it separately, and it would render the term "abuse" surplusage, thereby violating a well-established principle of statutory interpretation. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [" '[W]henever possible, significance must be given to every word [in a statute] in pursuing the legislative purpose, and the court should avoid a construction that makes some words surplusage' "].)

We conclude defendant's claim that count two alleges a necessarily included offense of count one lacks merit. Because we conclude defendant was not convicted of a lesser included offense, we also reject his contention that he received ineffective assistance of counsel regarding this issue.

III.

The Court Should Have Given a Unanimity Instruction Regarding Count Three , But

Its Error Was Harmless.

Defendant next argues that we must reverse his conviction for committing a lewd and lascivious act against Jane Doe 2, count three, because the trial court erred in instructing the jury regarding the count. Defendant asserts the court should have instructed the jury that it was required to unanimously agree on what act, if any, was the basis for a guilty verdict, since the prosecution argued that either of two distinct acts committed by defendant could serve this purpose. We agree that the court erred, but conclude the error was harmless.

A. The Proceedings Below

During his opening statement, the prosecutor told the jury defendant was guilty of the count three offense because he touched Jane Doe 2's vaginal area, and presented Jane Doe 2's CALICO interview and testimony to support this assertion. However, Jane Doe 2 also indicated that defendant lifted her onto the bed and soon thereafter showed her his penis.

In his closing argument, the prosecutor told the jury that it was "important" to understand that the "touching" required for a count three conviction could be "either on the bare skin or through the clothing," just touching clothing was "enough" and the "touching need not be done in a lewd or sexual manner." He suggested defendant's "picking up" Jane Doe 2 and carrying her to the bed could be a basis for a conviction, saying: "[Defendant] didn't have to break the law by picking up Jane Doe number 2. Of course you don't break the law when you pick her up. But if you pick her up because you have sexual intent, that's against the law." He also reminded the jury, "What did Officer Quinn tell you? Lifting her on the bed was enough of a touching." The prosecutor also argued that defendant's touching included touching Jane Doe 2's vagina, but he did not contend that was the only act upon which a conviction could be based.

In his rebuttal, defense counsel challenged Jane Doe 2's overall accuracy as a young child. In emphasizing the delay in having the girls interviewed at CALICO until weeks after the incident, he stated, "In that period of time the imaginations in pliably suggestive minds in normal 5 years old were allowed to ferment and run free range. Is it any wonder that when you listen to that CALICO account and you hear that account within itself and with what was said on the witness stand here that their accounts are conflicting, confused and inconsistent. Do they really know what happened? Or have their imaginations and the fantasy apparatus of 5-years-old run?"

Discussing Jane Doe 2's CALICO interview specifically, defense counsel said, "Remember [the girls are] 5 years old, they may not remember what they had for breakfast, or whether it was good, or bad, or what they may have been thinking yesterday or last week." He described Jane Doe 2 as a "sweet little" child and continued, "[S]he's only 5 years old. And for centuries philosophers, and religions, and everybody else have held that people don't reach the age of reason until about 7 years old. These little kids are only 5 and they're expected to be able to understand the . . . moral need to say something that is accurate when they've got all different kinds of information being input into them, and they probably can't really distinguish about the different sources of information that they have." He contended that Jane Doe 2 made certain inconsistent statements during her interview about her time at the house which indicated that she was "not distinguishing between reality and between the input information that's in her mind and where it came from." He emphasized, "Again, these are children. These are children's minds."

Further, defense counsel said about Jane Doe 2's CALICO interview, "This part about the description of the male sex organ. Maybe that happened. I don't know. But if it did, it's not the crime that's charged here in terms of 288(a). It's the crime that's charged with regard to this little girl Jane Doe 2. [¶] In this interview she says at least two or three times that nothing happened, probably more than that. She said that nothing happened and he didn't touch her body anywhere. The interviewer goes through a whole list . . . . Nothing happened. No touching."

Defense counsel argued the girls were overly influenced by their review shortly before trial of their CALICO interviews and their desire to please the adults who questioned them. He argued that the girls, by stating at trial that everything they said in their CALICO interviews was true, indicated that "even today two and a half years later . . . they don't really understand the concept of what may be true and what may be not true." He emphasized, "I'm not saying these girls are lying. I'm saying when you're caught up and you've got an authority figure talking to you and maybe suggesting certain things . . . you want to say the thing that you think you're supposed to say. Maybe that's kind of what these little girls think the truth is."

Defense counsel referred to various inconsistencies, but only once and in passing said there was an inconsistency regarding "whether or not Jane Doe 2 had been molested at all." He also said, "I'm not attacking the credibility of these children, I'm merely pointing out because of their tender years pliable minds at the time of the original [CALICO] interview and because they had been exposed to those videos prior to testifying their accounts are not reliable enough to convince anyone beyond a reasonable doubt that [defendant] committed the acts he is charged with."

After closing arguments, the court instructed the jury that "[y]our verdict on each count . . . must be unanimous." It did not instruct the jury that it was required to agree unanimously on the act that was the basis for any count three conviction.

After deliberating for almost eight hours, the jury told the court it had reached verdicts on both counts one and two, but could not reach agreement on count three. The court ordered the jury to return the following Monday morning and try again. The jury did so and reached a verdict on count three after an hour and a half.

B. The Relevant Law

"In a criminal case, a criminal jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) " 'Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, . . . when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' " (People v. Fernandez (2013) 216 Cal.App.4th 540, 555.)

The court has a duty to give a unanimity instruction sua sponte when the prosecution does not make an election between acts that can be a basis for an offense (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534), such as by giving CALCRIM No. 3500. It states, "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."

C. Analysis

Defendant contends the trial court should have given a unanimity instruction sua sponte to the jury regarding count three after hearing the prosecutor's closing argument. The People contend the court had no such duty because the prosecutor elected to rely solely on the evidence that defendant touched Jane Doe 2's vagina. We agree with defendant. The prosecutor argued that the jury could convict defendant if it found that he, acting with the requisite sexual intent, lifted Jane Doe 2 onto the bed or touched Jane Doe 2's vagina. The prosecutor made no election between these two acts. Therefore, the trial court erred by not giving a unanimity instruction to the jury. (See People v. Melhado, supra, 60 Cal.App.4th at p. 1536 [court should have given a unanimity instruction when "the prosecutor did not directly inform the jurors of his election" of the action that indicated the defendant made a criminal threat].)

Nonetheless, this error was undoubtedly harmless for two reasons.⁹ First, when a court errs in failing to give a unanimity instruction, the error is "harmless '[w]here the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence . . . .' " (People v. Hernandez (2013) 217 Cal.App.4th 559, 577, quoting People v. Thompson (1995) 36 Cal.App.4th 843, 853, citing People v. Jones (1990) 51 Cal.3d 294, 307.)

9 Appellate courts are split regarding whether to evaluate a trial court's erroneous failure to give a unanimity instruction under the "reasonable probability" state standard (People v. Watson (1956) 46 Cal.2d 818) or the "beyond a reasonable doubt" federal standard (Chapman v. California (1967) 386 U.S. 18) to determine whether the error is prejudicial. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186.) We do not decide which standard applies here because the court's error was harmless under either standard.

For example, in People v. Wolfe, the appellate court concluded the court should have given a unanimity instruction for the charge that the defendant was in unlawful possession of a firearm with a qualifying misdemeanor when the evidence indicated he was in possession of up to eight separate firearms, each of which could have been the basis for a separate chargeable crime. (People v. Wolfe, supra, 114 Cal.App.4th at pp. 180, 186-187.) Nonetheless, the appellate court concluded this error was harmless in light of the defendant's "unitary defense with respect to all of the firearms—that they belonged to his mother, and he had no dominion or control over them," based on his mother's testimony. (Id. at p. 188.) Further, the defendant admitted to having some guns hidden in certain light fixtures and, once the jury rejected defendant's mother's testimony, none of them would have had a reason to doubt that he was at least in possession of these guns. (Ibid.)

Similarly, here, the defense made what essentially was a "unitary defense" argument. Defense counsel argued that Jane Doe 2 was generally mistaken in her account of what defendant did to her because of her pliable young mind and general inability to differentiate between truth and fantasy. He referred only once and in passing to the inconsistencies between her CALICO interview and later testimony regarding whether or not defendant touched her vagina, and followed this with a reminder that he was not attacking Jane Doe 2's credibility. The jury's verdict indicates it rejected this defense and ultimately found Jane Doe 2's testimony about what defendant did to her to be accurate.

Second, defense counsel all but conceded that defendant exposed his penis to Jane Doe 2. Also, he ignored altogether Jane Doe 2's consistent assertion, which she made in both her CALICO interview and trial testimony, that defendant put her onto the bed just before he exposed himself, i.e., that he did in fact touch her as the prosecution had emphasized.¹⁰ Further, the testimony of Garibay and Jane Doe 1 indicated that defendant called Jane Doe 1 into the bedroom and touched her, i.e., lifted her onto the bed, when he was in a sexually aroused state. Under these circumstances, no rational juror could conclude defendant touched Jane Doe 2's vagina without also concluding that he lifted her onto the bed with the requisite sexual intent. Therefore, the court's error in not giving the required unanimity instruction sua sponte regarding count three was undoubtedly harmless.

10 We see no reason to second-guess defense counsel's strategy in light of Jane Doe 2's consistency on the issue and the limited emphasis placed on this touching by the prosecution.

Based on our conclusions, we also reject defendant's contention that he received ineffective assistance of counsel regarding this issue.

IV.

Defendant's Count Three Conviction Was Not for an Uncharged Crime.

Defendant also argues we must reverse his count three conviction because it cannot be determined if he was convicted of the charged offense of lewdly touching Jane Doe 2's vagina or of the uncharged offense of lewdly lifting her onto the bed. We reject this argument because defendant was not tried for any uncharged crime.

A. The Relevant Evidence

At the preliminary hearing in the case, Detective Quinn testified that he witnessed the prosecutor interview Jane Doe 2, who "mentioned [defendant] had touched her vaginal area over her underwear" and touched her "toto," meaning "the area where she goes pee." He also witnessed Jane Doe 2's CALICO interview, and recalled that she had not said defendant touched her in any way.

At the conclusion of the preliminary hearing, the court found sufficient cause to believe defendant was guilty of violating section 288, subdivision (a) regarding Jane Doe 2 and ordered him held over to answer the charge. The People then filed an information, which, as later amended, included count three's allegation that defendant, in violation of section 288, subdivision (a), "did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of JANE DOE TWO, a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child."

B. Analysis

We reject defendant's claim that he was improperly convicted of an uncharged count three offense for three reasons. First, as the People contend, defendant has forfeited this claim by not objecting or seeking any relief, such as a trial continuance, on this ground below. (See People v. Toro (1989) 47 Cal.3d 966, 976 [when at trial an additional offense is added via amended information or verdict forms and jury instructions, "a failure to promptly object will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice' "], disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; People v. Seaton (2001) 26 Cal.4th 598, 640-641 (Seaton) [claim of constitutionally inadequate notice of the prosecution's theory forfeited because defendant did not at trial object on this ground or seek a continuance].) We apply this basic appellate rule of forfeiture here.

Second, even if we were to consider defendant's argument on its merits, his basic premise that he was convicted of an uncharged offense of which he had inadequate notice is incorrect.

"Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. . . . 'Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' " (Seaton, supra, 26 Cal.4th at pp. 640-641.)

Defendant was charged in count three with committing a lewd and lascivious act in violation of section 288, subdivision (a). "[A] violation of section 288 occurs whenever, to gratify the child's or the actor's sexual desires, an actor touches a child under 14." (People v. Memro (1995) 11 Cal.4th 786, 861, abrogated on other grounds as discussed in People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)

Defendant acknowledges the People properly charged him with count three based on Quinn's preliminary hearing testimony that Jane Doe 2 said defendant touched her vagina. He then goes a step too far. He in effect argues that Quinn's testimony limited the People at trial to a factual theory of his count three offense that went no further than what Quinn referred to in his preliminary hearing testimony. This is incorrect. The law recognizes that parties may receive notice of particulars of a crime after the preliminary hearing that allow their use at trial. For example, "[i]n addition to the advance notice provided by the information and preliminary examination, . . . defendant may learn further critical details of the People's case through demurrer to the complaint or pretrial discovery procedures." (People v. Jones (1990) 51 Cal.3d 294, 317, 318 [concluding that "given the availability of the preliminary hearing, demurrer and pretrial discovery procedures," a defendant's due process right to fair notice of the charges against him was not violated; italics added]; see also People v. Newlun (1991) 227 Cal.App.3d 1590, 1604-1605 [defendant's due process right to notice of the charges against him were not violated because, although a sexual assault victim did not disclose acts of sodomy at the preliminary hearing, a doctor's report that could have been obtained in pretrial discovery included evidence of them].)

Defendant also ignores Quinn's preliminary hearing testimony that Jane Doe 2 was interviewed at CALICO. This gave defendant notice of the potential evidence contained in Jane Doe 2's interview statements, which included that defendant put her onto the bed shortly before he showed her his "pee hole." Given that other preliminary hearing evidence indicated defendant lifted Jane Doe 2 onto the bed very shortly after he had engaged in sexual acts with his girlfriend and touched Jane Doe 1's vagina, defendant could hardly have been surprised when the prosecution argued this additional touching also could be a basis for a count three conviction (regardless of Quinn's mistaken preliminary hearing testimony that Jane Doe 2 did not say defendant touched her). Defendant's lack of notice argument is without merit.

Third, even if there were inadequate notice of the People's alternative "touching" theory here—which, again, we do not think was the case—defendant was not prejudiced by it under either the federal or state standard for evaluating error. He had ample notice of the evidentiary basis for the theory and an opportunity to respond to it in closing argument. He also does not effectively explain how he could have made a more persuasive rebuttal of this evidence with more notice of the theory. (See Seaton, 26 Cal.4th at p. 641 [defendant not prejudiced by any inadequate notice of the prosecution's theory in the absence of evidence he could have made a more persuasive rebuttal with earlier notice].)

In short, defendant's "uncharged offense" argument lacks merit and assuming there was error, it was not prejudicial. For these reasons, defendant's claim that he received ineffective assistance of counsel because of his counsel's failure to object to the prosecution's reliance on the evidence of his putting Jane Doe 2 onto the bed for his count three conviction also lacks merit. (See, e.g., People v. Newlun, supra, 227 Cal.App.3d at p. 1605 [no ineffective of counsel for failure to object to lack of notice because the objection would have been fruitless and the appellate record did not show counsel was necessarily ineffective].)

V.

The Trial Court Did Not Err When It Denied Defendant's Motion for a Trial

Continuance.

Defendant next argues we must reverse the judgment because the trial court prejudicially erred when it denied his motion for a two-and-a-half-week trial continuance. Defendant made this motion at the end of his presentation of evidence as a part of his efforts to obtain the testimony of Beatrice Martin, with whom the girls stayed before and after defendant and Garibay took the girls out in April 2010. The trial court did not err when it denied his motion.

A. The Proceedings Below

On November 13, 2012, after several trial delays, a defense investigator served a subpoena on Martin that required her to appear in court on December 5, 2012. Although the trial did not commence by that date, Martin failed to appear. Defense counsel asked the court to issue and hold a bench warrant until December 18, 2012, when Martin was scheduled to appear in another department regarding her own case. Defense counsel proposed that "we can make arrangements for her to be served before then with the bench warrant and brought over here, . . . at which time all of that happens, I would ask that the warrant be withdrawn, and she be ordered back at the appropriate date." The court granted defense counsel's request.

On December 18, 2012, Martin appeared before the trial court. As the defense requested, the court withdrew its bench warrant and ordered Martin to return on January 7, 2013. Martin failed to do so. The court tried to reach her at a phone number she provided, but the number was incorrect. The court then issued a bench warrant for her arrest.

On January 8, 2013, Jane Doe 2 testified. Asked, "After you were with Thumper and his girlfriend, who was the first person you ever told what had happened?," Jane Doe 2 identified Martin and, in response to further questioning, said she told Martin that same day. She had not indicated this before.

On January 10, 2013, after the defense presented its evidence, defense counsel moved to continue the trial until January 29, 2013, when Martin was scheduled to appear in her own case. Defense counsel submitted Hayward Police Department Officer Miller's written report of an interview with Miller as an offer of proof of Martin's expected testimony. Officer Miller recounted that on April 23, 2010, mother reported that Jane Doe 1 had been molested earlier that month while the girls were staying with Martin. Mother said Martin met with her earlier that day and "did not have any knowledge of the incident."

Miller's report further states that he learned Martin had recently been arrested for possession of methamphetamine for sale after a probation search was conducted of her residence. The next day, he interviewed her. She said when the girls were staying with her in early April, defendant and his girlfriend took the girls to McDonald's. When the girls returned, they told Martin that they went to the girlfriend's house, Thumper left and they made a cake with the girlfriend. When Thumper returned, they came back to Martin's house, acting normally. Martin gave the girls a bath the day they returned and noted that Jane Doe 1's underwear was clean. Martin did not notice anything unusual about the girls for the rest of their visit.

The trial court denied the defense motion for a trial continuance on three grounds. First, it found it was "not clear" that Martin, whose whereabouts were unknown, was going to appear in her own case on January 29, "[s]o there's no certainty that we're ever going to be able to secure . . . Martin's testimony in this trial." Second, even if Martin did appear on January 29, the jury might not be able to be present because the court gave them "an open and closed date." Third, the court thought Martin's testimony would not be "such that continuance of the trial to present it to the jury would be prejudicial to the defendant." At best, "there may be some inconsistent evidence—some evidence that may be inconsistent with the girls' report of what occurred that day." The court was "not prepared to find that the defendant is substantially prejudiced by her absence."

During its deliberations the jury requested a read-back of Jane Doe 2's trial testimony. Also, as we have discussed, the jury, after about a day's deliberation, told the court it had reached verdicts on both Jane Doe 1 counts but could not reach agreement on count three regarding Jane Doe 2. The court ordered the jury to return the following Monday morning and try again. The jury did so and reached a verdict on count three in about an hour and a half.

B. The Relevant Law

Trial continuances are governed by section 1050, which states that excessive continuances further congest the criminal courts, causing adverse consequences to the welfare of the people and defendants, as well as substantial hardships for victims and other witnesses. (§ 1050, subd. (a).) Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. (Ibid.) Thus, "it shall be the duty of all courts" to expedite criminal proceedings "to the greatest degree that is consistent with the ends of justice." (Ibid.) Accordingly, "[c]ontinuances shall be granted only upon a showing of good cause." (Id., subd. (e).)

"When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' " (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) " '[T]he trial judge . . . must consider not only the benefit which the moving party anticipates but also the likelihood that such a benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' " (People v. Zapien (1993) 4 Cal.4th 929, 972.)

We review a trial court's denial of a motion for continuance for abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.) We will find an abuse of discretion only when the trial court has acted in a manner that is arbitrary or that exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920, 921.) "The trial court has substantial discretion in ruling on midtrial motions to continue the case, and appellate challenges to a trial court's denial of such a motion are rarely successful." (Seaton, supra, 26 Cal.4th at p. 660.)

C. Analysis

The trial court did not abuse its discretion in denying defendant's motion, made at the end of defendant's presentation of evidence, for a nineteen-day continuance because of the possibility that he could obtain Martin's trial testimony if she appeared in her own case as scheduled. Martin had already failed to appear in court twice, once despite being served with a defense subpoena and once despite being brought to the court pursuant to a bench warrant that the court withdrew at defendant's request. She also gave the court an incorrect contact telephone number. From these facts, the court could reasonably infer that Martin would do everything she could to avoid providing testimony, even in the face of legal compulsion. And given Martin's apparent determination to do so, the court had no reason to be confident that she would appear at the courthouse on January 29, 2013, to attend proceedings in her other case, even if she had attended earlier proceedings in that case. The case was also near its conclusion, and the court's concern about juror availability nineteen days later and beyond was legitimate. Under these circumstances, the court did not abuse its discretion in denying defendant's motion.

We also conclude the trial court acted reasonably in denying defendant's motion for a trial continuance on the ground that defendant was not "substantially prejudiced" by the absence of Martin's testimony. Martin's interview with Officer Miller indicates her trial testimony would not have been of material help to the defense. Other evidence already indicated the girls acted unremarkably after their visit with defendant until Jane Doe 1 told her mother later that month that defendant inappropriately touched her. While, as defendant points out, Martin told Miller the girls said defendant had left his girlfriend's house during their stay there, there was overwhelming evidence to the contrary. Garibay and both girls testified he was present in the house, and the girls also indicated he was present at the house in their CALICO interviews. While defendant suggests it would have helped him if Martin testified that she checked Jane Doe 1's underwear after the girls' visit with defendant and it was clean, this was of little consequence when there was no evidence or prosecution contention that defendant physically injured Jane Doe 1 or caused her to lose control over her bodily functions.

Defendant also did not establish that the loss of Martin's potential testimony that Jane Doe 2 did not tell Martin "what had happened" on the day of the incident, contrary to Jane Doe 2's trial testimony, had any significance. Defendant points to the jury's relative difficulty deciding its verdict on count three and contends Martin's testimony could show that Jane Doe 2 "might be willing to fabricate a fresh complaint in order to convince people that she had been inappropriately touched." This contention is entirely speculative. There is no indication what Martin might have said about the issue in her testimony. Regardless, and most importantly, Jane Doe 2 never testified about what she told Martin; she only identified Martin when asked if she told anyone "what had happened." In light of this vaguest of testimony, any conflicting testimony by Martin would have been of virtually no aid to defendant if he had attempted to raise questions about Jane Doe 2's credibility.

For each and all of these reasons, the court could reasonably conclude it should deny defendant's motion for a trial continuance because no substantial prejudice to defendant would result from the absence of Martin's testimony. It did not err in denying the motion.¹¹

11 In light of our conclusion that the trial court did not commit any error, we have no need to address defendant's further contention that the trial court's error was prejudicial to his case.

Defendant also argues the trial court erred because it made no effort to execute the bench warrant that it issued for Martin on January 10, 2013, although it knew Martin's residential address and possibly could have determined her whereabouts from the information available in her pending case. This argument goes beyond the court's denial of his motion for a continuance. Defendant does not contend that he requested that the court execute the bench warrant or that the court was required to do so sua sponte. Therefore, we reject this argument as well. (People v. Homick (2012) 55 Cal.4th 816, 861 [" 'The burden is on the appellant in every case affirmatively to show error and to show further that the error is prejudicial"].)

VI.

The Trial Court Did Not Violate Defendant's Rights to Compulsory Process and a

Meaningful Defense.

Defendant also contends we must reverse the judgment because the trial court's failure to compel Martin's testimony violated his constitutional rights to compulsory process and to present a complete defense. We reject this argument as well.

The Due Process Clause of the Fourteenth Amendment guarantees the accused the "right to . . . a reasonable opportunity to meet the charges by way of defense . . . , representation by counsel, and an adequate opportunity to call witnesses." (Ungar v. Sarafite (1964) 376 U.S. 575, 589, fn. 9.) " 'Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense." ' " (Holmes v. South Carolina (2006) 547 U.S. 319, 324.)

The constitutional right to compulsory process is not "an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence," and does not "automatically and invariably outweigh countervailing public interests," including "the interest in the fair and efficient administration of justice." (Taylor v. Illinois (1988) 484 U.S. 400, 410, 414, 415.) A defendant claiming a denial of compulsory process "must at least make some plausible showing of how their testimony would have been both material and favorable to his defense." (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.) Further, the defendant must show an absence of fairness that fatally infected the trial, which requires that the lost testimony "would have been favorable and material." (Id. at p. 872.)

Defendant asserts the court violated these constitutional rights by its denial of his motion to continue the trial and by not executing the bench warrant for Martin. As we have already discussed, however, defendant did not present good cause for a continuance, nor has he established that the trial court was required to do anything other than issue the bench warrant, particularly in the absence of any defense request that it take further action. Therefore, we reject this claim as well.

For similar reasons, we reject defendant's related contention that he received ineffective assistance of counsel because his trial counsel did not request that Martin's out-of-court statements to Officer Miller be admitted into evidence to remedy the denial of his rights to compulsory process and in order to present a meaningful defense. Martin's statements to Miller were cumulative of other evidence or insignificant in face of this other evidence. Also, defendant's counsel could reasonably conclude Martin's arrest on drug charges would in any event render her credibility suspect. Defendant does not show his counsel's conduct was deficient or prejudiced him.

VII.

The Trial Court Did Not Err When It Instructed the Jury to Continue to Deliberate

Regarding Count Three.

Defendant next contends we must reverse his count three conviction because the trial court should have declared a hung jury regarding count three after the jury indicated it was deadlocked on that count, rather than instruct the jury to continue its deliberations. We conclude the court did not err.

A. The Relevant Proceedings

The jury began deliberating on the afternoon of January 10, 2013. The next afternoon, a Friday, it informed the court it had reached a verdict on count one and count two, but not on count three. Informed the jury had taken two ballots on count three, the court told jurors they had not deliberated long enough to declare an impasse and to return on Monday. The court suggested they change the way they were conversing and approaching the issue, and to think about how they could consider the information differently in order to reach a verdict. It stated, "Maybe just change the way you're having a conversation, that may help. I don't know if someone in particular is leading the discussion or maybe someone else if you can sort of combine your thoughts or consider the information differently. You might think about how to talk about it, not so much deliberate in your own mind without your fellow jurors, but think in your own mind how you might consider the information differently so that you may be able to reach a verdict. [¶] I'm just not at the point where I could conceivably declare an impasse with respect to that after having only taken two ballots. [¶] So think about it over the weekend." The court also reminded jurors that they could have read-backs of testimony and examine exhibits, asked them to consider whether additional argument might help, and said it was available to assist in any way.

The jury returned Monday morning and began deliberating at 9:16 a.m. It announced at 10:43 a.m. that it had reached a verdict on count three.

B. Relevant Law

Section 1140 provides: "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." (§ 1140.) "The determination, pursuant to section 1140, whether there is a ' "reasonable probability" ' of agreement, rests within the sound discretion of the trial court." (People v. Proctor (1992) 4 Cal.4th 499, 539, affd. sub nom. Tuilaepa v. Proctor (1994) 512 U.S. 967.) "Although the court must take care to exercise its power without coercing the jury into abdicating its independent judgment in favor of considerations of compromise and expediency [citation], the court may direct further deliberations upon its reasonable conclusion that such direction would be perceived ' "as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered." ' " (Ibid.)

"Any claim that the jury was pressured into reaching a verdict depends on the particular circumstances of each case." (People v. Pride (1992) 3 Cal.4th 195, 265.) A court merely commenting on such things as the relative shortness of time the jury spent deliberating does not mean it was pressuring the jury to reach a verdict. (People v. Harris (2005) 37 Cal.4th 310, 364-365.) Nor is it improper for the court to urge deadlocked jurors "to examine their opinions in light of other jurors' opinions and to understand each other's opinions." (People v. Lucas (2014) 60 Cal.4th 153, 328, disapproved in part on other grounds in People v. Romero (2015) 62 Cal.4th 1, 53, fn. 19.) As long as the trial court is not coercive, there is no bar against it inquiring into the possibility of agreement or directing further deliberations understood to be a means of enabling jurors to enhance their understanding of the case. (People v. Bell (2007) 40 Cal.4th 582, 616-617, disapproved in part on other grounds in People v. Sanchez (20160 63 Cal.4th 665, 686, fn. 13.)

C. Analysis

Defendant argues that "the [trial] court's directions to the jury to consider the case during the weekend sent a clear message to the jury—the court did not like how the jury was deliberating based on the verdicts and non-verdict and it would not accept verdicts on the Jane Doe 1 counts without a verdict on the Jane Doe 2 count. The court, in effect, ordered the jury to change how it was deliberating, even to the extent of suggesting that groups of jurors form to change the deliberations. This was unnecessarily coercive and interfered with the jury's deliberative process."¹²

12 Defendant also argues that the trial court knew the jury was deadlocked in part because it had been denied Martin's testimony. As we have already discussed, the court did not err regarding Martin and, therefore, we do not discuss this argument further.

Defendant's argument lacks merit. He contends the jury had deliberated for an unusually long time—seven hours and 43 minutes—when it informed the court of its deadlock, even though the evidence was minimal and the facts uncomplicated regarding count three. This argument ignores that this deliberation time was for all of the verdicts and findings it was to render. This was not a particularly long time in light of the testimony, evidence and argument that we have summarized, which was presented over six days. Also, two ballots on count three can hardly be said to establish that the jury would not be able to reach a verdict on that count.

Defendant also mischaracterizes the court's remarks to the jury, which were not at all coercive. The court justifiably concluded it was reasonably probable the jury could reach a verdict on count three if it deliberated further, and its comments merely encouraged the jurors to continue their efforts to do so. Further, the jurors knew they were to exercise their independent judgment and were not required to reach a verdict because they had been instructed before deliberations pursuant to CALCRIM No. 3550 that they should decide the case for themselves, not change their minds just because other jurors disagreed and try to agree on a verdict "if you can." (See People v. Santiago (2009) 178 Cal.App.4th 1471, 1475-1476 [CALCRIM No. 3550 was not coercive of a deadlocked jury].) Defendant's argument lacks merit.

VIII.

The Trial Court Did Not Err in Denying Defendant's Post-Conviction Motions.

Finally, defendant argues we should remand his case for new post-conviction proceedings because the trial court denied him his constitutional rights to competent counsel and to a meaningful opportunity to investigate and present, if appropriate, a motion for new trial based on ineffective assistance of trial counsel. We conclude the court did not err.

A. The Relevant Proceedings Below

1. Defendant's Marsden Motion During the Trial

On January 10, 2013, shortly before closing arguments, defendant moved under Marsden for new counsel. Defendant represented that he had made two Marsden motions before trial, and that his counsel had promised, but failed, to do several things in preparation for trial. Defendant was particularly unhappy that his counsel called only 2 of 15 witnesses defendant wanted to call to testify on his behalf, and did not call such witnesses as his mother, Martin, and Garibay's father to testify about the damage to his house from the police raid, and certain parole officers and police officers, including those who participated in the police raid. Defendant was upset that his trial counsel did not even obtain statements from these witnesses. He also was unhappy that his trial counsel had not subpoenaed Garibay's medical records to prove that a vaginal condition she had was not his fault. Defendant also complained that his trial counsel was hearing impaired and could not hear everything that was said during the trial.

Defendant's trial counsel responded that he spoke to and evaluated all of the potential defense witnesses he could contact and discussed them with defendant. In counsel's opinion, the civilian witnesses would have only been able to testify about the living conditions and lifestyle of Martin, mother and the girls, which were not relevant to the issues in the case. Counsel said that although this type of information was irrelevant, he nonetheless tried to introduce some during the trial, but the prosecutor's objections were sustained. Counsel thought information about Garibay's medical condition would have been useful only if the court allowed the prosecution to introduce evidence of the domestic violence between defendant and Garibay, but the court did not allow the prosecution to do so. He noted that some officers had testified already and, further, that in his professional judgment it was dangerous to put officers on the stand because they were not sympathetic witnesses for the defense and their testimony could be more damaging than useful. He thought Martin was an important witness and intended to seek a trial continuance to obtain her testimony. He interviewed defendant a number of times, examined all of the statements of the prosecution witnesses, tried to speak with the twins and their mother, who refused to talk to the defense, and subpoenaed various records on defendant's behalf. He acknowledged that he had some hearing problems, but said he had heard things well enough at trial. He also stated that he had been an attorney for over 35 years, and was a criminal law specialist.

The trial court denied defendant's Marsden motion because counsel had adequately prepared for trial, and disagreement over what witnesses to call did not constitute ineffective assistance of counsel because counsel had not in any way compromised the defense of the case.

2. Defendant's Post-Conviction Marsden Motion

On March 15, 2013, the day before sentencing was scheduled to take place, the trial court relieved defendant's trial counsel from representing defendant upon counsel's written request, based on a conflict of interest that he did not further explain in his written request or at the hearing about it. John Noonan became new counsel for defendant and the court continued sentencing multiple times so that Noonan could familiarize himself with the records in the case.

On November 7, 2013, defendant moved under Marsden to replace Noonan as counsel on the ground that Noonan had not reviewed the transcripts of the hearings for six of defendant's seven previous Marsden motions in the case. At the hearing on defendant's motion, the trial court asked defendant what he expected Noonan to do upon reading all of the transcripts. Defendant said he wanted Noonan to determine whether his rights were violated by going over "all my trial stuff and all the issues with my case." Defendant thought that the prior Marsden transcripts would show there was evidence—from the witnesses defendant had wanted to call that his trial counsel did not call—that would have changed the outcome of his case. He did not know if Noonan could use the information in the trial court or on appeal. He pointed out that his trial counsel had obtained trial continuances for over three years based on the need for the witnesses defendant thought should have been called, yet his trial counsel had not called them to testify. When the court said the hearing was about Noonan's performance as defense counsel and that defendant's complaints had to relate to what Noonan did or did not do, defendant said he wanted Noonan to review the transcripts from all the Marsden hearings before defendant was sentenced.

Noonan told the court that he understood from defendant there had been a Marsden motion made during trial. Noonan had reviewed the hearing transcript for "the one or two [motions] that you had here," but not "five other ones" defendant claimed "related to witnesses that [trial counsel] refused to present because they were druggies or not credible." Noonan also stated he did not review "the other six Marsdens. I can say that. I just misinterpreted. I didn't think there were seven." He reviewed the other case files the previous attorney made available to him, and all the trial transcripts. Also, he concluded from his review of the Marsden motion made during trial that there was not "any evidence that would have been forthcoming that would have changed the outcome of the trial" or helped defendant avoid the "eventual outcome of guilty."

The trial court stated it was "just trying to focus on Mr. Noonan, because what happened before Mr. Noonan came into the case isn't relevant." It thought defendant was raising appeal issues about his former court-appointed trial counsel and that providing him with another attorney at this stage was "not going to make a difference about the outcome of the trial." The court said, "It's not going to affect one thing that happened during that trial. Nothing else can happen before you file an appeal after you are sentenced." Given that defendant's concerns were focused on the previous counsel's performance rather than Noonan's, the court did not think defendant met the criteria for granting a Marsden motion and denied defendant's motion.

At defendant's request, Noonan then moved for another continuance of sentencing so that he could review all of defendant's Marsden motions. The court referred to the delay in sentencing that had already occurred and, when defendant indicated he wanted his lawyer to review his previous motions, said, "There's nothing [Noonan] can do for you, other than sit with you at your sentencing. There's not a motion he can make. There's nothing else, other than a continuance, which I am denying because it's really time for the sentencing in this case." The court denied the motion for a continuance.

B. Analysis

Defendant vigorously explains his constitutional rights to effective assistance of counsel, including to counsel that will investigate and present, if appropriate, a motion for new trial based on ineffective assistance of trial counsel. He emphasizes that our Supreme Court has held that a trial court may order a new trial based on ineffective assistance of counsel, citing People v. Fosselman (1983) 33 Cal.3d 572, 582-584 and its progeny. While his legal contentions are not incorrect, he ignores the constitutionally sufficient procedures employed by our trial courts to determine Marsden motions and motions to continue trial court proceedings, and the standards of review we must apply to these rulings. Upon our review of them, we conclude the trial court did not err in denying defendant's motions or violate any of his constitutional rights.

1. Defendant's Post-Conviction Marsden Motion

Defendant's contention that the trial court somehow violated his constitutional rights by rejecting his Marsden motion is based on nothing more than speculation, and does not establish that the trial court abused its discretion in doing so.

"[I]n ruling on a postconviction Marsden motion, the trial court must apply the same standard it would apply in ruling on a preconviction Marsden motion: substitute counsel should be appointed when 'in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that . . . the defendant and the attorney have become embroiled in an irreconcilable conflict that ineffective assistance of counsel is likely to result.' " (People v. Johnson (2009) 47 Cal.4th 668, 673, fn. 2.)

"A trial court should grant a . . . Marsden motion only when the defendant has made 'a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.' " (People v. Hines (1997) 15 Cal.4th 997, 1025.) A court must " 'listen to and evaluate a defendant's claim that counsel [is] failing to perform adequately' " (People v. Clark (2011) 52 Cal.4th 856, 918), but "to the extent there was a credibility question between defendant and counsel at the hearing, the court [is] 'entitled to accept counsel's explanation.' " (People v. Smith (1993) 6 Cal.4th 684, 696.) Denial of such a Marsden motion is reviewed for abuse of discretion, i.e., whether or not "defendant has shown that a failure to replace [counsel] would substantially impair the right to assistance of counsel." (Smith, at p. 696.)

Defendant did not below and does not on appeal even attempt to explain how Noonan's review of defendant's pre-trial Marsden motions would have mattered. More to the point, as our discussion indicates, the concerns that defendant expressed below in his Marsden motion regarding Noonan focused on the same concerns he raised in his Marsden motion during trial, which his trial counsel effectively countered. Also, Noonan did review that motion. Defendant did not argue below and does not argue on appeal that Noonan's review or evaluation of this motion was somehow insufficient or incorrect, and we conclude it was not. (See People v. Welch (1999) 20 Cal.4th 701, 728-729 [a defendant does not have a right to a defense of his own choosing, and his or her tactical disagreements with his attorney "do not by themselves constitute an 'irreconcilable conflict' "].) Therefore, we reject defendant's argument that the trial court denied any of his constitutional rights by its denial of his Marsden motion.

2. Defendant's Motion to Continue Sentencing Proceedings

Similarly, defendant offers nothing but speculation to show the trial court erred in denying his motion to continue sentencing proceedings. As we have discussed, trial continuances are governed by section 1050, and should only be granted upon a showing of good cause. (§ 1050, subd. (e).) We review a trial court's denial of a motion for continuance for abuse of discretion. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.) We will find an abuse of discretion only when the trial court has acted in a manner that is arbitrary or that exceeds the bounds of reason. (People v. Beames, supra, 40 Cal.4th at pp. 920, 921.) We reject defendant's challenge to the court's denial of his motion for a continuance for the same reasons we reject his challenge to its denial of his Marsden motion.

DISPOSITION

The judgment is affirmed.

/s/_________

STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.