Filed 9/11/13 P. v. Crawford CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. OTIS MIGUEL CRAWFORD, Defendant and Appellant. A134564
(Alameda County Super. Ct. No. 165116)

Defendant was convicted of second degree robbery after he shot an ice cream
vendor. The victim testified a man identified by others as defendant pointed a revolver at him, threatened him, and pulled the trigger, but the gun did not fire. When the victim then struggled with defendant over control of the gun, defendant fired two shots, the
second of which struck the vict im. Defendant contends the tr ial court erred in not giving a unanimity instruction with respect to the personal discharge of a firearm enhancement, failed to respond to a jury not e, and improperl y refused to appoint substitute counsel. He also contends his admission of his prio r convictions was i nvalid. We affirm.
I. BACKGROUND Defendant was charged in an inform ation, filed December 16, 2010, with attempted second degree robbery (Pen. Code, 1 § 211) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). As to th e attempted robbery charge, it was alleged defendant personally discharged a firearm, causing great bodily injury (§§ 12022.5,

1 All statutory references are to the Penal Code.2 subd. (a), 12022.7, subd. (a), 12022.53, subds. (b), (c), (d), (g)), personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)), and committed the offense while on parole (§ 1203 .085, subd. (b)). Defendant was also alleged to have a prior strike and serious felony conviction (§§ 667, subds. (a)(1), (e)(1 ), 1170.12, subd. (c)(1)) and four other felony convictions for which he served prison terms (§ 667.5, subd. (b)).
The victim testified he was selling ice cream from a pushcart around noon on the day of the attempted robbery. Three people, one later identified by other witnesses as defendant, walked up to the cart. Defendant said he wa nted to buy ice cream. The two
others moved to surround the victim. Afte r the victim gave defendant ice cream,
defendant took a revolv er from his pocket, pointed it at the victim’s face, and said, “You know what? I’m going to kill you.” When the victim aske d why, defendant pulled the trigger of the revolver, but the weapon did not fire. The victim then grabbed the wrist of th e hand holding the gun. As the pair struggled, the gun fired, this time sending a bu llet through the brim of the victim’s cap. Defendant pushed the victim against the cart, causing him to fall to the ground. As the victim tried to pull himself up, defendant moved behind him and shot him in the
shoulder. When the victim slumped to the ground, defendant pushed him over and searched his pockets be fore walking off.
The victim’s statement to the police, dictated during hi s stay in the hospital after the shooting, differed somewhat from his te stimony at trial. The statement made no reference to an initial trigger pull that did not result in the gun firing. Instead, the victim said he “grabbed the gun and struggled with the male suspect. All of sudden [ sic ] I heard two shots, and then a sharp pain near my ne ck. I then fell to th e ground knowing I was
shot.” Although the victim was unable to identify the shooter, a pair of witnesses saw the shooting from a distance, iden tified defendant as the shooter, and followed him and the two others as they went into a nearby park restroom. When the three emerged, defendant began playing basketball on a ne arby court. He was arrested there. Police found a3 revolver in a trash can near the restroom. The cylinder of the revolver contained one empty chamber, two expended bullet cart ridges, and two live cartridges. The jury convicted defendant on both coun ts and found the allegations to be true. The trial court imposed a sentence of 34 years to life in prison.
II. DISCUSSION
Defendant contends the tria l court erred in not giving a unanimity instruction with respect to the section 12022. 53 enhancement allegation, failed to respond to a jury request, and improperly refused to appoint su bstitute counsel. He also contends his admission was insufficient to support the tria l court’s finding he suffered the prior convictions alleged in the information.
A. Unanimity Instruction Defendant argues the jury could have c oncluded the section 12022.53 allegation, requiring an intentional discharge of a fire arm, was supported either by the initial triggerpull, which defendant incorrectly characterizes as a “misfire,” or the subsequent shot that
sent a bullet into the victim’s shoulder. 2 He contends the jury was required to agree on which of these alternatives was the factual pr edicate for its finding the allegation true and
seeks reversal because the trial court fa iled to give a unanimity instruction. “In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously th e defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that 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 th e same criminal act. [Citati ons.] [¶] This requirement of

2 Contrary to defendant’s contention, the initial trigger pul l would not have supported an enhancement under section 1202 2.53, subdivision (d), which requires the intentional “discharge” of a firearm. While a firearm need not emit a bullet in order to have been “discharged,” some type of i gnition must occur in the firing chamber. ( People v. Grandy (2006) 144 Cal.App.4th 33, 42–43.) A me re trigger pull is analogous to the display of an unloaded or inoperable firear m, which qualifies only as the “use” of a firearm under section 12022.53, subdivision (b). ( Grandy , at p. 42.) Although we do not accept the premise asserted by defendant for his argument, we nonetheless consider it because there is no question more than on e “discharge” of the revolver occurred.4 unanimity as to the criminal act ‘is intended to eliminate th e danger that the defendant will be convicted even though there is no single offense wh ich all the jurors agree the defendant committed.’ ” ( People v. Russo (2001) 25 Cal.4th 1124, 1132 ( Russo ).) While the jury must agree on which crime defenda nt committed, there is no similar rule regarding the manner in which the crime was committed. “[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that
crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the ca ses often put it, the ‘theory’ whereby the defendant is guilty.” ( Ibid. ) No unanimity instruction was required here because there was no evidence of
more than one criminal event. As noted above, the constitutional requirement of unanimity applies when “the evidence at tr ial indicates that the defendant committed more than one ‘ “discrete criminal event.” ’ ” ( People v. Quiroz (2013) 215 Cal.App.4th 65, 73.) “Where the evidence suggests that the defend ant might have committed more than one crime, the court must inst ruct the jury that it must agree on which of the acts— and, hence, which of the crimes —the defendant committed.” ( Ibid. ) In contrast, a unanimity instruction is not required “ ‘when the acts alleged are so closely connected as to form part of one transaction.’ ” ( People v. Benavides (2005) 35 Cal.4th 69, 98.) Here, only one discrete criminal event was alleged and proven: defendant’s attempt to rob the
ice cream vendor. All of the events about wh ich evidence was presented at trial occurred
within seconds of each other in a single, uninterrupted flow as part of that attempt. In particular, each trigger pull by defendant occurred in the cour se of this single criminal
“transaction.” Because there was evidence of only one possibl e crime, the trial court was under no duty to in struct on unanimity. In truth, defendant’s argum ent is not premised on the existence of more than one
criminal event but on the existence of more than one act to su pport the sentencing enhancement alleged in connection with this single crime. We are unaware of any case holding that unanimity is required with re spect to the facts underlying an individual sentencing enhancement allegation, and defe ndant makes no argument for the imposition5 of such an unprecedented requirement. On the contrary, the facts underlying a sentencing enhancement allegation are, at bottom, the elements of “exactly how th[e] crime was committed,” an issue on which th e jury need not agree. ( Russo, supra, 25 Cal.4th at p. 1132.)
B. The Jury’s Note
In the course of its deliberations on the morning of October 5, 2011, the jury sent a note seeking clarification of the defi nition of “discharge” for purposes of section 12022.53. Citing the absence in the appellate record of any indication the trial
court notified defense counsel of this note or responded to it, defendant argues the trial court failed in its “ ‘mandatory duty’ ” to respond to ju ry inquiries. ( People v. Beardslee (1991) 53 Cal.3d 68, 96–97.) Just as defendant argues, the appellate reco rd is silent about the fate of the jury’s
note. The trial court’s minutes reflect the jury’s sending of the note, but there is no
indication in the minutes how or whether the note was addressed by the court and counsel. Further, there is no reporter’s transc ript in the record of the proceedings on the morning of October 5, despite the jury’s deliberations that morning. The transcript for that day does not commence until shortly afte r noon with the announ cement the jury had
reached a verdict. Error by the court in the execution of its duties must be proven affirmatively in the record. ( People v. Sullivan (2007) 151 Cal.App.4th 524, 548.) “[T]he defendant . . . bears the burden to provide a record on appeal which affirm atively shows that there was an error below, and any uncertain ty in the record must be reso lved against th e defendant.” ( Id. at p. 549.) Mere silence by the record is not, in these circumst ances, sufficient to support an affirmative conclusi on the trial court failed to res pond to the jury’s notes. Particularly because the minutes are inconsis tent in their treatment of earlier jury communications for which a transcript is av ailable, the absence of a notation in the minutes that the trial court responded to th is note does not permit an inference nothing was done. To conclude affirmatively that no action was taken on the note would require a reporter’s transcription of th e events in court that mornin g, showing receipt of the note6 and a subsequent absence of action. As noted above, there is no transcript in the record. In its absence, we must presume the trial court properly performed its duties. 3 ( Sullivan , at p. 549.)
We note defendant’s counsel states in his reply brief that he “anticipates the filing of a settled statement indicating that in un reported proceedings th e court and counsel discussed the question but that the jury r eached a verdict before a response to the question was provided.” Counsel does not ap pear to have filed the promised settled statement, and we cannot rely on his representation to reso lve this issue. We note, however, that his representati on highlights the risk of pres uming nonaction solely on the
basis of a silent record.
C. Marsden Issues
Defendant contends the tria l court erred in failing to gr ant two requests to replace his court-appointed atto rney. (See generally People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ).) The first challenged Marsden request was addressed in a he aring on July 7, 2011. Defendant told the court, “[T]he more I tr y, the harder it is to communicate” with counsel. Although counsel had, most rece ntly, met with defendant for two hours, he believed she adopted a “sassy at titude” whenever he attempted to bring up issues of law. An argument developed, during which they “cuss[ed]” at each other, which resulted in defendant telling counsel to “leave.” In pa rticular, defendant was frustrated because counsel repeatedly asked him to “waive time” to accommodate conflicts in her professional schedule. In addition, he was concerned counsel had failed to confer with him regarding the prepara tion of his defense. Counsel told the court she had over 30 year s of experience as a criminal defense attorney. She explained she had twice aske d defendant to agree to a waiver of time

3 Because the court reporter apparently was not asked to record the events surrounding the trial court’s handling of the ju ry note, it would have been better practice for the court to make an oral record of the jury’s question, any objections, and the ultimate answer or the reason for any failure to answer when transcription resumed.7 because she had jury duty and was required to re present another client in trial. Counsel believed she had diligently pursued defend ant’s defense, evaluating discovery and conferring with the prosecution. She ac knowledged she had disagreed with defendant about certain legal issues and defendant had resisted her advice to accept the prosecution’s plea offer. Despite those differe nces, counsel believed “it’s not going to be a wonderful relationship, but I th ink we can get along nice.” The trial court denied the request, finding counsel more credible in describing the relationship. The court initially told defend ant he was lucky because his attorney was a very experienced defense lawyer with a “gre at reputation in the legal community.” The court noted it had granted an earlier Marsden request by defendant because his relationship with that attorn ey “had totally broken down,” but the court said it did not “see a problem here.” Although the court re cognized counsel might have “raise[d] her voice” in speaking with defendan t, it concluded that alone was insufficient to justify counsel’s replacement. The second hearing occurre d near the close of defendant’s case at trial, on October 3, 2011. Defense counsel had told the court she and defendant were “debating whether he wants to testify or not.” After discussion of the admissi bility of defendant’s prior convictions should he testify, counsel sa id defendant “is now asking to address the Court without [the prosecutor] in the audience .” The court asked whether “it deals with your relationship between you and your attorn ey,” defendant responded affirmatively, and the court excused the prosecutor. Defend ant opened the closed hearing by telling the court counsel continued to act unprofessiona lly. The immediate impetus for the hearing was counsel’s snatching a pen from defendant’s hand and calling him an “idiot,” at least according to defendant’s account of the events . Defendant was concerned that defense counsel continued to get angry and use foul langua ge, and he was upset that she refused
to conduct the defense in the manner he preferred. He said she had threatened she would give him a “lackluster defense.”8 Counsel acknowledged becoming “frustrated” with defendant, but she denied ever saying she would provide a lackluster defense. Counsel explained that defendant “wants
to run the defense” and “te ll me what to do.” The trial court told defendant it believed, based on its observations during trial, counsel had “done everything that an attorn ey can do considering the kind of evidence that the prosecution has in your case.” Th e court explained to defendant the various
tactical issues involved in his case and defense counsel’ s resolution of those issues, focusing in particular on defendant’s desire to testify in his own defe nse. It was only at
the conclusion of the court’s discussion that it remarked, “It sounds like you’re making a
Marsden motion. I’m going to deny your motion.” Defendant then told the court he would “withdraw taking the stand.” When open court resumed, the parties rested.
“ ‘When a defendant seeks substitutio n of appointed counsel pursuant to [ Marsden ], “the trial court must permit the de fendant to explain the basis of his contention and to relate speci fic instances of inadequate performance. A defendant is
entitled to relief if the record clearly shows th at the appointed counsel is not providing adequate representation or that defendant and counsel have become em broiled in such an irreconcilable conflict that ineffective representa tion is likely to result.” ’ [Citation.] ‘A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substituti on is likely to result in constitutionally inadequate representation.” ’ [Citation.] [¶] ‘We revi ew the denial of a
Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of
discretion “unless the defenda nt has shown that a failure to replace counsel would substantially impair the de fendant’s right to assistance of counsel.” ’ ” ( People v.
Streeter (2012) 54 Cal.4th 205, 230.) Defendant contends the July 7 Marsden request was improperly denied because in doing so the trial court “relied in larg e measure on its knowledge of counsel’s reputation.” We find no support in the record for the premise of defe ndant’s claim. As discussed above, the tr ial court rejected the Marsden request because, after hearing from both defendant and counsel, it concluded th e disagreements between them had not9 reached a level of hostility that would impair counsel’s representation. In doing so, the court cited the proper legal standard, wh ich it had applied in granting an earlier Marsden request by defendant, and expressly noted that relations between defendant and his attorney had not reached a sufficient level of discord to justify substitution. Although the court mentioned counsel’s experience and reputa tion, these were cited not as a reason for denying the Marsden request but rather as an a ttempt to mollify defendant’s
dissatisfaction with counsel. In arguing error, defendant relies on People v. Hill (1983) 148 Cal.App.3d 744, in which the trial court summarily denied a Marsden request on the basis of off-the-record discussions with the defense attorney, prior a ttorneys for defendant, and the director of the private defender program. The court sa id it was denying the request because it had
“confidence” in defense counsel and believed no attorney w ould give defendant different advice on the issues in dispute. ( Hill , at p. 750.) The Court of Appeal found error because the trial court improperly relied on its prior experience with the attorney rather than inquiring from counsel in the hearing ab out the various issues raised by defendant in seeking new counsel. ( Id. at pp. 753–755.) The situation here was quite different. Most important, the trial court did not deny the motion summarily, on the basis of its pr ior experience. Instead, the court gave defendant a full opportunity to express his c oncerns, asked defense counsel to respond,
and denied the motion on the basis of its conclusions about the relationship between defendant and counsel, based on the evidence presented during the Marsden hearing. As noted, its comments about counsel’s reputation we re not made to justify its ruling on the
Marsden request but in an effort to reconc ile defendant with his attorney.
Defendant contends the tria l court erred in handling th e October 3 hearing because it failed to inquire adequately into his relations with counsel . We find no violation of
Marsden for two reasons. First, there is no i ndication defendant had made a formal request to replace counsel, thereby triggering the Marsden requirements. A trial court’s
duties under Marsden do not accrue unless “there is ‘a t least some clear indication by defendant,’ either personally or through his current counsel, that defendant ‘wants a10 substitute attorney.’ ” ( People v. Sanchez (2011) 53 Cal.4th 80, 90 ( Sanchez ).) In Sanchez, the Supreme Court disapproved earlier cases holding that Marsden duties can be triggered by “something less than a clear i ndication” that the defendant wanted a new attorney. 4 ( Sanchez , at p. 90, fn. 3.) The October 3 hearing occurred as a resu lt of defendant’s displeasure when his attorney took a pen from his hand. Despite his evident dissatisfa ction with counsel, defendant did not mention repl acing her. That issue was not raised until the end of the hearing, and it was raised by the court rather than by defendant or his attorney. Further, there would have been little point in requesting new counsel at that stage of the trial, at
the close of evidence. Because there is no cl ear indication in the record defendant wanted a new attorney, the trial court was under no duty to conduct a Marsden inquiry.
Even if the Marsden duties had accrued, we woul d find the court’s conduct adequate. The trial court gave defendant an opportunity to air his grievances, asked defense counsel to respond, and evaluated the information provided. Defendant’s claims of conflict were well explored. While it was clear the tension of th e trial had strained relations between defendant and counsel, a la ck of trust or difficulty in getting along do not alone justify appointing substitute counsel. ( People v. Jackson (2009) 45 Cal.4th 662, 688.) Because there is no indication in th e record either of inadequate representation
or “ ‘ “such an irreconcilable conflict that inef fective representation is likely to result,” ’ ” ( People v. Streeter, supra, 54 Cal.4th at p. 230), we find no abuse of discretion.
D. Defendant’s Prior Convictions
Defendant contends his admission of hi s prior felony convictions was not knowing and voluntary and he did not admit all the el ements of a prior pris on term enhancement. The information alleged defendant had b een convicted of second degree robbery on June 14, 2007, which qualified as a se rious felony conviction and a prior strike

4 One of the cases expressly disapproved by Sanchez , People v. Eastman (2007) 146 Cal.App.4th 688, is cited as authority in defendant’s opening brief without acknowledgement of its disapproved status.11 conviction. In addition, it alleged defendan t had four prior prison term convictions for second degree burglary, all on July 21, 2008. At a hearing a week before trial, prior to addressing motions in limine, the court discussed the alleged prior convictions. The court noted defendant had been “convicted of a robbery in 2007” and explained the convic tion’s potential effect on his sentence. In the course of the discussion, defendant acknowledged having read section 213, subdivision (b), the statute governing robbery sentencing, causing the court to respond, “You’ve been doing your homework, then.” Th e court then noted “they say there’s four prior convictions for second-degree burglary, and in each of those it says you went to prison” and explained “that c ould add possibly one more year to your sentence.” In concluding, the court reviewed the possibl e sentences defendant could receive in
connection with each count and enhancement allegation. During subsequent argument of a motion in limine, the prosecutor asked that evidence of the prior felony convictions be admitted to prove the felon-in-possession count. Defendant thereafter admitted “the pr ior convictions” solely for “the purpose of sanitizing [section] 12021.” He declined to admit the convictions “for all purposes,” deferring a decision whether to admit any or a ll of the prior convictions for purposes of the sentencing enha ncements. During jury deliberations, the court ra ised the issue of trial on the prior convictions. Defendant waived jury trial on the convictions, but he declined to decide
whether he would admit them. After notification the jury had reached a ve rdict, the court attempted to schedule a trial on defendant’s prior convictions. During a discussion of dates, defense counsel told
the court defendant would admit the convicti ons. Without reviewing the specific details of the alleged prior convictions, the court expl ained to defendant, “The court trial will be where [the prosecutor] proves—tries to prove beyond a reasonable doubt whether or not you are the person who suffered the prior fo r robbery, and there’s four second-degree burglaries that you went to prison on. He ’s provided me with some documents.”12 Defendant agreed to admit the prior convictions , saying, “I just don’t see how I can beat a rap sheet.” The court then found a knowing and voluntary waiver of his trial right. The court ultimately imposed a sentence enhancement on the basis of the prior strike/serious felony conviction, but it stay ed sentence on the felon-in-possession count
and declined to increase defe ndant’s sentence on the basis of the prior prison terms. Disregarding the events at the pretrial hearing, defenda nt argues he could not have given an informed waiver of his right to trial on the prior robbery conviction because
neither the court nor counsel id entified the date or court of the conviction, nor did they inform defendant that he was admitting a strike and serious felony conviction. In fact, at the pretrial hearing the court did review with defendant the year, if not the specific date, of the robbery conviction and explained to defendant the impact on sentencing of the conviction, using both terms “strike” and “s erious felony.” Because we evaluate the
informed nature of a defendant ’s waiver on the basis of th e entire record, taking into consideration defendant’s prior experien ce with the criminal justice system ( People v. Mosby (2004) 33 Cal.4th 353, 365), the discussions from the earlier hearing can be
considered to demonstrate defendant was awar e of the nature and implications of his admission. Although, as defendant notes, the court did not specify th e exact date or court of the conviction, no case holds this level of detail to be necessary. There is no reason to
believe defendant would have admitted having been convicted of robbery in 2007 if, in fact, he was not convicted of robbery in that year. With respect to the prior prison te rms allegations, defendant contends his
admission was invalid because the court did not specifically describe the convictions and did not ask him to admit the remaining el ements of a section 667.5 sentencing enhancement—serving and completing separate pr ison terms less than five years earlier. (See People v. Tenner (1993) 6 Cal.4th 559, 563.) The validity of the prior pr ison term admissions is, as a practical matter, moot
because the trial court declin ed to impose a sentence enha ncement on the basis of the prior terms. Because the trial court t ook no action on the basis of defendant’s13 admissions, there is no practical relief we coul d grant if we found them inadequate. ( Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.) Even if the issue were not moot, we wo uld find the prison term admissions valid and adequate to support imposition of the enhanc ement. The court referred at the pretrial hearing to “four prior convictions for seco nd-degree burglary” fo r each of which “you went to prison.” Although the court did no t mention the date of these convictions, the specificity of four second degree burglary co nvictions was sufficient to identify them for
defendant. His admission of the fact of th e convictions and their associate prison terms
also constituted an admission of their date of commission, which was pleaded in the information. (See People v. Ebner (1966) 64 Cal.2d 297, 303.) The trial court was
entitled to infer from these admissions th e remaining elements of section 667.5, subdivision (b), that defendant had completed the terms and that they were completed less than five years earlier. Because the co nvictions dated from 2008, they necessarily were completed less than five years before the 2010 occurrence of the crime. (See People v. Tenner, supra , 6 Cal.4th at pp. 565–566.)
III. DISPOSITION The judgment of the trial court is affirmed.

_ ____________ ____________ Margulies, Acting P.J.

We concur:

_____________ ____________ Dondero, J.

_____________ ____________ Banke, J.