1 Filed 3/11/15 P. v. McCowan CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. RAYMOND B. McCOWAN, Defendant and Appellant. A138648
(San Mateo County Super. Ct. No. SC071579A)

Defendant Raymond McCowan appeal s from a judgment convicting him of assaulting his wife with a hammer and senten cing him to prison for 36 years to life. He
contends that he received ineffective assistan ce of counsel and that the court erred in denying his motions for a continua nce, substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ), and a new trial. We shall affirm. Factual and Procedural History Defendant was accused of committing thre e criminal offenses on February 8, 2010. Count one charged defendant with violating Penal Code section 273.5, subdivision (a), 1 by willfully and unlawfully inflicti ng on his spouse, Ladonna Christian, corporal injury resulting in a traumatic condi tion. The information alleged that in the
commission of the offense defendant used a hammer, a deadly and dangerous weapon within the meaning of section 12022, subdivisi on (b)(1), and that the offense is a serious felony under section 1192.7, subdivision (c )(23). Count two charged that defendant

1 All further statutory references are to the Penal Code unless otherwise noted.2 violated section 245, subdivision (a)(1), by a ssaulting Christian with a deadly weapon, a hammer, also a serious felony within section 1192.7, subdivision (c )(23). Attached to those counts were allegations of six prior offenses in San Francisco and San Mateo Counties in the period from 1982 to 1989. Count three charged defendant with a misdemeanor resisting arrest in violati on of section 148, subdivision (a)(1). The following evidence was presented at trial: On February 8, 2010, General Manage r Christopher Hill and Assistant Manager
Jordan Austin were at work at the La Quinta Inn on Airport Boulevard in South San
Francisco. When defendant was checking out of the hotel th at afternoon, Hill testified that he was “aggravated,” disputing $270 of telephone charges put on the bill in his absence by his wife and son, Raymal McCowa n. When Hill gave defendant his receipt, he recognized that defendant was “still frus trated” and watched him as he exited.
Hill went from the front de sk into the office, where he watched from the window
as defendant walked from the front door of th e hotel to his truck, parked about 50 feet away. Austin was seated at he r desk and could see defendant’s truck through the window.
Both Hill and Austin saw defe ndant go to the truck and en ter the driver’s side. Both
testified that defendant’s wi fe was sitting in the front pa ssenger seat and his son was sitting in the rear passenger seat. 2 Austin saw defendant gest uring at the woman with
what she assumed was the hotel bill in his ha nd. She could not hear what was said, but defendant appeared to be ye lling, his hands were “flailing” and his mannerisms indicated it was not a calm, quiet conversation. Hill also could not hear the couple, but described the “very animated conversation” as “definit ely an argument” because of defendant ’s shaking shoulders and the “gyration” of his head back and forth. After a minute, both observers saw defe ndant get out of the truck and pull a “heavy cylindrical crowbar-esque type object ” from the door, get back in and shut the door again. In the driver’s seat, defendant pivoted and hit the female passenger forcefully

2 Austin acknowledged on cross-examination that it was possible th e woman was in the back seat, as she told the 911 dispatcher.3 between 10 to 20 times. Hill could not see the object making contact, but saw the victim’s
frantic movements in reaction. Austin also di d not see the metal object strike the victim, but the way she was “cowering” made Austin sure defendant was “absolutely beating
her.” Hill left the office to get the license num ber of the truck while Austin called 911. After defendant stopped hittin g his wife, defendant delaye d “a minute or so” before starting his truck. As defendant was exiting the parking lot, he stopped the truck and spoke briefly to two transients walking through the lot.
South San Francisco Police Officers Kathleen Walsh and Matthew O’Connor responded to a report of a male beating a fema le in a Chevy Avalanche that had just left the La Quinta Inn parking lot. They were the first to encounter defendant driving on Airport Boulevard near the Gr and Avenue on-ramp. Walsh turned on her patrol vehicle’s red light and defendant pulled over on the on-ramp. Walsh could see a male driver and a female passenger Defendant was ordered out of the car and handcuffed. In searching defendant’s car, officers found a hammer on th e floorboard under the driver’s seat.
O’Connor testified that Christian was in the back seat when he approached the truck. He saw scrapes on Christian’s forear ms and fresh blood s pots on her pants. She looked “visibly sh aken,” and her eyes were watering. Limping with a “severe slouch” to one side, she walked “with great difficulty” ab out ten feet to a concrete median wall and leaned against it, shaking th e whole time. Asked if she n eeded medical assistance, she said she did not, but O’Connor noneth eless called a paramedic based on the circumstances and the injuries he observed. O’Connor did not obser ve any signs that
Christian was under the influence of alcohol at the scene or at the police station.
Walsh testified that Christian’s left fo rearm was “bleeding pretty good” and she had a couple of circular imprints on her ve lour pants. Christian would not answer any questions about the cause of her injuries bu t did allow Walsh to photograph her injuries. The photographs show scrapes on her left for earm all the way down to her wrist, not a single scratch but multiple abrasions with poi nts of redness where she was still bleeding. From Walsh’s training and experience respo nding to assaults, those appeared to be4 defensive wounds of the type occurring when a person being attacked brings their arms up to protect their face and head. Walsh sa w and photographed at least two injuries on Christian’s left thigh that bore a circular im print with a crisscross waffle pattern the same size and shape as that on the head of the hamme r found in the truck. These injuries also matched the pattern imprinted on Christian’s pants. San Mateo County’s lead forensic nurse practitioner Dian a Emerson did not examine Christian but reviewed the reports, th e photographs of Chri stian’s injuries, and
the hammer. She testified that th e abrasions on Christian’s le ft forearm appeared to be defensive injuries. The injuries to Christian’ s leg were pattern injuries which result when the force and velocity of blows are strong enough to imprint on the person’s skin or clothing the crisscross pattern of the inst rument with which the person was struck. The size and shape of the pattern were cong ruent with the head of the hammer.
Evidence was also introduced regarding an incident that occurred in San Francisco on the night of March 11-12, 2011. In that incident, police officers responded to a
domestic violence call at defendant’s residenc e and found Christian naked, crying, and “bleeding from her face.” To the respondi ng officer, it looked like “some object or something had gauged out little sections of her cheeks.” Christian was taken to San Francisco General Hospital. Defendant was arrested and convicted of felony charges arising out of that domestic violence. Raymal McCowan testified in his fathe r’s defense. He claimed that when his
father returned to the truck from paying the hotel bill, he did not raise his voice to his mother, and did not strike her with a tool, cr owbar or the hammer that his father kept in the back of his truck. He explained that hi s mother has problems with alcohol and drugs and that on the night of February 7, she wa s drinking and “wobbling.” That night she fell a number of times and injured herself while they were returning from dinner. On crossexamination, Raymal did not remember testifying at the preliminary hearing that his mother injured her leg at the hotel when she fell on some ice. Raymal also testified that
his mother did not fall in a bush while walk ing to his father’s truck that morning.5 It was stipulated that, in spite of de fense counsel’s due d iligence, Christian was unavailable to testify, so her testimony at the preliminary hearing was read into the record pursuant to Evidence Code section 240, subdi vision (a)(5). In that testimony, Christian claimed that she had been drinking on Febr uary 8, 2010, and that she injured her arm when she slipped and fell into the bushes on he r way to the truck. She hurt her leg the night before when she fell on some ice in the hotel room. She denied arguing with defendant that day. She did not know if defendant had a hammer, nor did she see him holding one or striking with anything in the car that day. Defendant did not hit her, and
she never screamed in the car. The jury found defendant guilty on co unts one and two and not guilty on count three. Thereafter, the court found the prio r felony convictions true. Defendant was
sentenced on count one to the three- strikes term of 25 year s to life. A second 25-year-tolife term was imposed on count two but stayed pursuant to section 654. The court also imposed two 5-year enhancements pursuan t to section 667, subdivision (a), for defendant’s prior convictions a nd an additional year for the w eapon use, for a total of 36 years to life. Defendant timely filed a notice of appeal.
Discussion
1. Ineffective Assistance of Counsel
Defendant contends that hi s trial counsel rendered ine ffective assistance in failing to obtain and use the transcripts from defe ndant’s trial on the domestic violence charges arising out of the March 2011 incident. He argues that many of the same witnesses testified in both trials so that the transcripts from the earlier trial could have been used to impeach critical prosecution witnesses in the present acti on. He also argues that the transcripts would have alerted counsel to the need for a defe nse injury expert. We need
not determine whether counsel’s performance was deficient in this regard, as the failure to obtain the transcript was not prejudicial. ( Strickland v. Washington (1984) 466 U.S. 668, 697 [“[A] court need not determine wh ether counsel’s performance was deficient before examining the prejudi ce suffered by the defendant as a result of the alleged deficiencies. The object of an ineffec tiveness claim is not to grade counsel’s6 performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course sh ould be followed.”].) Defendant argues the transc ript could have been used to impeach Hill with his testimony at the prior trial that on the occasion relevant in this trial he saw defendant hit the victim “at least six” times, that defend ant waited “at least three or four minutes” before starting to drive away, and that he stoppe d to talk to the transi ents for “a minute or two” before leaving the parking lot. Howeve r, there is no material difference between Hill’s prior testimony and his te stimony in the current trial that he thought defendant hit the victim between 10 and 20 times, that defendant waited a “minute or so” before starting to drive and that he stopped to talk to the transients for “another minute or so.”
There is no likelihood that br inging out such triv ial inconsistencies would have resulted
in a more favorable outcome for defendant. Neither are there any material differen ces between the arresting officers’ prior testimony and their testimony in the present trial. Walsh testified in the present case that when she stopped defendant’s truck, the “b ack window was slightly tinted, but it was daylight and [she] could see inside.” In the earlier trial, she testified that the windows were tinted and she could see through the tint. The absence of the qu alifier “slightly” in the prior testimony is not material and any failure to impeach with this testimony is certainly not prejudicial. O’Connor testified previously that the abrasions on Christian’s arm were “possibly” consistent with her falli ng into a bush. In the present trial O’Connor
testified that Christian had not mentioned falling into a bush and that the wounds on her arm “might have been minutes old, perh aps hours old.” Although he was not asked
whether her arm wounds were consistent with falling into a bu sh, nothing in his testimony suggested they were not. Indeed , even the prosecution’s expert witness acknowledged the arm wounds could have been caused by falling into a bush. Finally, based on the record before us, there is no likelihood that testimony by an injury expert for the defense would have resulted in a more favorable outcome for defendant. Defendant argues that an expert would have opined , as one did in support of his motion for a new trial, that “Christian’s fo rearm abrasions were unlikely to have been7 from a hammer, and more likely have to ha ve been from a fall in to the bushes (as
Christian described).” As noted above, no one dis puted that the injuries to Christian’s arms were possibly consistent with falli ng into a bush. Expert testimony was not necessary to establish that fact. More impor tantly, the relevance of the injuries to Christian’s arms was minimal, in contrast to the significance of the injury to her leg. The undisputed evidence established that the waffle pattern of th e injuries on Christian’s leg was consistent with the waffle pattern on th e hammer found in defe ndant’s truck. Even the defense expert whose declaration was su bmitted in support of defendant’s new trial motion opined that Christian had “a patterned abrasion consis tent with the head of the hammer shown in the photographs” and agreed with the prosecution’s expert that the injuries “were high impact . . . , which is also consistent with the velocity that may be applied by a hammer.” The defens e expert’s opinion that the thigh injuries could have occurred two to three days before they were photographed does not necessarily corroborate Christian’s testimony at the prelimin ary hearing that she suffered the injuries in a fall the night before. As the expert expl ained, “[t]he fall described by Ms. Christian in the hotel room or the multiple falls betw een the restaurant and the hotel as possible events from which this injury occurred, but the pattern would need to be matched to an item in the room or on the path and a better de scription of the fall would be necessary to
determine if it was consistent with the ab rasion.” Christian’s explanation was largely unreliable and was refuted by O’ Connor’s testimony that he searched the hotel after the incident but was unable to find any hard object with a similar waffle pattern that might have caused the injuries. Accordingly, defendant’s claim of ineff ective assistance of counsel based on his trial attorney’s failure to obta in and use the transcript from th e prior trial fails for lack of any possible prejudice.
2. Motion for Continuance
Defendant contends the tria l court wrongly denied his motion for a continuance of the trial. The original trial date in this action was vacated because defendant was in custody in San Francisco following the Ma rch 2011 incident. Following defendant’s8 conviction and sentencing in Ma y 2012, defendant’s attorney in the San Francisco case was relieved and attorney Jeffrey Hayden wa s appointed to represent defendant. On August 17, 2012, Hayden’s u nopposed motion for a continuance was granted. Trial was set for October 15, 2012. On October 15, 2012, Hayden made a mo tion before the crimin al presiding judge for an additional continuance. He explained th at he had only been appointed in July 2012
and that until that time no inve stigation had been conducted in what was then a two-year old case. He had been tryi ng since August to locate potential witnesses, including Christian, but had been largely unsuccessf ul. Recently, however, his investigator had tracked down two potential witnesses and he n eeded the continuance to complete that investigation. The presiding judge denied th e motion on the ground that two months was “more than ample time” to have found the pot ential witnesses and assigned the case to a
courtroom for trial. That afternoon, Hayden re newed his request for a continuance before the trial judge. He reiterated that he had been ap pointed only three months earlier and had received an incomplete file. He explained that because most of the witnesses were either transients or hotel guests it was very difficult to locate them two years after the incident. He indicated, however, that he had “reason to believe” that his investigator will find two potential witnesses “in reasonably short stead” because the investigator had obtained a phone number for one of th e witnesses through a housin g services agency and the investigator was in contact w ith that witness’s family. With respect to the relevance of these witnesses, he stated: “O ne of the witnesses had called Mr. McCowan . . . the night
before to alert him to . . . not only the fact that the victim had been injured that she had been in a fight the night before with other guests at the hotel, but also to her drunkenness the night before . . . . [¶] On e of the witnesses . . . would have been in a position to observe that and would be a percipient witn ess for the defense.” The trial judge also denied the continuance, noting that the case had been on the trial calendar for two months and the criminal presiding judge had also denied the request for a continuance earlier that morning.9 Defendant contends the tr ial judge abused his discre tion in denying defendant’s
October 15 motion for continuan ce. “A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) Whether good cause exists is a question for the trial court’s discretion. [Citation.] The court mu st consider ‘ “ ‘not only the benefit which the moving party anticipates but also the lik elihood that such be nefit will result, the burden on other witnesses, jurors and the cour t and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” ’ ” ( People v. Doolin (2009) 45 Cal.4th 390, 450.) “A reviewing cour t considers the circumstances of each case and the reasons presented for the request to de termine whether a trial court’s denial of a continuance was so arbitrary as to deny due process. [Citati on.] Absent a showing of an abuse of discretion and prejudice, the trial court’s denial does not warrant reversal.” ( Ibid .) Initially, we reject defendant’s argument th at the trial judge failed to exercise his independent judgment in denying the continua nce. Although the trial judge cited the presiding judge’s order in explaining his ruling, his decision was not, as defendant suggests, based “entirely” on the presiding judg e’s decision. The trial judge indicated that he was in agreement with th e conclusion of the presiding judge that two months was adequate time to have investigated this case. A party who seeks a continuance to secure the attendance of a witness must show that he has exercised diligence to secure the witness’s attendance, that the expected testimony by the witness is material and not cumulative, that the witness can be obtained within a reasonable time, and that the fact s to which the witness will testify cannot otherwise be proven. ( People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Here, although Hayden claimed that he wa s diligently searching for th e witnesses and thought his investigators had a lead on one or two potential witnesses, he failed to show that these
witnesses could be obtained within a reas onable time. Moreover, defense counsel’s argument did not indicate that these witnesse s would provide signif icant, non-cumulative testimony. Defendant did not asse rt that the witnesses saw th e incident in question. He indicated only that they might be able to corroborate Christian and Raymal’s testimony10 that Christian was drunk the night before and suffered some injuries as a result of a fall that night. In light of the marginal relevance of such testimony, the trial court’s denial of defendant’s request for a continuance did not exceed “the bounds of reason, all circumstances being considered.” ( People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) Finally, even assuming the court should have granted the continuance, defendant fails to show that he was prejudiced by th e absence of these witnesses at trial. ( People v. Gonzalez (2005) 126 Cal.App.4t h 1539, 1549, citing People v. Watson (1956) 46 Cal.2d 818, 836 [to establish prejudice, a defendant must show that if the continuance had been granted, a more favorable outcome probably woul d have resulted].) Defendant does not offer any argument in his opening that he suffe red any prejudice as a result of the absence of these witnesses. Rather, he suggests that the denial of the continuance prevented his attorney from locating Christian, hiring an expert, and preparing Raymal for his testimony. He argues that by fo rcing his attorney to trial when he was inadequately prepared, the court violated his federal cons titutional rights to a fair trial and effective representation of counsel. ( People v. Fontana (1982) 139 Cal.App.3d 326, 332-333.) Hayden, however, did not seek a continuance ba sed on his general lack of preparedness. To the contrary, Hayden specif ically stated that “if ther e was no likelihood of reaching these two witnesses, I wouldn’t be making th e motion.” Thus, the record fails to support
defendant’s claim that the denial of the continuance forced Ha yden to participate in a trial for which he was not prepared.
3. Marsden Motion Following the denial of the motion for a continuance, defendant made a motion for substitution of appointed counsel. In writt en briefing, defendant faulted Hayden for refusing to file a motion attacking his prior counsel and accused Hayden of “advocate[ing] for the prosecution” by encourag ing him to waive time before trial. He also claimed that Hayden’s investigator had not interviewed de fendant until September 24, three weeks before trial. At the hearing, defendant claimed Hayd en had not given him copies of the defense files he had requested and challenged Hayden’s refusal to file11 Romero 3 and Pitchess 4 motions. He repeatedly claimed th at Hayden was not prepared for trial, noting that he sees Hayden only on and around court dates. Finally, defendant challenged Hayden’s failure to oppose a moti on to amend the complaint that had been made and granted that morning. In response, Hayden admitted that he ha d not seen defendant since late August, but explained that he had visited the jail on se veral occasions, including at least once with the investigator, and been told that defendant was not available because he was in the law library. With respect to defendant’s concern about the investigation, Hayden explained that he was doing what he coul d. He noted that although his investigator had not met with
defendant until three or four weeks before tria l, he had begun workin g on the case before then. There were “additional things to do” an d meeting with defendant was not “his first stop.” He explained that a Pitchess motion was not appropriate because the percipient witnesses were the key to the case, not the peace officer witn esses, and that the time to
file a Romero motion is before sentencing, not before trial. In response to a question by the court, counsel clarified that the amende d information was not objectionable because it merely corrected a mischa rged prior conviction from the initial information.
The court denied the motion on the basi s that counsel was “a very experienced defense attorney” and his analysis of the ap propriate nature and timing of motions was
correct. The court concluded that there had b een no “ineffective assi stance of counsel nor a denial of due process” based on the record be fore the court. As the courtroom was being reopened, defendant stated, “Excuse me, your honor. There was one thing else and it just
dawned on me when I was look ing at the paper. As far as the expert witness, you know, the prosecution has a witness who came and tes tified to some photos that was taken. No medical reports or none of that. I don’t even have an expert witness to, you know, to deny
whatever statements were made. And I was as king him about that part of it too. I mean, you know, they have someone who’s already taken the stand and testified that, you know,

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.12 injuries that they seen from a photo were su stained from the time I came back which 30 minutes . . . .” The court interrupted defendan t and advised him to be “guarded” in what he says because the courtroom was already op en. The court added, “If there is further motion with regard to an expert witness, that’s something that we can hear at a later time . . . and it’s something that of course your attorney can bring up as a motion or in response to a motion.” Defe ndant responded, “Okay.”
Defendant contends the c ourt erred by failing to make the required inquiry into his stated concerns and by concluding th at Hayden’s representation was adequate. We
review the denial of a Marsden motion for an abuse of discretion. Denial of the motion is
not an abuse of discretion “ ‘ “unless the de fendant has shown that a failure to replace counsel would substantially impair the defend ant’s right to assistance of counsel.” ’ ” ( People v. Streeter (2012) 54 Cal.4th 205, 230.) “A de fendant is entitled to relief if the record clearly shows that th e first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective repr esentation is likely to result [citation].” ( People
v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other grounds in People v. Craytor (2002) 28 Cal.4th 346, 364–365.) Contrary to defendant’s assertion, the c ourt’s inquiry into defendant’s complaints about Hayden’s representation was sufficient. Defendant faults the court for failing to inquire into defendant’s “compla ints that Mr. Hayden was a dvocating for the prosecution; not providing any defense and not prepared for trial; not providing [defendant] with critical documents; and not consulting an injury expert.” As discussed above, the court inquired about the assertion that Hayden was helping the prosecution by not opposing the amendment of the information. Although the court did not specifically address defendant’s claim that Hayden had urged him to waive time for the benefit of the prosecution, no inquiry was necessary as the wa iver was clearly necessary in light of his requests for continuances. The court had no opportunity to inquire as to defendant’s comments regarding the expert witness as th e motion had already been denied and the courtroom reopened. Following his comments quoted above, defendan t did not raise the13 issue again that day. Finally, nothing in defendant’s comments indicated a substantial breakdown in the attorney-client relationship so that there was no need to inquire into “the possibility of an irreconcilable conflic t.” Rather, it appeared from defendant’s
comments that he was concerne d about the adequacy of Hayd en’s investigation and some of his strategic decisions, but these concerns were sufficiently ad dressed by counsel and
the court.
Defendant’s reliance on People v. Munoz (1974) 41 Cal.App.3d 62 is misplaced. In that case, the defendant comp lained to the court that his counsel did not want to defend him and he requested appointment of substitu te counsel. These co mplaints raised the
issue whether defense counsel had become so convinced of the defe ndant’s guilt that he was unable to defend him vigorously. ( Id . at pp. 64–65.) Despite such serious allegations,
the court did not conduct a Marsden hearing and it made no inquiry at all of the defendant or his counsel. ( Id. at pp. 65–66.) The appellate court held that the trial judge’s “ruling denying appellant’s reque st for a substitution of attorney s, without an inquiry into the state of mind of the court-appointed atto rney and without attempting to ascertain in what particulars the attorney was not provid ing appellant with a competent defense was tantamount to a refusal on the part of the court to adjudicate a fundamental issue.” ( Id . at p. 66.) In contrast, as discu ssed above, the trial judge in this case did inquire into defendant’s concerns and expressly conclude d that the counsel was providing adequate representation. The court’s conclusion that counsel was pr oviding adequate representation is not, as defendant suggests, undercut by an “adm ission” by Hayden that he was unprepared
and had not conducted an ad equate investigation. Counsel did not make any such
admission either at the Marsden hearing or in requesting a continuance. Taking all of
counsel’s comments into consid eration, including those made in support of the October continuance motion, the record establishe s that while he would have preferred a continuance to locate the two po tential witnesses and conduct additional investigation, he was otherwise prepared to go to trial.14 Likewise, the record does not support de fendant’s assertion that the trial court improperly relied on “the court’s courtroom ob servations and previous experience with, and confidence in, Mr. Hayden.” The court’s observations that he knew Hayden to be a very experienced attorney was but one part of the court’s explanation for denying the
Marsden motion. Defendant’s reliance on People v. Hill (1983) 148 Cal.App.3d 744, 753–755, is entirel y misplaced. In Hill , the trial court did not make an inquiry into the defendant’s complaints concerning counse l but improperly relied exclusively on the court’s prior experience with the a ttorney to summarily deny defendant’s Marsden motion. Here, as described above, the tria l court did not summar ily deny defendant’s
Marsden motion based simply on the court’ s prior experience with Hayden.
4. Prosecutorial Misconduct Following defendant’s identif ication by a witness at tr ial, counsel asked if the
record could reflect that defendant was hol ding a pencil in his le ft hand and had been taking notes with that hand. The court agreed the “record will so reflect.” Defense counsel did not object. On appeal, defendan t contends that the prosecutor’s request
constituted misconduct because it diluted the re quirement of proof beyond a reasonable doubt and violated his rights to due pr ocess and to avoid self-incrimination. Acknowledging that his attorney did not object, he also asse rts that the failure to object
constituted ineffective assistance of counsel.
Defendant cites Courson v. Florida (Fla.App. 1982) 414 So.2d 207, 208, in which the court observed that “it is inappropria te for a prosecutor to attempt to transform his own, often unshared, cour troom observation into an evidentiary fact” by asking that the record reflect that defendant was writing with his left hand in court. However, the court in that case also found no prejudicial error, explaining “that the prosecutor could have sought by appropriate means to prove th e undisputed issue of the defendant’s lefthandedness (for example, by requesting the cour t to have the defendant demonstrate this physical characteristic in the jury’s presen ce) without implicating, much less offending, any right of the defendant not to incriminate himself.” ( Ibid. , fn. omitted; see also People
v. Davis (2009) 46 Cal.4th 539, 611-612 [forced in-court display of defendant’s tattoos15 does not violate due process]; People v. Sims (1976) 64 Cal.App.3d 544, 552 [“the privilege against self-incrimination ‘offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance , to walk, or to make a particular gesture.’ [Citations] Forced exhibition of ‘real or ph ysical’ evidence, such as of a physical characteristic, does not constitute a fundamen tal unfairness which is a violation of due process, and the voice ‘is merely another identifying physical characteristic.’ ”].) A defendant’s left-handedness is not meaningfu lly different from his voice or gait. Given
that the evidence could have been introduced in another, undoubtedly more timeconsuming way, it is likely th at counsel made a reasoned decision not to object for that reason. In any event, the failure to object was certainly harmless.
5. New Trial Motion
Defendant submitted a new tr ial motion alleging ineffec tive assistance of counsel on five grounds: (1) failure to assert statutor y speedy trial rights; (2) failure to obtain the transcripts of the prior San Francisco trial; (3) failure to investigate th e case; (4) failure to consult with an injury exper t; and (5) failure to bring a motion to dismiss pursuant to section 1118.1 concerning the priors. The tr ial court denied the motion in its entirety. 5
Defendant contends the court erred in failing to rule on hi s claim that the failure to retain an injury expert amounted to ineffectiv e assistance of counse l. He argues that the
court’s “failure to rule on this issue cons titutes error requiring reversal and a remand.” The court did, however, rule on defendant’s motion and implicit in the denial of the motion is a finding that the alleged failure to consult an injury expert did not amount to prejudicial ineffective assistance of counsel. ( People v. Carpenter (1999) 21 Cal.4th 1016, 1046 [“ ‘An order is presumed correct; a ll intendments are indulg ed in to support it
on matters as to which the record is silent , and error must be affirmatively shown.’ [Citation.] We must ‘view the r ecord in the light most favorab le to the trial court’s ruling

5 In denying the motio n the court commented on the firs t three alleged instances of ineffective assistance but did not refer e xpressly to the fourth and fifth grounds.16 and defer to its findings of historical fact , whether express or implied, if they are supported by substa ntial evidence.’ ”]; Jie v. Liang Tai Knitwear Co . (2001) 89 Cal.App.4th 654, 666–667 [“Imp licit in the order denying the motion for a new trial is a finding that the declarant wa s not credible. [Fn. omitted.] Such an implicit finding is sufficient to support the trial court’s or der denying the motion for a new trial.”].) 6 In any event, defendant was not prejudiced by the lack of an express finding. As discussed above, at most, a defense inju ry expert would have offered testimony supporting Christian’s claim that the scratche s on her arms were caused by her fall into
the bushes and were not defens ive wounds caused by the claw of the hammer. This testimony, however, would not ha ve contradicted the expert testimony that the waffle pattern injuries on Christian’s leg were consistent with th e hammer found in defendant’s truck and the eyewitness testimony that defenda nt struck Christian repeatedly with a hammer-like object. There is no reasonable like lihood that defendant was prejudiced by the absence of expert testimony, and the cour t did not abuse its discretion in rejecting
defendant’s claim of ineffective assistance of counsel in denying the motion for a new
trial.
Disposition The judgment is affirmed.

6 Defendant’s reliance on People v. Braxton (2004) 34 Cal.4th 798 is misplaced. In that case, the court held that a defendant is en titled to a new trial “when the trial court has refused to hear or neglected to determine a defendant’s motion for a new trial” upon a showing “that the defendant’s new trial motion wa s meritorious as a matter of law, or the record shows that the trial court would have granted the new trial motion and the reviewing court properly determines that th e ruling would not have been an abuse of discretion.” ( Id . at p. 817.) The trial court did not refu se to hear or neglect to determine defendant’s motion in this case.17 _ ____________ ____________ Pollak, Acting P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.