1 Filed 7/31/14 P. v. Moore CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. LOUIS JEFFREY MOORE, JR., Defendant and Appellant. E057475 (Super.Ct.No . FVA901440) OPINION

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistan t Attorney General, a nd Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.2 After defendant Louis Jeffrey Moore, Jr. and his girlfriend got into a drunken argument, he shot her three times, killing her. When the police interviewed him, he admitted knowingly shooting her. At trial, however, he testified that he blacked out; when he came to, he was partially blind. He heard what he thought were “attack[ers]” moving around in the kitchen. He fired blindly, intending only to scare them away. A jury found defendan t guilty of first degree murder(Pen. Code, § 187, subd. (a), 189) with an enhancement fo r causing death by personally discharging a firearm (Pen. Code, § 12022.53, subd. (d)). Defendant was sentenced to a total of 50 years to life in prison. In this appeal, defendant contends: 1. The jury instructions erroneousl y failed to define second degree murder. 2. The jury instructions erroneously sugg ested that, for provoc ation to reduce first degree murder to second degr ee murder, it must meet a reasonable person standard. 3. The trial court erred by admitting de fendant’s ex-wife’s testimony about one particular prior threat that he made to her. 4. The trial court erred by denying defendant’s post-trial Marsden motion to the extent that it was based on defense counsel’s failure to obtain a psychological evaluation. We find no error. Hence, we will affirm.3 I FACTUAL BACKGROUND A. Third-Party Witnesses’ Accounts

. As of August 2009, defendant’s girlfriend, Jillian White, was living with him off and on. They occupied an upstairs ap artment in a fourplex in Fontana. White drank every day. Sometimes when sh e drank, her “demeanor” got “nasty.” Defendant also drank occasionally. Neighbors often heard them arguing. There were complaints abou t White banging on the door, trying to get defendant to let her in. On one occasion, paramedics were seen help ing White downstairs; she had bruises on her arm. On two occasions, the po lice were called; the first time, they asked White to leave, and the second time, they ar rested her. One neighbor overheard White saying, “I want to kill my boyfriend by throwing him do wn a flight of stairs[.]” Margaret Delgado and her husband Fred die Delgado owned the fourplex and lived there as well. On the night of August 26-27, 2009, they were hanging out in the garage, directly under defendant’s apartm ent. Around midnight, they heard what sounded like marbles falling on to defendant’s tile floor. Freddie heard a “thump.” Margaret heard a sound like furniture being dragged. Margaret phoned defendant and asked “Is everything okay up there?” Defendant sounded a “little bit” drunk. He said, “Yeah, everything is okay, we ’re just sitting here, [we] had an argument . . . .” He then volunt eered that he did not have any guns, knives, or weapons, and he was not a violent person. He added that White might be pregnant and4 “was having some little issues.” White could be heard in the background, talking in a loud voice. Stephanie Sierra and her daughter, Sara Pena, lived in the apartment next to defendant’s. They heard defendant and White arguing. At one point, Pena heard White yell, “Oh my gosh[,] what are you doing?” Then both Sierra and Pena heard three gunshots. The first two shots were close toge ther, but there was a brief pause before the final shot. Margaret, Sierra, and a third neighbor a ll heard something fall onto the dirt below defendant’s balcony. Sierra made out tw o separate sounds — a sound like a duffel bag falling, followed by a sound like a person jumping ove r the balcony. When the police arrived, th ey found White’s body lyin g on the kitchen floor. She had been struck by three bulle ts. One entered her back on an upward trajectory; one entered her back on a steep downward trajecto ry; and one entered her front left shoulder. Two of the three bullets caused internal blee ding, which in turn caused unconsciousness and death. White’s blood alcohol level at the time of death was 0.32 percent. A rifle was lying on the floor in the middl e of the living room. It held one spent casing in the chamber and two unfired rounds in the magazine tube. There were two more spent casings on the floor. A police officer who was familiar with that make and model of rifle testified that it has a safety. Moreover, it has to be cycled manually using a lever. The lever ejects any spent casing and moves a fresh round from the magazine tube into the chamber. Thus,5 “[i]t takes a deliberate action every time that you fire . . . .” The officer demonstrated the lever action for the jury. Around 12:30 p.m., the police spotted defend ant walking north on Market Street in Riverside. They followed him; when they caught up with him, he was sitting on a bench in front of City Hall. Th ey promptly arrested him. B. Defendant’s Statement to the Police

. Defendant was Mirandized and gave police the following statement. At the time of the shooting, defendant was drunk. He had had four or five shots of vodka, half a pint of cognac, and three beer s. He was also smoki ng marijuana. White, too, was drunk. Defendant believed she was an alcoholic. They got into an argument. At one point, defendant told White to stop drinking and smoking because she was pregna nt (or so she had told him). 1 He grabbed her cigarette. White said she was going to call the police. Defendant picked up her cell phone and threw it at her. However, the battery was missing. She accused defendant of taking it. She started screaming, “[G]ive me my battery or I’m gonna call the police.” Defendant said, “[L]et me give [you] a reason to call them.” Defendant went and got his rifle from hi s bedroom. He did not remember loading it. As he came back around the corner, White was facing hi m; he cocked the rifle and

1 Defendant had had a vase ctomy. He claimed that he nevertheless believed that White was pregnant and that he was the father, because he had heard that “after 10 years or so it can go back together.” The au topsy physician did not testify as to whether White was actually pregnant or not.6 pulled the trigger. He did not remember how many times he fired. He saw White fall; then he left. He walked fro m Fontana to Riverside. When he saw police activity, he knew they were looking for him, so he went to City Hall and waited for them to find him. C. Defendant’s Testimony at Trial

. Defendant gave the followi ng account at trial. About a week before the sh ooting, White told him that “some guy named John . . . was going to kill [defendant] becaus e [defendant] took his girlfriend.” On the day of the shooting, both defendant and White were drinking. When White drank, she wanted to argue and fight. White said she was going to call John “and tell him to come over and teach [defendant] a lesson.” Defendant drank so much that he blacked out. When he woke up again, he was partially blind. He could not see anything at eye level; if he looked down, he could see “the ground, maybe three feet ahead . . . .” He concluded that he had been “attacked.” He heard what sounded like “m ore than one [person]” moving around in the kitchen. He got his rifle, which was alrea dy loaded, and stood in the door way. He was thinking, “I can scare them out of the house.” According to defendant, he did not have to turn off the safety ; “when you grab the weapon, . . . [the safety] automatically goes of f.” He cocked the hammer and fired. He did not aim. He did not reme mber how many times he fired. He could not see White until she “dropped into [his] vision . . . .” He checked her for breathing and a pulse, but found neither. He left the apartment. The next thing he7 knew, he was walking into Rive rside. After seeing himself on the news on television, he went to City Hall to turn himself in. D. Prior “Bad Acts” Evidence. Kimberly White was defendant’s ex-girl friend; she had lived with him from 2000 to 2005. She testified that he was usually “high or drunk or both.” He was verbally abusive “all the time.” He wo uld “get into altercations with people unnecessarily.” In May 2005, during an ar gument, defendant grabbed her and “slammed” her to the floor “with force,” hurting her ear. He pu nched the floor. Next, he pulled two phones out of the wall. When she called 911 on a cell phone, he ran away. Calynn Taylor Moore was defendant’s ex-w ife. They were married from 1993 to 2002. In January 2000, he got angry with her an d told her to stop the car she was driving and let him out. After getti ng out, he punched the drive r’s side door of the car. In October 2000, while speaking to her “i n a hostile manner,” he punched the sofa she was sitting on. In Spring 2001, after cursing at her and calling her names, he said, “I would bust you in your MF-ing mouth if it wasn’t for the fact that I know you would blow my brains out.” After the marriage ended, Taylor Moore attempted to get a restraining order against defendant. While in court, the judge as ked him to identify her; he replied that “he wouldn’t recognize [her] unless [she] had a bullet hole.” Defendant “rant[ed]” for8 awhile, then left the courtroom. About an hour later, three bailiffs escorted her to her car. She testified, “By then, I had fear, big fea r, that I would be snipered by [defendant].” II JURY INSTRUCTIONS ON SECOND DEGR EE MURDER Defendant contends that the st andard jury instructions, as they stood at the time of trial, failed to define second degree murder. A. Additional Factual and Procedural Background

. With regard to first and second degree murder, the jury wa s instructed with CALCRIM Nos. 520, 521, and 522. CALCRIM No. 520, as relevant here, info rmed the jury that murder requires express or implied malice; it defined both concepts. It then provided: “If you decide that the defendant comm itted murder, you must then decide whether it is murder of th e first or second degree.” CALCRIM No. 521, as relevant here, define d first degree murder. It informed the jury that first degree murder requires deliberation and premeditation, which it defined. It also provided: “The People have th e burden of provi ng beyond a reasonable doubt that the killing was first degree murder, rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”9 CALCRIM No. 522 provided: “Provocation may reduce [a] murder fro m first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. “If you conclude that the defendant committ ed murder but was provoked, consider the provocation in deciding whet her the crime was first or s econd degree murder. Also, consider the provocation in deciding whether the defend ant committed murder or manslaughter.” During its deliberations, the jury sent out the following question: “We are seeking clarification on the re quirements to move from murder one to murder two. If we are not unanimous on mu rder one, do we move to murder two?” The trial court responded: “For definitions of murder and degrees of murder[,] please refer back to CALCRIM 500, 520, 521 & 522. “I cannot tell you the order in which to consider the possible verdicts (see CALCRIM 640). You may consider each crime in whichever order you choose. However, I can only accept a guilty verdict of a lesser included o ffense if you have unanimously acquitted the defend ant on the greater offense.” B. Analysis

. Defendant argues that, while the instructions stated that a murder in the absence of deliberation and premeditation is not first degree murder, they failed to state that it is10 second degree murder. As he points out, after the trial in this case, CALCRIM Nos. 520 and 521 were amended to make this explicit. “When considering a claim of instructional error, we view the challenged instruction in the context of th e instructions as a whole and the trial record to determine whether there is a reasonabl e likelihood the jury applie d the instruction in an impermissible manner. [Citation.]” ( People v. Houston (2012) 54 Cal.4t h 1186, 1229.) CALCRIM No. 520 stated that, if defenda nt killed another person with malice aforethought, he was guilty of murd er. It also stated that murd er was either of the first or second degree. CALCRIM No. 521 then stated that, if the People proved that defendant was guilty of murder, and also proved that defenda nt acted “willfully, deliberately, and with premeditation,” defendant was guilty of fi rst degree murder. It necessarily followed that, if the People pr oved that defendant wa s guilty of murder, but failed to prove that defendant acted “willfully, deliberately, and with premeditation,” defendant was guilty of second degree murder. Would it be better to have stated this e xplicitly? Sure. Which is undoubtedly why the Judicial Council subsequently amende d the instructions. Nevertheless, the instructions as given were accurate and co mplete. Their only flaw was that they conveyed this one particularpoint by necessary implicati on, rather than explicitly. Hence, this case comes within the rule that “[g]enerally, a party may not complain on appeal that an instruction correct in law and responsive to the evid ence was too general or11 incomplete unless the party has requested appr opriate clarifying or amplifying language. [Citation.]” ( People v. Castaneda (2011) 51 Cal.4th 1292, 1348.) Defendant also notes that CALCRIM No. 5 22, dealing with pr ovocation, referred explicitly to second degree murder. He argue s that the jury would have concluded that the only way it could find second degree murder was by also finding provocation. Again, however, this overlooks the necessary imp lication of CALCRIM No. 521. CALCRIM No. 521 made it clear that first degree murd er requires premeditation and deliberation. Thus, the jury would have un derstood CALCRIM No. 522 to mean that provocation can reduce murder from first degree to second degree because it shows lack of premeditation and deliberation. III JURY INSTRUCTIONS ON PROVOCATION Defendant contends that the standard jury instructions erroneously suggested that provocation must be reasonable to reduce firs t degree murder to second degree murder. A. Additional Factual and Procedural Background

. As already mentioned (see part II, ante ), the jury was instru cted on provocation using CALCRIM No. 522, which stated, as relevant here: “Provocation may reduce [a] murder from fi rst degree to sec ond degree and may reduce a murder to manslaughter.” The jury was also instruct ed on voluntary manslaught er using CALCRIM No. 570, which stated, as relevant here:12 “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a s udden quarrel or in the heat of passion. “The defendant killed someone because of a sudden quarrel orin the heat of passion if: “1. The defendant was provoked; “2. As a result of the provocation, th e defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; “AND “3. The provocation would hav e caused a person of av erage disposition to act rashly and without du e deliberation, that is, from pa ssion rather than from judgment. [¶] . . . [¶] . . . “It is not enough that the defendant simp ly was provoked. The defendant is not allowed to set up his own standard of conduc t. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, cons ider whether a person of aver age disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. [¶] . . . “The People have the burden of provi ng beyond a reasonable doubt that the defendant did not kill as the re sult of a sudden quarrel or in the heat of passion. If the People have not met this bur den, you must find the defenda nt not guilty of murder.” (Italics added.)13 B. Analysis

. Provocation is an element of “heat of passion” voluntary manslaughter. “‘[T]he factor which distinguishes the “heat of passion” form of voluntary manslaughter from murder is provocation . . . .’ [Citation.]” ( People v. Moye (2009) 47 Cal.4th 537, 549– 550.) To reduce a murder to voluntary manslaughter, the provocation must meet an objective standard of reasonableness. “Objectiv ely, the victim’s conduct must have been sufficiently provocative to cause an ordinary person of aver age disposition to act rashly or without due deliberation and reflection. [Citation.]” ( People v. Enraca (2012) 53 Cal.4th 735, 759.) However, it has long been held that “the ‘“existence of provoc ation which is not ‘adequate’ to reduce the class of the o ffense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, delib eration and premeditation”’ — an inquiry relevant to determining whether the offense is premed itated murder in the first degree, or unpremeditated murder in the s econd degree. [Citation.]” ( People v. Carasi (2008) 44 Cal.4th 1263, 1306.) In other words, the provocation necessary to reduce first degree murder to second degree murder does not have to pass an objective test. ( People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295–1296.) “The issue is whether the provocation precluded the14 defendant from deliberating. [Citation.] This requires a determinati on of the defendant’s subjective state.” ( Id . at p. 1295.) Defendant notes that CALCRIM No. 570 sp ecifically provided that provocation must meet a reasonable person standard for the purpose of reducing murder to manslaughter. Defendant therefore argues th at the jury would have concluded that provocation must likewise meet a reasonable person standard for the purpose of reducing first degree murder to second degree murder. Recently, in People v. Jones (2014) 223 Cal.App.4th 995 , the court rejected an identical argument. It stated: “[T]he instruct ions are correct. They accurately inform the jury what is required for first degree murder, and that if the defendant’s action was in fact the result of provocation, that level of crime was not committed . CALCRIM Nos. 521 and 522, taken together, inform ed jurors that ‘provocation . . . can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.’ [Citation.] As the jury also was instru cted, a reduction of murder to voluntary manslaughter requires more. It is here, and only he re, that the jury is instructed that provocation alone is not enough for the reduction; the provocation must be sufficient to cause a person of average disposition in the same situation, knowing th e same facts, to have reacted from passion rather than judgment.” ( Id . at p. 1001.) We likewise reject defendant’s contention.15 IV THE ADMISSION OF DEFENDAN T’S EX-WIFE’S TESTIMONY ABOUT DEFENDANT’S CONDUCT AT A RESTRAINING ORDER HEARING Defendant contends that th e trial court erred by adm itting his ex-wife’s testimony about a restraining order hearing after their di vorce. As noted earlier, defendant said at the hearing that “he wouldn’t recognize [her ] unless [she] had a bullet hole.” She also testified that, when she left, she was afraid that he would “sniper[]” her. A. Additional Factual and Procedural Background

. The prosecution filed a motion in limine to introduce evid ence of prior “uncharged acts” that defendant had committed agains t his ex-girlfriend and his ex-wife. Regarding the ex-wife, the prosecution stated : “She will . . . testify that during the marriage, there w[ere] repeated verbal thr eats against her by the defendant and he . . . attempted to strike her on more than one occasion. She believes that defendant was capable of killing her. After the divorce, th e defendant continued to make threats and harassing phone calls.” During the hearing on the motion, defens e counsel argued that the ex-wife’s statements were not trustworthy. The trial court indicated that it was “c oncerned” about the ex-wife’s testimony because it was “remote.” It was also con cerned about letting her testify that she was afraid of defendant unless she explained why she was afraid.16 It ruled that it would not admit evidence of any incidents more than 10 years before the crime. Otherwise, however, it ru led that the ex-wife’s testimony was not more prejudicial than probative. B. Analysis

. We begin by pointing out what defendant is not arguing. First, defendant is not challenging any of his ex- girlfriend ’s testimony. Second, he is not challenging any of his ex-wife’s testimony other than her testimony about the restraining order hearing. Third, he does not dispute that her testimony abou t the restraining order hearing was generally admissible under Evidence Code section 1101, subdivision (b) and/or section 1109. His sole argument is that his ex-wife’s testimony about the restraining order hearing should have been excluded under Evidence Code section 352. Defense counsel forfeited this argument, however, by failing to object to this particular evidence on this par ticular ground. (Evid. Code, § 353, subd. (a).) Admittedly, the trial court did consider admissibility under Evidence Code section 352 sua sponte. At that point, however, it had to consider this is sue in light of the prosecution’s offer of proof, which referred only to “threats.” It had no opportunity to consider defendant’s present contention about the uniq ue prejudicial nature and lack of probative value of this particular testimony. (See People v. Solomon (2010) 49 Cal.4th 792, 821 [“A motion in limine can preserve an appellate claim, so long as the party obje cted to the specific evidence on the sp ecific ground urged on appeal at a time when the court could determine17 the evidentiary question in the proper context.”].) Defe nse counsel could have objected when the testimony came out during trial, but did not. Defendant argues that any such forfeiture constituted ineffective assistance. “The decision whether to object to the admission of evidence is ‘inherently tactical,’ and a failure to object will rarely reflect defici ent performance by counsel. [Citation.]” ( People v. Castaneda , supra , 51 Cal.4th at p. 1335.) He re, defense counsel was not necessarily aware of th e evidence in advance; 2 that would explai n why he did not specifically object to it during the motion in limi ne. Later, when it came out at trial, he “could . . . have decided that objecting woul d focus the jury’s atte ntion on the threat incident in ways that would not be helpful to the defense.” ( People v. Harris (2008) 43 Cal.4th 1269, 1290.) Even if not forfeited, the contention l acks merit. Defendant argues that the evidence lacked pr obative value because it was not similar to the charged crimes. However, it was similar enough to have proba tive value, because it in volved a threat to shoot an intimate partner. As defendant acknowledges, he adm itted shooting White, so the key issue in this case was his mental state when he shot. The fact that, in the past, when angry with an intimate partner, he had entertained thoughts of shooting her was

2 It is not clear that even the prosec utor was aware that defendant’s ex-wife could offer this testimony. He seems to have expected her to testify to threats that defendant made out of court, during a conver sation or conversations about child custody issues. After the ex-wife testif ied to the incident at the rest raining order hearing instead, he seemed surprised; he asked, “[Was there] any other type of inci dent where he made a threat like that . . . ?” She replied, “N othing comes to memory at this time.”18 significantly probative evidence that he shot White intentionally in this case. Defendant’s ex-wife’s fear that defendant would “sniper[]” her was also significantly probative, because it meant th at someone who knew defendant well understood his threat to be serious. Defendant also argues that the eviden ce was “inflammatory.” However, it involved a mere threat . The jury heard evid ence that, in the current case, defendant not only threatened White, but shot her repeatedly , killing her. Thus, the prior incident pales when compared to the current offense. Moreover, there was ev idence of several incidents in which defendant verbally threatened and/or physically lashed out at his ex-wife and his ex-girlfriend. Against this background, evidence of a si ngle additional threat was not particularly prejudicial. The fact that the trial court was not re quired to exclude the evidence affords a second reason for concluding that defense counsel did not render ineffective assistance — his failure to object was not objectively unre asonable. And the fact that the evidence was not particularly prejudicial affords yet a th ird reason — defendant cannot show that the asserted ineffective assistance had any effect on the outcome. Finally, because the evidence was not partic ularly prejudicial, even assuming the trial court did err, the error was harmless.19 V DEFENDANT’S POST-TRIAL MARSDEN MOTION BASED ON FAILURE TO OBTAIN A PSYCHOLOGI CAL EVALUATION

Defendant contends that the trial court erred by deny ing his post-trial Marsden motion to the extent that it was based on fa ilure to obtain a psychological evaluation. 3
A. Additional Factual and Procedural Background

. Defendant was represented at trial by an appointed member of the conflicts panel. Before sentencing, when th e probation officer interviewed defendant, defendant said he wanted a Marsden hearing. As a result, on the da te set for sentencing, the trial court held a Marsden hearing in camera. 4 The trial court allowed defendant to state all of the reasons w hy he believed he had received ineffective assistance of counsel. One of the many reasons he stated was that defense counsel had never requested a psychological evaluation of him.

3 A “ Marsden motion” is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. ( People v. Marsden (1970) 2 Cal.3d 118.)

4 The reporter’s transcript of the Marsden hearing was filed as confidential. (See Cal. Rules of Court, rule 8.45(b).) In his opening brief, defendant discussed the events at the Marsden hearing and cited the confidential transcript. Defendant di d not seek to file the brief under seal (Cal. Rules of Court, rule 47(b)(3)) and did not op pose the People’s reques t for a copy of the confidential transcript (Cal. Rules of Cour t, rule 8.47(b)(2)(C).) We therefore deem defendant to have waived any claim of a ttorney-client privilege or work product protection for the contents of the transc ript. (Evid. Code, § 912, subd. (a); DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.)20 The trial court then allowed defense counsel to respond. Regarding a psychological evaluation, he st ated, “[T]here were too many downside risks involved there.” He explained that his “greatest fear ” was that a psychologist might conclude that defendant was malingering. He noted that, despite defendant’s claim to have had a blackout, defendant had been able to remember some events before, during, and after the shooting. He added: “[Defendant] knows mo re about that incide nt than what he’s saying. There’s times that he’s telling me what happened. There’s times that he does not remember. However, when th ere’s something that he deems helpful to him, he remembers it and he could tell it to me in very vi vid, articulate detail. . . . [T]hen at other times he does not remember, and he vacillates . . . on these statements at different times.” Defense counsel also stated: “And when th e People, the prosecutor, if they were to get ahold of that information, it is devasta ting to the defense. [¶] [M]y experience has been any time a mental health expert comes in and mentions the word ‘malingering,’ it’s devastating. It’s taken as, ‘Oh, he’s exa ggerating,’ ‘He’s not being truthful,’ ‘He’s trying to use this process to help himself,’ and it does not bode well. I di d not feel it was worth the risk.” Finally, defense counsel was concerned that, if defendant did talk to a psychologist, there might be an i ssue regarding “false evidence.”21 When defense counsel was done, the tria l court allowed defendant to respond. Defendant did not say a nything further about a psychological evaluation. 5 The trial court denied the motion. B. Analysis

. “When a defendant seeks to obtain a new court-appointed counsel on the basis of inadequate representation, the court must perm it her to explain the basis of her contention and to relate specific instances of inadequate performance. The court must appoint a new attorney if the record clear ly shows the current attorney is not providing adequate representation or that defenda nt and counsel have such an irreconcilable conflict that ineffective representation is likel y to result. [Citations.]” ( People v. Rodriguez (2014) 58 Cal.4th 587, 623.) “[A] defendant is entitled to appointment of substitu te counsel upon a proper showing posttrial . . . as well as pretrial.” ( People v. Smith (1993) 6 Cal.4th 684, 692.) “A defendant is entitled to co mpetent representation at a ll times, including presentation of a new trial motion . . . . Thus, when a defe ndant satisfies the trial court that adequate grounds exist, substitute coun sel should be appointed. S ubstitute counsel could then

5 The numerous other grounds th at defendant offered for his Marsden motion are not relevant to this appeal. However, we commend the trial judge (the Hon. Steven A. Mapes) for his careful and methodical co nsideration of all of those grounds. The hearing was “the very model of a modern [ Marsden hearing].” (Gilbert & Sullivan, The Major General’s Song (1879).)22 investigate a possible . . . motion for new tria l based upon alleged ineffective assistance of counsel.” ( Id . at pp. 695-696.) “If the court holds an adequate hearing, its ruling is reviewed for abuse of discretion. [Citation.]” ( People v. Rodriguez , supra , 58 Cal.4th at p. 623.) Defendant argues that defense counsel ’s claimed reason for not obtaining a psychological evaluation was unsound, because, even if the psychological evaluation showed malingering, the prosecution could not obtain it in discovery. Under Penal Code section 1054.3, subdivision (a )(1), the defense is not requir ed to provide an expert’s report in discovery unless it inte nds to call the expert and/or introduce the report at trial. ( Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.) This overlooks the fact that, if the ps ychological evaluation did show malingering, it simply would not be helpfu l to the defense. If, on the other hand, the psychological report did not show malingering, then once defe nse counsel declared hi s intent to call the psychologist as a witness, the prosecution would become entitled to have its own psychologist examine defendant. (Pen. Code, § 1054.3, subd. (b)(1) .) Defense counsel could reasonably be concerned that, even if his own expert f ound no malingering, a prosecution expert might. Defendant also criticizes defense counsel for relying on his ow n nonexpert opinion that defendant was malingering. However, his explanation for suspecting malingering was reasonable, and the trial c ourt could reasonably accept it. Even though he was not a psychologist, he had to make the strategy call one way or another, and in his opinion as23 an attorney, it turned in pa rt on how likely it was that a psychologist would find that defendant was malingering. This is the kind of decision that a nonexpert often has to make in deciding whether to call in an expert. Defendant argues that a psychological evaluation was relevant not only to unconsciousness, but also to intoxication; an expert could have test ified that defendant was, in fact, intoxicated, and could have te stified about the effects of intoxication on deliberation and premeditation. It is not clear, however, what an expert could have added. If the facts were as defendant claime d — i.e., he had consum ed a half pint of cognac, four or five vodka shots, and two or three beers, along with marijuana — it did not take an expert to conclude that he was into xicated. It also did not take an expert to conclude that he would have had a reduced ability to deliberate and premeditate. Finally, an expert would have no magi c way of knowing if defendant’s claim was, in fact, true. 6 Defendant relies on People v. Frierson (1979) 25 Cal.3d 142, which held that trial counsel was ineffective in failing to consult an expert about whether the defendant’s use of PCP and Quaalude would support a defense of diminished capacity. ( Id . at pp. 159- 164.) The court cautioned, however, “We should not be understood as requiring that trial counsel must seek psychiatric or expert advi ce in every case wher ein drug intoxication is a possible defense.” ( Id . at p. 164.) It emphasized that diminished capacity was the “sole

6 During the Marsden hearing, defense counsel revealed that defendant’s blood had been tested 12 hours after the sh ooting, and that the test showed a blood alcohol level of zero.24 defense” ( id . at p. 159), so that the failure to present expert testimony was effectively a failure to present a defense at all. ( Id . at p. 163.) Moreover, the ineffective assistance claim was supported by the declaration of an expert psychologist to the effect that PCP intoxication could mimic schizophrenia. ( Id . at p. 159.) This was testimony that went beyond common knowledge. Indeed, the c ourt stated, “such evidence could not be effectively presented thr ough lay witnesses.” ( Id . at p. 164.) Here, intoxication was not the sole defense and it could be presented ad equately through testim ony by lay witnesses. We therefore conclude that the trial cour t did not abuse its discretion by denying defendant’s Marsden motion. VI DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI J. We concur:

RAMIREZ P. J.

MILLER J.