Filed 5/21/15 P. v. Montes CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
ERICK MONTES,
Defendant and Appellant. B254824
(Los Angeles County Super. Ct. No. BA358831)

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gera ld A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Atto rney General, and Michael C. Keller and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant Erick Montes appe als from the judgment entered after his conviction by jury of attempted premeditated murder, assau lt with a semiautomatic firearm, shooting at an occupied motor vehicle, and possession of a firearm by a felon. Defendant contends that all of his convictions must be reversed because the trial court did not conduct an appropriate inquiry into his posttrial claim of ineffective assistance of counsel, failed to ensure that he knowingly a nd intelligently waived his righ t to counsel, and improperly admitted evidence of an unre lated murder, ongoing wiretaps against members of his gang, his arrest during a “sweep” of the gang , and a “rap poem” he authored. Defendant further contends that the prosecutor imprope rly referenced unrelated gang murders during closing arguments. He also specifically a ttacks the assault convic tion, arguing that the court improperly instructed the jury as to the required mens rea and that he lacked mens rea in any event because he was not aware of the assault victim’s presence. We affirm. FACTUAL AND PROC EDURAL SUMMARY I. Procedural Background On December 23, 2009, de fendant was charged with attempted premeditated murder (Pen. Code §§ 187, subd. (a), 664 (count 1)), 1 assault with a semiautomatic firearm (§ 245, subd. (b) (count 2)), shooting at an occupied motor vehicle (§ 246 (count 3)), and possession of a firearm by a felon (§ 12021, subd. (a)(1) (count 4)). The information specially alleged a ll of the offenses were committ ed for the benefit of, at the direction of, and in association with a crim inal street gang (§ 186, subds. (b)(1)(A), (b)(1)(C) & (b)(4)), that count 1 was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)) that a principal personally an d intentionally discharged a firearm, causing great bodily injury, and that defendant personally inflicted great bodily injury in counts 1 and 3 (§§ 12022.53, subds . (b), (c), (d), (e) & (e )(1), 12022.7, subd. (a)), and that defendant personally used a fir earm in connection with count 2 (§ 12022.5, subd. (a)). The information furt her alleged that defendant su ffered convictions of a prior

1 All further statutory references are to the Penal Code unless otherwise indicated.3 serious or violent felony (§§ 667, subds. (b)-(i ), 1170.12) and a serious felony (the same one) (§ 667, subd. (a)). 2 Defendant proceeded to jury trial in July 2011. The court declared a mistrial after the jury reported a de adlock of 11-1. The People elected to retry defendant, and a second trial commenced in July 2012. The jury found defe ndant guilty as charged and found true all of the special allegations, including the allegation on count 2 that defendant personally used a firearm during the commission of the assa ult. Defendant waived his right to jury trial on the prior convictions a nd subsequently admitted them. Defendant’s trial counsel moved for ne w trial and contemporaneously informed the court that defendant wanted to expand the motion to allege that trial counsel committed prejudicial errors durin g jury selection. Trial counsel explained, “If that were the case, I would have to conflic t as to that and have another attorney appointed to review the voir dire and see what’s appropriate.” He further noted that “Mr. Montes also indicated . . . that he was thinking of pr oceeding in pro per.” The trial court asked defendant to clarify his wishes, a nd the following exchange ensued: “The Defendant: I want to pu t in this motion for retrial. And if the court - - if it does not get granted, I would like to go pro per. “The Court: You want to make a motion - - do you want me to hear Mr. Lindars [defendant’s counsel] motion or you want to withdraw it and represent yourself and file some other motion? “The Defendant: I want to do both, really, if that’s po ssible. [¶] I don’t know much about the law. “The Court: That’s my point. That’s exactly my point. I can tell you Mr. Lindars does. I’ve known him for years. He’s been doing this a long time. And Mr. Dickman [the prosecutor] does. “The Defendant: But my rights we re violated through this case.

2 The information alleged that defendant suffered a prison prior (§ 667.5, subd. (b)), but the trial court ordered the allegati on stricken on the People’s motion.4 “Mr. Lindars: I think what he wants to do, your honor, is proceed on this issue and the issue pertaining to the jury selection. [¶] Is that right? “The Defendant: Yes. “The Court: I think rather than have th em do it piecemeal, I guess I’d want to hear from Mr. Dickman. [¶] Generally, all the mo tions, all the grounds, would be raised in one motion. [¶] I’m assuming that Mr. Lindar s didn’t see a ground for raising this issue about jury selection. The defense exhausted their peremptories. [¶] But if he’s now trying to raise some kind of I.A.C. [ineffective assistance of counsel] claim, I agree that Mr. Lindars can’t do that . . . . “[¶] . . . [¶] “The Court: Maybe - - I’m just thinking out loud - - maybe the th ing to do is have Mr. Montes go through the Faretta form. If I then grant his Faretta motion, he can then file whatever motion he wants to file and he ca n incorporate this and add to it, if he wants to, and then you’ll have your statut ory time to respond to everything. “Mr. Lindars: I think his preference is th at he have counsel to proceed on the jury voir dire issue as opposed to doi ng it himself. [¶] Is that right? “The Defendant: I don’t know much about the law. “The Court: I know you don’t. [¶] I’m going to have to research this, Mr. Lindars. [¶] I don’t think the court has an ob ligation to appoint - - just because he’s now dissatisfied with the way you handled the jury selection, I don’t think he’s entitled to have a different appointed lawyer. [¶] He would be permitted on appeal to have an appointed lawyer who can raise any I.A.C. claims he or she believes are in the record. I don’t believe he has a right to just fire his court-appointed lawyer and get a new and different court-appointed lawyer to raise I.A.C. at this level. [¶] I would have to research that, but I do not think he’s entitled to that. In every sing le case, we’d be appointing a new lawyer to read boxes of records just be cause the defendant has been convicted. Now I think my lawyer didn’t ha ndle some issue correctly.” The court put the matter over. At the next hearing, on February 1, 2013, the court noted that the prosecution recently had provi ded trial counsel with approximately 12005 pages of potential Brady 3 material. Trial counsel told th e court, “I discussed that with Mr. Montes. He wishes to proceed in pr o per.” Defendant submitted a completed
Faretta 4 waiver form and the court orally questi oned him, asking him whether he realized he was “going to be up against a very experienced district attorn ey on the other side,” that he was “going to be held to the same standard as any other attorney and not given special breaks,” and that the court “can’t be [his] la wyer and [ ] can’t answer [his] questions.” After defendant answered all of these questions affirmatively, the court asked him if he was sure he wanted to proceed pro. per. Defe ndant affirmed that he wanted to proceed in pro. per. The court granted his Faretta motion and relieved trial counsel. For the next year, defenda nt proceeded in pro. pe r., filing numerous discovery, continuance, and other motions and appearin g in court for hearings on those motions. Eventually, the court set a dead line for defendant to file hi s motion for new trial, which he timely filed on January 22, 2014. The co urt orally issued a tentative ruling denying the motion on February 6, 2014, and finally de nied it on February 10, 2014 after hearing more than an hour of oral argument from defendant. The court sentenced defendant immediatel y after denying his moti on for new trial. Defendant timely filed a notice of appeal. II. Evidence At Trial A. Prosecution’s Evidence 1. The Shooting Eber Tohom picked up his daughter, Ba rbara Tohom, and two of her friends from their high school prom arou nd midnight on April 26, 2009. 5 One of the friends sat in the front passenger seat of Eber’s blue Ford Explorer, Barbara sat in the middle of the backseat, and her other friend sa t next to her. Eber drove th e two friends to their homes and dropped them off. Barbara remained in the backseat.

3 Brady v. Maryland (1962) 371 U.S. 812.

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

5 We refer to the Tohoms by their first names to avoid confusion.6 At a little past 1:00 a.m., Eber was trying to navigate out of the second friend’s “kind of confusing” residential neighborhood ne ar the juncture of the 2 freeway and the 5 interstate. Eber approached the intersection of Atwater Ave nue and Carillon Street with the intention of making a left turn. He st opped at the intersection to let an oncoming white four-door sedan pass. Barbara descri bed the sedan as a “foreign car,” and Eber testified that he saw a BMW logo on the hood. Instead of passing Eber’s car, the BMW st opped alongside it so that the driver’s open window was across from Eber’s open window ; the cars were about three to six feet apart. The male driver, the only occupant of the BMW seen by eith er Eber or Barbara, yelled “fuck you” at Eber “out of nowhere.” Barbara described the driver as “angry,” and Eber described the driver as yelling in a “bad, evil way.” Scared, Eber drove his car forward and ar ound the back of th e BMW in an attempt to complete the left turn. He and Barbara then heard gunshots. Barbara said or yelled something to the effect of, “Dad, they’re shooting at us ,” ducked down, and started screaming. Barbara testified that she heard “a lot” of gunshots, and Eber testified that he heard “many.” The car was stru ck “[a]pproximately 13” times. Eber tried to accelerate, but he felt someth ing hot in his leg, lost control of his vehicle, and wound up crashing it into a car park ed on the street. Barbara testified that Eber yelled, “They shot me, they shot me” and to ld her to call 911. Eber testified that he told Barbara, “I think I got shot,” and told her to call 911. Barbara’s call did not go through, so Eber drove to a nearby police st ation. An ambulance transported Barbara and Eber from there to a hospital. Eber was tr eated for a gunshot wound behind his knee, which “broke” his nerve and “dropped” his foot su ch that he could not feel it. At the time of trial more than three year s later, Eber testif ied–and demonstrated for the jury–that his left foot remained partially paralyzed. Detectives later recovere d 21 nine-millimeter casings from the scene. Sheriff’s department firearms expert Edmund Anderson opined that 16 of the casings were fired from one firearm, and five were fired from a se cond. He testified that all of the casings came from semiautomatic firearms . Anderson was able to determine that none of the7 casings were fired from a Glock firearm, but could not determine the specific manufacturer of either firearm. 2. Identification of Defendant Los Angeles Police Department (LAPD) o fficer Demetrio Mendoza spoke to Eber while he was at the police station waiting for the ambulance. Accord ing to Mendoza, the only information he got from Eber at that ti me “was a white B.M.W.” Mendoza included that description in the “face sheet” of his re port but included only “white car” in the narrative portion of the report. In a second in terview with Mendoza at the hospital, Eber confirmed that the car was a white BMW. Eber did not provide Mendoza with any information about the suspect; Mendoza documented “N.S.S .,” for “no suspect seen,” in his report. LAPD detective Christopher Vasquez tes tified that he spoke with Eber on the telephone the next morning. (Eber had no re collection of speaking with Vasquez on the phone.) According to Vasqu ez, Eber reiterated his descri ption of the BMW and further described the driver as a medium-build Hispan ic male with a mustache whom he believed he would be able to identify. Eber said he described the shooter as bald, with a mustache, and “[s]omething on the bottom of the mouth, or his beard.” Eber’s description made Vasquez think of defendant, w ho he knew owned a white BM W and belonged to a gang that had rivals in the area of the shooting. Vasquez prepared a “six-pack” photo lineup that included defendant’s photo and took it to Eb er’s home. Eber pointed to defendant’s photo, said “that’s him,” and started crying. Eber also identified defendant at trial. Barbara, who testified that she “didn’t get a very good look” at the shooter because everything happened so quickly and she “coul dn’t really look outs ide the window that well,” was not able to identif y or describe the shooter. 3. Gang Evidence a. The Toonerville Gang LAPD sergeant John Strasner testified as the prosecution’s gang expert. He worked in the gang enforcem ent detail at the Northeas t station from 2004-2008. Approximately 10 to 15 gangs called the No rtheast precinct home, including “violent”8 rivals Toonerville and the Rascals. Defendant had a Toonerville tattoo on his back and was shown throwing Toonerv ille gang signs in a photo taken one week before the shooting. The shooting occurred on “the south most street of the Rascal’s [ sic ] gang” territory, “deep with in the area controlled by the Rascals.” Toonerville members previously had committed two murders in that same area. One of the murders, the February 2008 shooting of a Rascal, occurre d on the same street, “approximately a block and a half” from the Tohom shooting. The ot her, which occurred on December 26, 2008, was “just a few blocks away from Atwater an d Carillon,” “a quarter mile at most.” Strasner also testified about two other homici des that served as some of the prosecution’s “predicate acts”: an April 14, 2006 murder committed by Toonerville member Isael Aguirre and a December 24, 2006 murder committed by Toonerville member Patrick
Evans. In addition to murders, Toonerville’s 300-400 member s engaged in the primary activities of vandalism, “dope sales,” and a ssaults. Like other gangs in Los Angeles County, Toonerville “generate[ d] funds through illegal me ans, by selling narcotics, committing robberies, extortions , things of that nature.” Toonerville operated “under fear, intimidation, respect.” Members woul d earn respect and ascend the “gang ladder” by “put[ting] in work,” or engaging in illegal activities rangi ng from graffiti “tagging” to murder. The majority of the me mbers were Hispanic males. When given a hypothetical based on the fact s of this case, Strasner opined that the shooting would have been commi tted “to further the gang an d promote their activities.” b. The “Toonerville Task Force” and Wiretaps Two members of the Mongol Outlaw Moto rcycle gang were shot at near the juncture of the 2 and 210 freeways in Octobe r 2008. Glendale police detective Arthur Frank quickly “focus[ed] in” his investiga tion on two suspects, both of whom were Toonerville gang members. Frank contacted the LAPD, and the two departments formed a joint “Toonerville Task Force” (the Task Force). The Task Force “employed several investigative means,” including wiretaps, to gather intelligence about members of the Toonerville gang in an attempt to clear unsolved cases. Frank explained that to get9 authorization for a wiretap, “You have to pr epare an affidavit to explain probable cause and the need for the wiretap and we present it to a judge who authorizes the intercept of the phone calls.” The prosecutor then asked, “And, in fact, in th e affidavit, don’t you have to point out that there’ s really no other means, or you have to go through all the other means that you have exhausted and ta pping into someone’s phone is the last resort?” When Frank said that was “correct,” the prosecutor continued, “So a wiretap is a pretty heavy undertaking?” Frank agreed “[i]t is.” He later te stified that “there’s a lot to do” before a wiretap can be auth orized: “[y]ou have to show the necessity that that’s the last resort, the wiretap.” Defendant did not object to the prosecutor’s questions or Frank’s answers, although he di d object to the admission of th e wiretap evidence prior to trial. The Task Force began usin g wiretaps to listen to Toonerville gang members’ phones in November 2008. The Task Force initially obtaine d authorization to monitor six phones, but the scope of its surveillance expanded to include 19 phones by the time the last wiretap expired in July 2009. Fra nk confirmed that the Task Force had “to get approval from the judge to add each subseq uent number” and had to “continually seek approval from the judge to con tinue the investigation on the phones that [it] had prior approval on.” In total, the Task Force monitored between 40,000 and 50,000 phone calls, text messages, and voice mails, as well as 1,500 to 2,000 “jail calls” involving at least one incarcerated party. The Task Force arrested 20-25 memb ers of the Toonerville gang, including defendant, in a coordinate d sweep on July 9, 2009. c. Cell Phone Records The Task Force conducted su rveillance and used other investigative methods to determine the identities of the people contac ted by the gang members whose phones were monitored. One method they used was obtaining “search warrants for phones to get call data information, including cell site, phone nu mbers, calls in and out,” all of which were listed in call detail reports, or CDRs, generate d by cell phone companies. The CDRs as provided did not include subscriber names; the Task Force developed that information10 from the intelligence gath ered during the eight-month wire tap. Although the wiretap operation was “down” at the time of the To hom shooting, and defe ndant’s cell phone was not a direct target until May 2009, the Task Force was able to obtain a CDR documenting the activity of his cell phone during the 48 hours surrounding the shooting. The Task Force, in collaboration with an organizatio n called L.A. Clear, supplemented the entries in the CDR with names. Chad Fitzgerald, a special agent with the FBI, testif ied about the CDR pertaining to defendant’s cell phone. Fitzgerald “kn[e] w nothing of the investigation” aside from a “brief synopsis.” He was “only involved in it to analyze the cell phone activity.” Based on the data in the CDR, Fitzgerald conclude d that defendant’s cell phone arrived in the Glendale area at about 2:46 a.m. on April 24, 2009 and left at a bout 10:00 p.m. on April 26, 2009. Fitzgerald was not able to tell whether defendant personally used the phone at those or any other times; he could tell only that the phone was being used in that particular area. The CDR showed that defendant’s phone made outgoing calls at 12:09, 1:33, 1:35, 1:43, 2:37, 2:55, 2:57, 2: 58, 3:04, 3:10, 3:22, 3:31, 3:46 , and 4:58 a.m. on April 26, 2009. The call at 12:09 was to a number asso ciated with Toonerville member Santiago Ayala, and the calls at 1:33, 1: 35, and 1:43 were to a number associated with Toonerville member Jose Palma. Defendant’s phone re ceived incoming calls at 12:23, 1:30, 1:48, 1:49, 2:01, 2:04, 2:07, 2:59, 3:47, and 5:51 a. m. that same morning. At least two of the incoming calls, those most proxi mate to the time of the shooting, 12:23 and 1:30, went to voicemail. None of the calls was facilitated by the cell phone tower that serviced the area of the shooting. All were facilitated by th ree Glendale-area cell phone towers. The use of these three towers was equally consistent with appellant driving through the Glendale area or remaining stationary at 4051 Chevy Chase Drive, which was “very close to the border of all three of these towers.”
d. The Poem In July 2008, LAPD detective Harold Dicroce serv ed a search warrant at the home of Toonerville gang member Erick Ceballos. Dicroce recovered a letter dated May 18,11 2007 that defendant had written to Ceballos. The letter contained a poem entitled “The Ville Life,” signed by “Deadz.” Gang expert St rasner testified that “Ville” referred to the Toonerville gang and the area the gang claims as its turf, and that “Deadz” was a reference to defendant’s gang moniker, Lil’ De adman. Strasner also offered opinions about several turns of phrase in the poe m, which included the following lines: “Standing on Chevy Chase bl ock, the heart of my hood, watching out for lil’ homies, always up to no good. “[¶] . . . [¶] “Watching the cars with my scope and my gun in hand, hoping they come through my hood so I could make them understand, th at this shit isn’t a game and it ain’t for the fame, it’s for the vengeance and pain, but hatred is mainly to blame. “ [¶] . . . [¶] “Fuck the Noodles and the Trash, we’ll show them how we smash. “[¶] . . . [¶] “Fuck the Mocos and the Fags, we’ll leave you all in body bags. So we’ll continue this shit until the last of you cease to exist . . . . “[¶] . . . [¶] “Sober or if I’m lit, my Sig will constantly spit.” “[¶] . . . [¶] “My streets will always come fiend for the blood of my enemy . . . . “[¶] . . . [¶] “You better come strapped to the ‘T’ because the flame of my Glock, you will see. “[¶] . . . [¶] “So don’t come down Chevy Chase Street, cause that will be your final defeat and you’ll find that you can’t compete and the hands of death you w ill meet. So now you know the deal, so duck when y ou see my steel, cause we’re coming to kill for the big bad Toonerville. [¶] That’s V ille’n poetry, Deadz.” According to Strasner, Ch evy Chase Drive was the lo cation of the Toonerville gang’s main gathering point. “Noodles,” “Trash,” “Mocos,” and “Fags” were,12 respectively, references to the Avenues, Rasc als, West Side Locos, and Frogtown gangs, all of which were Toonerville rivals. The term “lit” referred to being high or drunk, “Sig” and “Glock” were types of guns, “stra pped” meant “come armed,” or “have a gun,” and “spit” meant “spit fire.” On cross-examination, Stra sner conceded that the poem “could be” consistent with rap lyrics. He further testifie d that he had seen “a few” Hispanic gangs that actually produced rap CDs, and that songs contained on rap CDs talk about topics like street violence. B. Defense Evidence 1. Alibi Witnesses Defendant presented an alibi defense, tes tifying on his own behalf that he was at a friend’s house for a birthday party at the tim e of the shooting. He also called three witnesses in support of his alibi. Beatris Montes had known defendant his w hole life but was not related to him. In 2009, she lived at 4051 Chevy Chase Drive with Defendant’ s then-girlfriend, Desiree Smith, who by the time of trial was deceased. On Saturday, Apr il 25, 2009, Montes hosted a birthday party for herself at her home. Approximately 50 people attended the party. Defendant arrived at Montes ’ house in his white BMW at about noon to help her prepare food and barbecue for th e party. He initially parked on the street, but later moved his car into Montes’ driveway. His was th e only car aside from Montes’ parked in the driveway. Other guests started arriving around 4:00 or 5:00 p. m. Montes took a photograph with defendant at 5:49 p.m. Defendant and Smith were s till at the party when Montes retired to her bedroom at 10:00 p.m. At some point after that, Mont es, who was awake until about 3:00 a.m., heard defendant’s car start in the driveway, right outside her bedroom window. She heard defendant and Smith talking as well. Montes heard defendant’s voice after she heard the car drive away. She did not know how many people were in the car or where it went. Both defendant and Smith were at her hous e when she woke up the next morning.13 Montes knew defendant was arrested in July 2009 but was unaware what he was arrested for until she spoke with his private investig ator, Lawrence DeLosh, in July or August
2010. Patricia Vallejo, who lived across the st reet from Montes in 2009, also knew defendant his entire life. Her son, Manue l, was a Toonerville gang member. She testified that she went to Montes’ 2009 birthday party at about 7:00 p.m. and saw defendant among the 50 or so people there. His car was in the driveway. Vallejo saw Smith leave the party alone in defendant’s car sometime around 9:00 or 9:30 p.m. and return around 12:30 or 1:00 a.m. When Vall ejo left the party around 1:00 a.m., she said good-bye to both defendant and Smith. She did not think defendant seemed “drunk or anything like that.” Vallejo admitted that she once was arrest ed for “interfering” with the police. Wendy Sandoval, a family friend of defe ndant’s who “grew up together with him” but currently ran in a different crowd, testif ied that she attended Montes’ birthday party on a Saturday in 2009. Defenda nt and Smith were among the five or six people she knew there. Sandoval saw defend ant barbecuing when she arrive d at the party between 5:00 and 6:00 p.m. She left the party between 8:00 and 9:00 p.m. A Lakers game was on television while she was there. Defendant later introduced a document showing that the Lakers played the Utah Jazz on April 25, 2009. 2. Defendant’s Testimony Defendant testified that he grew up in the Toonerville area of Los Angeles and joined the Toonerville gang when he was about 12 or 13 years old. He joined the gang because “[i]t was just around [him] everywhe re.” Many of his relatives were members and he “didn’t know what [he] was doing.” He got a Toonerville ta ttoo on his back when he was about 16 or 17. He had previous felony convictions for marijuana sales and criminal threats, and had been in jail since hi s arrest in this case on July 9, 2009. He continued to “claim” Toonerville in custody because “[t]he politics in jail” left him “no choice.” Defendant was familiar with other street gangs in the Toonerville area and14 acknowledged that the Tohom shooting took pl ace in Rascals territory, about a five-toseven minute drive from Montes’ house. Defendant was at Montes’ house, in Tooner ville territory, for her birthday party at the time of the shooting. He arrived ther e in his white BMW 740 i around noon on April 25, 2009 and helped Montes prepare for the party by “going back and forth to the city yard, getting ice, and just preparing the food.” He picked up ice on his last trip from Montes’ house and drove his car up the drivew ay to unload the ic e chest from his trunk. Defendant did not move the car from the driveway until af ter the sun came up on April 26, 2009. His then-girlfriend Desiree Smith “was supposed to” use his car on the evening of April 25, 2009, however. Defendant was drinking while he barb ecued at Montes’ party and eventually became intoxicated. He “might have been buzzed” when he took the photo with Montes at 5:49 p.m. but did not think he was drunk at that time. Defendant believed he passed out on the couch at some point but did not know when. He ultimat ely woke up in Smith’s bedroom the next day, after the s un was up. Defendant did not recognize the names associated with some of the phone numbers that ca lled his cell phone during the night. He conceded on cross-examinati on that some Toonerville members use “burner lines,” or cell phones registered under fic titious or stolen names and addresses. Defendant testified that he did not leave Mo ntes’ house on the evening of April 25, 2009 and stated that he “never committed that crime” against the Tohoms; there was “no way [he] did something like that.” Before his a rrest, he worked for th e City of Los Angeles for 10 years maintaining and repa iring playground equipment. Defendant described himself as Hispanic but indicated that he was given his moniker, Little Deadman, be cause of his pale complexion. Defendant stood about 5’5” tall and his weight fluctuated between 170 an d 185 pounds. He had shaved his head for about ten years, maybe longer, and had worn a goatee for about four or five years. Defendant admitted to writing the poem r ecovered from Ceballos’ house. He was in custody at the time and did not yet have the City job; he “was broke” and “was trying to rap, trying to make money.” He acknowl edged that the poem, which he described as15 “a rap,” talked about engaging in violence against other gangs, but explained, “It’s just a rap song.” He continued, “I mean Eminem raps about killing his baby’s mom and he doesn’t really do it.” Defe ndant had written other non-rap po ems, including one that was read at his grandmother’s funeral in 2008. On cross-examination, defendant admitte d that people who ge nerate “paperwork” by cooperating with the police are in danger. If Eber Tohom walked through Toonerville now, “there would be a problem.” Toonerville members might even sh oot or kill him. Defendant admitted that it “woul d be considered something pr etty brave” to go into a rival gang’s territory and “put in work” th ere. Defendant did not know why various gangs hated one another and said that he ha d seen gang members “j ust shoot each other for no reason.” That is why he was wear ing body armor when he was stopped by police in 2006. Defendant denied that he was thro wing gang signs in the prosecution’s photo. He also denied ever commi tting “violent crimes.” C. Rebuttal The prosecution called defendant’s privat e investigator, Lawrence DeLosh, as a rebuttal witness. DeLosh testified that he interviewed Montes sometime between December 2009 and July 2011. Montes told him that de fendant came to her party early to help her barbecue and moved his car into th e driveway at around 9:00 p.m. She went to her bedroom at 10:00 p.m. and heard defe ndant’s car start and leave sometime after that. She heard defendant’s voice but did not hear Smith’s. She said her party was on April 24, 2009. DeLosh spoke to Sandoval on the phone in September 2011. She told him she was at Montes’ party on a Saturday and that a Lakers game was on television during it. DeLosh later verified that the Lakers ha d a game on April 25, 2009. DeLosh took Vallejo’s statement by email.16 DISCUSSION I. Challenges to the Assault Conviction A. Jury Instructions on Mens Rea Defendant contends that his conviction on count 2, for assault of Barbara with a semiautomatic firearm (§ 245, subd. (b)), must be reversed because the court incorrectly instructed the jury as to th e knowledge element required to sustain the charge. He makes two related arguments, both of which imp licate CALCRIM No. 25 2 (Union of Act and Intent: General and Specific Intent Togeth er). First, he claims CALCRIM No. 252 inaccurately described assault as a general intent crime rather than “one that requires a specific mental state, knowledge, that must be proved by the evidence.” Second, he claims that the erroneous inst ruction “diluted the prosecuti on’s burden of proof” on the mens rea element by telling “the jurors that if they find the act wa s committed, then the knowledge is also present.” That is, he contends, it “creates the presumption by telling the jurors how to decide if the intent is shown,” thereby relieving the prosecution of its burden to independently prove knowle dge. We reject both contentions. The trial court has a sua sponte duty to instruct the jury on the elements of a charged offense. ( People v. Mil (2012) 53 Cal.4th 400, 409.) No objection is required to preserve for appellate review a claim that the jury instructions omitted an essential element of the charge. ( Ibid. ) “The independent or de n ovo standard of review is applicable in assessing whether instructions correctly state the law [citations] and also whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury’s consideration.” ( People v. Posey (2004) 32 Cal.4th 193, 218.) Count 2 charged defendant with assaulting Barbara with a semiautomatic firearm. The court instructed the jury on the elements of the crime using CALCRIM No. 875 (Assault with Deadly Weapon or Force Likely to Produc e Great Bodily Injury), which defendant does not dispute accurately desc ribed the elements of the crime. That instruction charges the prosecu tion with proving four elements : “1. The defendant did an act with a semiautomatic firearm that by its na ture would directly a nd probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3.17 When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would direc tly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force with a se miautomatic firearm.” Defendant contends that the mens rea el ement of this instru ction was undermined by the court’s modified version of CALCRI M No. 252. That instruction provided in pertinent part: “The crimes and other allegati ons charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶ ] The following crimes and allegations require general criminal intent: assault with a semi-automatic firearm, charged in Count 2 and as a lesser include d offense to attempted murder, charged in Count 1 . . . . For you to find a person guilty of these crimes or to find these allegations true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he intentionally do es a prohibited act ; however, it is not required that he intend to break the law. The act required is explained in the instruction for that crime or allegation.” (Emphasis added.) The challenged instruction prop erly characterizes assault as a general intent crime.
In People v. Williams (2001) 26 Cal.4th 779, 788 ( Williams ), its most recent case thoroughly explicating the mental state required for assault, the Supreme Court reaffirmed its longstanding holding that “assa ult does not require a specific intent to injure the victim” and clarified that “[ a]ssault is still a general intent crime,” notwithstanding the requirement that a defendan t “be aware of the fact s that would lead a reasonable person to realize that a battery wo uld directly, naturally and probably result from his conduct.” (See also 1 Witkin, Cal. Crim. Law (4th ed. 2012) Elements, § 5, p. 266 [“The fact that a criminal statute require s an act to be done knowingly does not mean that the act calls for specific, rather than general, intent.”].) Indeed, the Williams court expressly held “that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of thos e facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against18 another.” ( Williams , supra , 26 Cal.4th at p. 790.) 6 We accordingly are not persuaded by defendant’s contention that the court erred in “giving a genera l intent instruction where a greater mental state is required.” Nor are we persuaded by his attempt to analogize this

case to People v. Hill (1967) 67 Cal.2d 105, 118, which in volved the specific intent crime of burglary. We also find unpersuasive defendant’ s contention that CALCRIM No. 252 as given by the trial court lessened the pros ecution’s burden of proof by effectively removing the element of knowle dge from the jury’s considerati on. He specifically takes issue with the sentences, “ A person acts with wrongful inte nt when he intentionally does a prohibited act ; however, it is not required that he intend to break the law. The act required is explained in the instruction for th at crime or allegation.” (Emphasis added.) In his view, this language, particularly that italicized above, imperm issibly instructs the jury that the prosecution may satisfy its bur den of demonstrating his intent merely by showing that he committed an unlawful act. However, as a general intent crime, assault
is “‘established upon proof th e defendant willfully committed an act that by its nature will probably and directly result in in jury to another, i.e., a battery.’ ([ People v. ] Colantuono [1994] 7 Cal.4th [206,] 214; see Williams , supra , 26 Cal.4th at p. 782.)” ( People v. Chance (2008) 44 Cal.4th 1164, 1169.) The same is true of the other general intent crimes and special allegations covere d by the instruction, which defendant notably has not challenged. The instruction is a co rrect statement of law properly given when general and specific intent crimes are charged together ( People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190), and if defendant desired clarifying or amplifying language, his failure to request it below forfeits the challenge. ( People v. Samaniego (2009) 172 Cal.App. 4th 1148, 1163.) Additionally, the court admoni shed the jurors to consid er the instructions as a whole, and we presume jurors are intelligent persons capable of co rrelating and following

6 The Supreme Court has re iterated the vitality of Williams in more recent cases. (See, e.g., People v. Bailey (2012) 54 Cal.4th 740, 750; People v. Hernandez (2011) 51 Cal.4th 733, 747; People v. Wyatt (2010) 48 Cal.4th 776, 780-781.)19 the instructions. ( People v. Martin (2000) 78 Cal.App.4th 11 07, 1111.) CALCRIM No. 252 referred the jurors to “the instructi on for that crime,” CALCRIM No. 875, which correctly specified the requisite mens rea acco mpanying the act. Reading the instructions together, as directed, the jury would understand the offense required both an intentional act and an awareness of the direct and probable danger of application of force to a person. B. Sufficiency of the Evidence Defendant next contends that the evidence is insufficien t to support his conviction on count 2 because there is no evidence that he kn ew of Barbara’s presence and therefore “there is no evidence that [he] knew that his act would directly and probably result in the application of force to her.” In other words, he claims th e prosecution failed to prove he acted with the requisite mens rea to be guilty of assault. 7 We disagree. When considering the suffici ency of the evidence, we view the evidence in the light most favorable to the judgment to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, a nd of solid value, such that a reasonable trier of fact could find the esse ntial elements of the charged crime or allegation proven beyond a reasonable doubt. ( Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578.) The Supreme Court clarified in Williams , supra , 26 Cal.4th at p. 784 that “assault requires actual knowledge of those facts suffici ent to establish that the offending act by its nature would probably and di rectly result in physical for ce being applied to another.” “In other words, a defendant guilty of assault mu st be aware of the facts that would lead a reasonable person to realize a battery would directly, natura lly, and probab ly result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectivel y aware of the risk that a battery might occur.” ( Williams , supra , 26 Cal.4th at p. 788.) The tria l court correctly instructed the jury on this mens rea element. (See People v. Velasquez (2012) 211 Cal.App.4th 1170,

7 We note that he does not challenge the court’s instruction, in CALCRIM No. 875, that “The People are not required to prove th at the defendant actually intended to use force against someone when he acted.”20 1176.) Defendant nonetheless contends that the prosecution failed to meet its burden of proving that he actually knew that his acts would probably result in the application of force to Barbara because there was no evidence he knew she was in the car. 8
The Fourth District Court of Appeal considered and squarely rejected an identical argument in People v. Trujillo (2010) 181 Cal.App.4th 13 44, review denied May 20, 2010 ( Trujillo ). There, as here, defendant “fired numerous shots from a semiautomatic rifle at another moving car. The other car had two occupants, a driver and a backseat passenger,” and the defendant co ntended “the evidence is in sufficient to convict him of two counts of assault because he had no kno wledge of the backseat passenger in the car he was shooting at.” ( Trujillo , supra , 181 Cal.App.4th at pp. 1347-1348.) The Trujillo court disagreed for a number of reasons. First, it echoed the court in People v. Felix (2009) 172 Cal.App.4th 1618, 1629 by concluding that objective foreseeability is the appropriate consideration under Williams

. “‘[N]o subjective intent to injure a particular victim is required. Rather, a defendant’s intended acts are evaluated objectively to dete rmine whether harm to a charged victim was foreseeable.’ ( People v

. Felix , supra , at p. 1629.)” ( Trujillo , supra , 181 Cal.App.4th at p. 1353.) Second, it reasoned that even if the defendant we re not actually aware of the passenger in the car, “his mental state can be ‘readily combine[d]’ with the actus reus (or acti rei) of shooting at the car with two people inside to “‘multiply the criminal acts for which the [defendant] is responsible.’” [Citation.]” ( Trujillo , supra , 181 Cal.App.4th at p. 1354.) “Just as ‘a person maliciously inte nding to kill is guilty of the murder of all persons actually killed’ [citation] , a person who harbors the requi site intent for assault is guilty of the assault of all pe rsons actually assaulted.” ( Id. at pp. 1354-1355

. ) Characterizing “the gravam en of assault” as “the likelihood that the defendant’s action will result in a violent injury to another,” the court concluded that a victim of assault is

8 He claims that Barbara’s observation of only one person in the car “suggest[s] that the shooter or shooters only saw one person as well, the driver,” and that Barbara’s inability to identif y the driver is “an indication that he was obscured from her view and vise-versa [ sic ].”21 one for whom such injury was likely–and that the backseat passenger “nearest to defendant’s fusillade of gunshots, was no less a victim of defendant’s assault than the driver” of the car “even if defendant did not actually see” the passenger. ( Id. at p. 1355.) The court found further support for this re asoning in the line of cases recognizing the “kill zone” theory of a ttempted murder. (See id. at pp. 1356-1357.) Ultimately, the court concluded that “[e]ven if the ‘e lastic’ mens rea concept . . . or the kill zone theory do not apply here,” the passenger “was a reasonably fo reseeable victim of defendant’s assault.” ( Id. at p. 1357.) It explained, “[t]he juro rs could have reasonabl y found that a person with actual knowledge that he is shooting indiscriminately at a moving vehicle would realize that his conduct would directly, natu rally, and probably re sult in a battery to anyone and everyone inside th e [car]. . . . Whether defenda nt was subjectively aware of such risk or had the specific in tent to injure any occupant of the car is irrelevant.” ( Ibid. ; see also Williams , supra , 26 Cal.4th at p. 788 [“assault does not require a specific intent to injure the victim”]; In re Tameka C. (2000) 22 Cal.4th 190, 198 [“The underlying substantive offense of assault with a firearm doe s not require a specific intent to injure a particular victim.”].) The record in the instant, factually indistingu ishable case compels the same conclusion. Eber and Barbara both testified that defe ndant unleashed a fusillade of bullets at their moving car, which he unquesti onably knew was occupied by at least one person. The jury certainly could conclude th at a reasonable person in defendant’s shoes would realize that this act by its nature would directly and pr obably result in the application of force to anyon e in the car. The evidence was sufficient to support the requisite mens rea finding on count 2. II. Challenges to All Convictions A. Failure to Hold Marsden Hearing and Appoint New Counsel Defendant argues that his convictions must be reversed because the trial court did not conduct a hearing or appoint him new counsel as required by People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ) when he indicated that he wanted to add an ineffective assistance of counsel claim to his posttrial mo tion for new trial. We conclude that a22 Marsden hearing was not required because defenda nt did not provide the court with “‘at least some clear indication’” ( People v. Sanchez (2011) 53 Cal.4th 80, 90 ( Sanchez )) that he wanted new counsel. “The governing legal principles [derived from Marsden , supra ] are well settled. ‘Under the Sixth Amendment righ t to assistance of counsel, “‘ “[a] defendant is entitled to [substitute another appointed atto rney] if the record clearly sh ows that the first appointed attorney is not providing adequate representa tion [citation] or that defendant and counsel have become embroiled in such an irreconc ilable conflict that ineffective representation is likely to result.”’” [Citati on.] Furthermore, “‘“[w]hen a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate pe rformance.”’”’ [Citations.]” ( People v. Valdez (2004) 32 Cal.4th 73, 95; see also People v. Smith (2003) 30 Cal.4th 581, 604; People v. Hart (1999) 20 Cal.4th 546, 603.) These principles apply “equally preconviction and postconviction.” ( People v. Smith (1993) 6 Cal.4th 684, 694.) “A defendant is entitled to compet ent representation at all times , including presentation of a new trial motion or motion to withdraw a plea.” ( Id. at p. 696.) “[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises wh en the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” ( People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted ( Lucky .))
In Sanchez , the Supreme Court reiterated that a Marsden hearing is required only when “there is ‘at least some clear indication by defendant,’ either person ally or through his current counsel, that defendant ‘w ants a substitute attorney.’” ( Sanchez , supra , 53 Cal.4th at p. 90; see Lucky , supra , 45 Cal.3d at p. 281, fn. 8 [“We do not necessarily require a proper and formal legal motion, but at least some clear indication by defendant that he wants a substitute attorney.”].) “[W]e will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence th at defendant23 made his desire for appointment of new counsel known to the court.” ( People v. Richardson (2009) 171 Cal.App.4th 479, 4 84.) We generally review Marsden issues only for abuse of discretion. ( People v. Jones (2003) 29 Cal.4th 1229, 1245.) Here, defendant did not clearly indicate a desire for a substitute attorney. Instead, he indicated, both through his tr ial counsel and in direct colloquy with the court, that he wanted to proceed in pro. per. Trial counsel told the court defendant “was thinking of proceeding in pro per,” and de fendant confirmed that if the motion for new trial was denied, “I would like to go pro per.” When counsel asked defendant if he wanted new counsel to present the additional claim he wished to raise, “as opposed to doing it himself,” defendant responded only, “I don’t know much about the law.” This cryptic comment did not clearly apprise counsel or the court that defendant wanted substitute counsel, especially in the cont ext of his earlier, more explicit assertion that he wanted to represent himself. Defendant argues that his counsel’s suggestion–and the court’s apparent understanding–that he wanted to add a claim of ineffective a ssistance of counsel to the motion for new trial was itself a sufficiently “clear indication” that he wanted a substitute attorney. We disagree. Defendant’s oblique expression of dissatisfaction with his trial counsel is not akin to a request for substitute counsel. (See People v. Burton (1989) 48 Cal.3d 843, 855.) “Nor is it the rule th at whenever a defendant makes a motion to represent himself on the basis of dissatisfact ion with counsel, the court automatically should inquire whether he would like to make a motion for substitution of counsel. [Citations.]” ( Ibid. ) People v. Gonzalez (2012) 210 Cal.App.4th 724, rev. denied Jan. 30, 2013 ( Gonzalez ) is illustrative. There, defendant filed a motion that his trial counsel informed the court “could be a Marsden matter” because “[h]e’s complaining about my conduct.” ( Gonzalez , supra , 210 Cal.App.4th at p. 738. ) The motion, which indeed claimed that trial counsel performed inadequa tely in a variety of ways, was accompanied by an express request by defendant to “go pr o per for my sentencing and for a retrial motion.” ( Id. at p. 738.) The Court of Appeal re jected defendant’s contention that the motion alone triggered the tria l court’s duty to conduct a Marsden hearing, concluding24 that there was “no clear indication that Go nzalez was requesting a substitute appointed attorney” despite his complaints about counsel’s performance. ( Id. at p. 741.) The same is true here. Defendant was not entitled to a formal Marsden hearing under the circumstances of this case, in which the tria l court gave him an opportunity to explain what he wanted to do in any event. Nor was he entitled to the automatic a ppointment of new counsel. Defendant suggests–but does not explai n why–the trial court had a dut y to appoint new counsel, or, at a minimum, to conduct a Marsden hearing. No such duty exists. As the trial court astutely observed, and as the Marsden process reflects, it would be untenable to require the automatic appointment of substitute coun sel any time a defendant says, “‘Now I think my lawyer didn’t handle some issue corre ctly.’” “[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court fi nds that the defendant has shown that a failure to replace the appointed attorney would substa ntially impair the right to assistance of counsel.” ( People v. Smith , supra , 6 Cal.4th at p. 696.) He re, defendant did not request to replace trial counsel with another attorney and therefore did not trigger the court’s obligation to conduct a Marsden hearing. He consequently did not trigger (and could not have triggered) any subsequent obliga tion to appoint replacement counsel. B. Adequacy of Faretta Waiver The Sixth Amendment, whic h guarantees the assistance of counsel to criminal defendants, also guarantees a right of self-representation. ( Faretta , supra , 422 U.S. at p. 834.) To exercise the Faretta right to self-representation, a defendant must make a voluntary, knowing, and intelligent wa iver of the right to counsel. ( People v. Elliott (2012) 53 Cal.4th 535, 592; People v. Burgener (2009) 46 Cal.4th 231, 240-241 ( Burgener ).) Accordingly, a defendant seeking to represent himself ““should be made aware of the dangers and disadvantages of se lf-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation.]” [Citation.] “No particular fo rm of words is required in admonishing a defendant who seeks to waive counsel and elec t self-representation.” [Citation.] Rather,25 “the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-represent ation, including the risks and co mplexities of the particular case.” [Citations.]’ [Citation.]” ( Burgener , supra , 46 Cal.4th at p. 241.) “On appeal, we independently examine the entir e record to determ ine whether the defendant knowingly and intelligently waived th e right to counsel.” ( Ibid. ) Defendant bears the burden of demonstrating that he did not knowin gly waive his right to counsel. ( People v. Weber (2013) 217 Cal.App.4th 10 41, 1058-1059; see also Iowa v. Tovar (2004) 541 U.S. 77, 92.) Defendant contends that hi s posttrial invocation of his Faretta rights was “not free, voluntary, knowing, or in telligent because it was the product of the trial court’s error in not conducting a Marsden hearing and because the cour t’s summary inquiry failed to establish such a waiver.” We disagree on both points. First, as discussed above, the tria l court was not required to conduct a Marsden hearing given the absence of “at least some clear indication” that defendant wanted a substitute attorney. In any event, this case is distinguishable from People v. Hill (1983) 148 Cal.App.3d 744 ( Hill ), the only case defendant cites in support of his contention that “the court’s failure to conduct a Marsden hearing or to appoint new counsel also precludes a finding that [his waiver of th e right to counsel and invocation of his Faretta rights] was knowing, intellig ent, and voluntary.” In Hill , the defendant filed a Faretta motion but told the court the only reason he was doing so was because he lacked confidence in his lawyer; he e xplicitly stated multiple times that he did not actually want to represent himself. ( Hill , supra , 148 Cal.App.3d at pp. 750-751.) The court discussed the matter off the record with defendant’s previous attorn eys and ultimately refused to appoint substitute counsel or permit defendant to act as cocounse l with his appointed attorney. ( Id. at p. 750.) Defendant reluctantly pr oceeded in pro. per. for two days, until the court, in an “‘abundance of caution,’” reappointed one of defendant’s previous attorneys. ( Id. at p.751.) When that attorney reported that de fendant was uncooperative and wished to renew his Faretta motion, the court granted the motion but denied a continuance. ( Ibid. ) Defendant represented himself in several in limine matters, but26 reported that he felt unprepared. ( Ibid .) His most recently appo inted attorney expressed a willingness to step back in if a continuance were provided, but “[o]n the basis of [that attorney’s] unwillingness to proceed immediately with jury selection and [defendant’s] previous vacillations on the qu estion of representation, the court denied [defendant’s] motion for reinstatement of appointed counsel.” ( Id. at p. 752.) Defendant consequently represented himself throughout the remainder of trial. ( Ibid. ) The appellate court concluded that the trial court erred in failing to conduct a more probing Marsden inquiry on the record, and that error “taint [ed]” the defendant’s subsequent Faretta request because “‘[d]efendant’s decision to proceed in pro. per. was predicated upon his belief, mistaken or not, that he could not exp ect effective representation from the public defender’s office. This belief was effectivel y reinforced by the cour t’s failure to fully explore defendant’s charges.’” ( Id. at pp. 755-756.) Here, in contrast, defendant consistently expressed a desire to proceed in pro. per., after the heavy lifting associated with trial wa s completed. He did not inform the court that he wanted a new attorney, nor did he i ndicate that he felt unable to file his desired motion without the assistance of counsel. Th e court asked defendant what he wanted to do, and he said he wanted to both file tr ial counsel’s motion and represent himself and file another motion, “if that’s possible.” The court ultimately allowed him to do just that, after properly advising him of the risks as described below, and defendant never vacillated in his choice. Hill does not compel reversal here. Neither do defendant’s related contentions, that “the court’s cursory inquiry” into his desire to assert his Faretta rights did “not constitute th e searching inquiry that the waiver of the right to counsel demands,” and that its warnings did not adequately apprise him of the risks he faced. The court advi sed defendant that he would be proceeding against an experienced prosecutor, that he would be held to the same standards as a trained attorney, and that the court would not be able to answer his questions or act as his lawyer. These admonishments, which defendan t unequivocally said he understood, were sufficient in the unusual, posttrial circumstan ces of this case. By the time the court admonished defendant, defendant had been through trial twic e, had been found guilty of27 all the charges against him, and had reviewed , initialed, and signed an “advisement and waiver of right to counsel” that include d a lengthy recitation of the “dangers and disadvantages of self-representation.” He also had discussed the prosecution’s recent disclosure of about 1200 pages of potential Brady material with his trial counsel. This record demonstrates that defendant’s eyes we re open to the dangers and disadvantages of self-representation. Defendant contends that the record does not demonstrate that he was aware of the “risks of the particular case,” however, beca use neither the written waiver form nor the court advised him of the maximum sentence he f aced. It is true that the waiver form defendant signed did not contai n any information about the precise charges or penalties he faced. (Compare, e.g., People v. Jackio (April 30, 2015, C074019) __Cal.App.4th __, [2015 WL 1956080] [waive r forms listed code sections fo r crimes charged in information and expressly stated “‘Penalties for offens e if found guilty are life in prison’” and “‘Penalties for offense if foun d guilty are life’”].) Defenda nt did initial the following statement, however, indicating his understanding that he wo uld be entering the posttrial stage of his proceedings withou t the assistance of counsel: “I understand that I am giving up having a professional attorney determine, if I am convicted, what post-trial motions and sentencing options I may have, and to present those motions and options to the Court.” Moreover, “[t]he failure to give a pa rticular set of advisements does not, of itself, show that a Faretta waiver was inadequate.” ( People v. Weber, supra, 217 Cal.App.4th at p. 1058.) Defendant’s bur den to demonstrate the lack of a knowing and intelligent waiver “‘is not satisfied by si mply pointing out that certain advisements were not given.’ [Citation.]” ( Id. at pp. 1058-1059.) This is partic ularly true where it was, and still is, unclear whether a court is required to advi se a defendant of the maximum penalty he faces if the defendant seeks pro. pro. status after conviction (see People v. Conners (2008) 168 Cal.App.4th 443, 455). 9 The record as a whole indicates that defendant was

9 The Third District Cour t of Appeal recently held that the Sixth Amendment requires a trial court to advise a defendant “d esiring to represent himself at trial of the maximum punishment that coul d be imposed if de fendant is found gu ilty of the crimes,28 familiar with “the nature and seriousness of the crimes for which he would be sentenced” ( People v. Elliott , supra , 53 Cal.4th at p. 592), and we are satisfied that his waiver of the right to counsel was voluntary, knowing, and intelligent. C. Evidentiary Rulings Defendant argues that several of the cour t’s evidentiary rulings were prejudicial and require reversal. We review thes e rulings for abuse of discretion. ( People v. Thompson (2010) 49 Cal.4th 79, 128.) 1. Admission of the “Rap Poem” Defendant contends that the court abused its discretion by admitting the “rap poem” he authored, and that he was prejudice d by the error. He concedes the poem was relevant, but argues that the probative value of the poem was dwarfed by its prejudicial effect on the jurors, whom he claims “[i]nev itably . . . used the rap poem as character evidence showing a propensity to commit crimes such as this.” He also contends that the poem was cumulative, adding “little to the moun tain of other eviden ce adduced by the prosecution on the gang allegation and [his] membership in the gang.” We are not persuaded by these arguments. Evidence Code section 352 vests the tr ial court with discretion to exclude otherwise relevant evidence if its probativ e value is substantially outweighed by the probability that admitti ng the evidence will unduly prolo ng the proceeding, prejudice the opposing party, confuse the i ssues, or mislead the jury. ( People v. Zepeda (2008) 167

with enhancements, alleged at the time th e defendant moves to represent himself.” ( People v. Jackio , supra , ___Cal.App.4th at p. __.) The United States Supreme Court also has held that the trial court must advise a defendant seeking to enter a guilty plea “of the range of allowable punishments attenda nt upon entry of a guilty plea.” ( Iowa v. Tovar (2004) 541 U.S. 77, 81.) The precise proc edural posture of a case “is significant” when determining the adequacy of Faretta advisements. ( People v. Jackio , supra , ___Cal.App.4th at p. __.) Defendant has not cited any case holding that a court is required to advise an already convicted defenda nt seeking pro. per status of the maximum penalties he now faces. In our view, once a de fendant has been convicted, the rationale for advising a pretrial defendant seeking pro. per. status of the sentencing consequences he faces should he be found guilty no longer applies.29 Cal.App.4th 25, 34-35 ( Zepeda ); see Evid. Code, section 352.) For the purposes of Evidence Code, section 352, “‘prejudicial’ is not synonymous with ‘d amaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its re levance on material issues. [Citations.]” ( People v. Kipp (2001) 26 Cal.4th 1100, 1121.) “Evide nce is cumulative if it is re petitive of evidence already before the jury.” ( People v. Evers (1992) 10 Cal.App.4t h 588, 599, fn. 4.) The poem was not unduly prejudi cial. Just like the rap ly rics properly admitted in Zepeda and People v. Olguin (1994) 31 Cal.App. 4th 1355, 1372-1372, the poem that defendant admittedly authored was highly “probativ e of defendant’s state of mind and criminal intent, as well as his membership in a criminal gang and his loyalty to it.” ( Zepeda , supra , 167 Cal.App.4th at p. 35.) Indeed, be fore trial began, the court told the prosecution, “I don’t have a problem with you using the letter . . . to show his commitment to his gang,” and the prosecut or properly argued that the poem was illustrative of defendant’s “int ent to commit this violent act” and “his hatred, his willingness to do violence, and his commitment to his gang.” “The mere fact the lyrics might be interpreted as reflective of a ge nerally violent attitude could not be said ‘substantially’ to outweigh their c onsiderable probative value.” ( People v. Olguin , supra , 31 Cal.App.4th at p. 1373.) Defendant’s unsu pported assertion that the jury improperly construed the poem as propen sity evidence despite being instructed not to do so by CALCRIM No. 1403 accordingly does not demons trate that the poem was prejudicial. We presume that jurors understand and follow the court’s instructions (e.g., People v. Edwards (2013) 57 Cal.4th 658, 746), and CALCRIM No. 1403, which “is neither contrary to law nor misleading,” “states in no uncertain terms that gang evidence is not admissible to show th at the defendant is a bad person or has a criminal propensity” ( People v. Samaniego, supra, 172 Cal.App.4th at p. 1168). Defendant has not shown that the jury disregarded the instru ction. Nor has he persuaded us that the poem was so inherently prejudicial as to render the cura tive instruction ineffective. The relatively short, written poem lacks the visceral emotiona l punch of the lengthy videos depicting the consequences of drunk driving found incurably prejudicial in People v. Diaz (2014) 22730 Cal.App.4th 362, 383. Its contents likewis e are far less damning than oral testimony from a police officer suggesting that the defenda nt confessed to the charged crime. (See People v. Navarrete (2010) 181 Cal.App.4th 828, 834.) In short, “[t]he language and substance of the [poem], althou gh graphic, did not rise to le vel of evoking an emotional bias against the defendant as an individua l apart from what the facts proved.” ( Zepeda , supra , 167 Cal.App.4th at p. 35.) The poem also was not cumulative simp ly because it was not the only piece of evidence tending to show defend ant’s gang affiliations and motivations. Its explicit and graphic depiction of defenda nt’s “fealty to furthering his criminal gang activities” rendered it “differ[ent] in context from his tatt oos, . . . pictures of himself flashing gang signs” ( Zepeda , supra , 167 Cal.App.4th at p. 35), and the wiretap and phone evidence. The trial court did not abuse its discretion in admitting the poem. 2. Admission of “Mongol Murder/Wiretap/Sweep” Evidence Defendant also challenges the admiss ion of what he terms the “Mongol Murder/Wiretap/Sweep” evidence. All of this eviden ce came from Detective Arthur Frank’s testimony, summarized above. Th e “Mongol Murder” evidence consists of Frank’s testimony regarding his investigation of a 2008 shoo ting directed at two members of the Mongol Outlaw motorcycle gang, one of whom was killed. Frank stated that the investigation “involved a shootin g that occurred on the 210 freeway, the transition to the southbound 2. The two victims were shot at by two individuals in a car at about 2:00 o’clock [ sic ] in the morning. They were both riding motorcycles and they were both Mongol, members of the Mongol Outlaw motorcyc le gang. Mr. Martin died at the scene and Mr. Hamberg was shot at and not injured.” Frank further testified that he identified two members of the Toonerville gang as suspec ts, and that his inve stigation ultimately led to the creation of the Toonerville Task Force. Frank clarifie d on cross-examination that defendant was not a suspect in the “M ongol Murder,” which “was the impetus to develop ultimately the wiretaps.” Frank then segued into testimony about th e wiretaps, including the efforts he and the Task Force had to undertak e to gain authorization to im plement them. As we noted31 above, defendant did not object to Frank’ s (and the prosecutor’s) comments about the difficulty inherent in obtaining wiretaps. Frank testified about the number of monitored phone lines, the volume of inte rcepted correspondence, and the fact that the wiretap also included jail calls. None of the intercepted ca lls was introduced; Frank explained that the wiretap was not operational at the time of the Tohom shooting. Frank also told the jury that defendant was arrested at the same tim e as some 20-25 other To onerville members in a coordinated arrest sweep on July 9, 2009. Defendant contends that all of this evidence was irrelevant and therefore inadmissible. We reject this contention as to the “Mongol Murder” and wiretap evidence. We do not reach defendant’s contention regard ing the sweep because he did not object to the admission of that evid ence before or during trial. To the contrary, his trial counsel elicited the now-objected-to information dur ing his cross-examination of Frank, and defendant himself testified that he was arrested on July 9, 2009, and had been in custody since then. (See People v. Lang (1989) 49 Cal. 3d 991, 1031-1032.) 10 Only relevant evidence is admissible (Evid. Code § 350 ), and all relevant evidence generally is admissible. (Evid. Code, § 351.) Evidence is relevant if it has “any tendency in reason to prove or dispro ve any disputed fact that is of consequence to the determination of the action.” (Evid. Code , § 210.) The “Mongol Murder” and wiretap evidence plainly clears this minimal thre shold. Frank’s limited testimony about a shooting that did not involve defendant wa s relevant to show why law enforcement sought and obtaine d wiretaps against the Toonerville gang. The wiretaps themselves were relevant because they led to inte lligence about the rela tionships among gang members and the phone numbers they used to communicate with one another. That information in turn enabled law enforcement to determ ine that defendant’s cell phone communicated with known member s of the Toonerville gang on the night of the Tohom

10 Defendant argues for the first time in reply that, to the extent any of his evidentiary objections were forfeited, counsel was ineffective in failing to properly raise them below. This argument itself is forfe ited because defendant di d not raise it in his opening brief. ( People v. Clayburg (2012) 211 Cal. App.4th 86, 93.)32 shooting, thereby tending to prove that the shooting was committed for the benefit of, at the direction of, and in associati on with a criminal street gang. Defendant argues that “the wiretap ev idence was not used for these purposes,” because the detailed “cell phone evidence regarding [his] cell phone was obtained pursuant to a search warrant, not a wiretap.” Defendant is correct that the CDR regarding his cell phone was obtained pursuant to a sear ch warrant, but he overlooks the fact that the annotations identifying the parties receiving his ou tgoing calls and making the incoming calls were derived from the wiretaps and the attendant investigation. This clear link between the wiretap and the annotations further undermines hi s suggestion that the prosecution misled the court into admitting the wiretap evidence. Defendant also challenges Frank’s (and th e prosecutor’s) “gratuitous description” of the arduous process required to obtain a wiretap. This contention is forfeited due to defendant’s failure to object at trial. Defe ndant’s objection to the wiretap evidence as a whole preserved most of his arguments here , but his broad pre-trial objection to the admissibility of the wiretap evid ence as a whole did not excuse his obligation to object at trial if he believed the prosecution exceeded the bounds of the cour t’s evidentiary ruling or otherwise improperly characterized or commented on the evidence. ( People v. Ramos (2013) 216 Cal.App.4th 195, 208-209.) In the alternative, defendant contends that the “Mongol Murder” and wiretap evidence should have been excluded as undul y prejudicial under Evidence Code section 352. We disagree. The court appropriately balanced the low risk of prejudice to defendant against the uniquely probative value of this ev idence. The court expressly circumscribed the prosecution’s use of this ev idence, which came in only through oral testimony and was not so inherently inflammato ry as to overwhelm the court’s instruction regarding the proper use of gang evidence. (See ante , at pp. 31-32.) D. Prosecutorial Error Defendant next contends that the prosecutor co mmitted prejudicial error by improperly arguing “guilt by association.” He points to the following ex cerpt of the prosecutor’s closing argument, highlighting the last paragraph as most problematic:33 “I said, ‘Detective, this st reet, is this important? Is this a major street, a major thoroughfare?’ Why would that be impor tant? Because whoeve r did the shooting, whoever did the shooting had to go there on purpose. They didn’t just encounter somebody. They went down there on purpose. “And if they’re from Toon erville, if the shooter was from Toonerville, they went into rival territory, deep into rival territory, where it’s not safe for them. So when we’re talking about specific intent to kill, that goes into the specific inte nt. When you’re thinking about why woul d you go there, to go to Foster s Freeze? No. There’s not a Fosters Freeze here, that’s on Fletcher. “Why would you go there, to rival gang territory, unless you wanted to do harm to somebody, and you know you could do harm, because yo u did harm not long ago, on February 15. They shot Steve Garcia just a block and a half up the street. Then, in December of ‘08, they shoot somebody else in Rascals territory wh o happened to be an Echo Park gangster, but, again, it was a nother Toonerville gangste r that shot him.” Defendant acknowledges that he did not object to this or any other portion of the prosecutor’s closing argument at trial. His silence at trial renders the claim forfeited on appeal. “To preserve a claim of prosecut orial misconduct, a defendant must make a timely and specific objection and ask the court for a curative instruction.” ( People v. Smith (April 27, 2015, S112442) ___Cal.4th ___ [2015 Cal. Lexis 2337].) Defendant did neither, and we are not persuaded by his su ggestion that this case involves such “pervasive prejudicial prosecutorial miscond uct” as to warrant a departure from our ordinary rules of forfeiture. ( People v. Dykes (2009) 46 Cal.4th 731, 775, fn. 8.) Defendant identified a single isolated instance of alleged prosecutorial error, which even if prejudicial was by no means pervasive. We likewise are not convinced that defe nse counsel was ineffective in failing to object to the argument. (See People v. Centeno (2014) 60 Cal.4th 659, 674 ( Centeno ).) “‘[T]he decision facing counse l in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one’ ( People v. Padilla (1995) 11 Cal.4th 891, 942, ov erruled on another ground in People v. Hill (1998) 1734 Cal.4th 800, 823), and ‘a mere failure to object to evidence or argument seldom establishes counsel’s incomp etence’ [Citation.]” ( Centeno , supra , 60 Cal.4th at p. 675.) When the record on direct appeal sheds no light on th e reason for counsel’s failure to act in the manner challenged, defe ndant must show there was no conceivable tactical purpose for counsel’s omission. ( Id. ) Defendant has not made th at showing here; he merely asserts that “it cannot rationally be argued that there existed a rational tactical purpose for not objecting to the improper argument.” More over, even if we a ssume both that the comment was improper and that defense counse l’s failure to object to it was objectively unreasonable and deficient, we cannot conclu de that defendant su ffered any prejudice. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 694; Centeno , supra , 60 Cal.4th at pp. 674-675.) Prejudice in this context means that there is a “reasonable probability that, but for counsel’s unprofessional errors, th e result of the proceeding would have been different.” ( Strickland v. Washington , supra , 466 U.S. at p. 694; Centeno , supra , at p. 676.) Here, the jury had eyewitness test imony implicating him, as well as strong circumstantial evidence that he was in cont act with members of his gang around the time of a shooting that took place in rival territory. We are not persuaded that the result would have been any different had defense counsel successfully lodged an objection to the prosecutor’s closing argument. E. Cumulative Error Defendant’s final contention is that the cumulative effect of the alleged errors discussed above deprived him of a fair trial and requires reversal of the judgment. (See People v. Hill , supra , 17 Cal.4th at p. 815.) “[A] series of trial errors, though independently harmless, may in some circum stances rise by accretion to the level of reversible and prejudicial error.” ( Id. at p. 844.) Such circumstances are not present here. Because we have found no errors, defendant’s claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)35 DISPOSITION The judgment of the trial court is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.