Filed 4/28/15 P. v. Wilkins CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. KEENAN WILKINS, Defendant and Appellant. A137790
(Alameda County Super. Ct. No. H46293)

Defendant Keenan Wilkins was convicted of several charges arising out of two bank robberies. On appeal, he contends th e trial court erred in finding him mentally competent to stand trial and in fa iling to grant several motions under Faretta v. California (1975) 422 U.S. 806 ( Faretta ) and People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ). We affirm.
I. BACKGROUND Defendant was charged in an informati on, filed February 19, 2009, with three counts of second degree robbery (Pen. Code , § 211), seven counts of false imprisonment by violence (Pen. Code, § 236), and criminal threats (Pen. Code, § 422). As to each robbery and false imprisonment count, the information alleged defendant’s use of a firearm (Pen. Code, §§ 12022.5, subd. (a), 12 022.53, subd. (b)), as well as a series of prior convictions and prior prison terms. A second information, filed July 22, 2009, charged four additional counts of second de gree robbery and alleged the same prior convictions and prior prison terms.2 The two cases were consolidated, and defendant proceeded to jury trial in October 2012. On evidence he had participated in two separate bank robberies in August 2006 and January 2007, defendant was convicted on all counts, but th e jury rejected the allegation of firearm use. 1 He was sentenced to a term of 100 years to life imprisonment.
II. DISCUSSION
Defendant contends the trial court erred in (1) finding him competent to stand trial, (2) denying a motion to repres ent himself at trial, and (3) denying various motions for substitution of appointed counsel by defendan t and for relief from representation by his appointed counsel. He also contends tria l counsel rendered ineffective assistance.
A. Competence to Stand Trial Following his arrest in 2007, defendant was found incompetent to stand trial and was hospitalized for treatment. The next ye ar, he was found competent and returned to jail, but the issue of his competence was neve r entirely absent from the proceedings. In November 2010, counsel declared a doubt as to defendant’s comp etence. Following a series of hearings, the trial court concluded, in essence, that de fendant’s failure to cooperate with his attorney was willful malingering rather than the result of a mental
disorder. Defendant was ex amined for competence again in May 2011, but no further proceedings were held at that time. Defendant’s trial initially be gan in late Septem ber 2011. During jury selection and the early stages of trial, defendant engage d in disruptive courtroom behavior and was eventually muzzled and shackl ed. Nearly two weeks into the trial, defense counsel moved for an examination of defendant’s comp etence, and the trial was suspended. In November 2011, the court began a lengthy ju ry trial of defendant’s competence, which
ended in a mistrial due to jury deadlock. In May 2012, on the day set for retrial of defendant’s competency, his attorney
informed the court defendant “would agree” he was competen t due to the administration

1 We do not discuss the evid entiary basis for defendant’s convictions because it is not relevant to the issues he raises on appeal.3 of medication. Defendant submitted the issue of his competence to the court’s decision on the basis of the evidentiary record fro m the 2011 competency trial. The court subsequently found de fendant competent and reinstated the criminal proceedings. A week into the trial, which began in October 2012, defense counsel raised
“concerns about the defendant’s mental st ate.” Although ackn owledging defendant’s “medicines have clearly mask ed his former utterly irascible personality,” counsel questioned his competence because he had re jected a favorable plea offer, suggesting defendant did not “fully appreciate[] the realit y of his case.” In particular, counsel was
concerned defendant “has no idea how serious the case against him is.” The trial court disagreed, noting defendant “ser iously considered” a 24-year plea offer, illustrating his appreciation of the seriousness of his situati on. The court noted defendant’s failure to grasp “what’s best for him” was not evidence of a lack of competence or irrationality. As to any claim of incompetence, the court held: “I don’t believe your client has any issues along those lines. It is certa inly much easier working wi th him now when he has the drugs he wants. I don’t think he has a pr oblem maintaining unless he chooses to make issues, whatever they may be.” The law related to competence to st and trial was summarized recently in People v.
Sattiewhite (2014) 59 Cal.4th 446: “ ‘ “Both the due process clause of the Fourteenth
Amendment to the United Stat es Constitution and state law pr ohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a ‘ “s ufficient present ability to consult with his lawyer with a reasonabl e degree of rational understanding—[or lacks]
. . . a rational as well as a factual unders tanding of the proceedings against him.” ’ [Citations.]” [Citation.]’ [Citation.] [¶] ‘ “B oth federal due process and state law require a trial judge to suspend trial proceedings an d conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. [Citations.] . . . Evidence of incompetence ma y emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.]”4 [Citation.] . . . [¶] . . . ‘. . . [A]bsent a showing of “incompete nce” that is “substantial” as a matter of law, the trial judge’s decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial.’ ” ( Id. at pp. 464–465.) “ ‘ “An appellate court is in no position to appraise
a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the procee dings, or sheer temper.” ’ ” ( People v. Mai (2013) 57 Cal.4th 986, 1033 ( Mai ).) Once, as here, a competency hearing has be en held with respect to a defendant, the situation changes. “ ‘ “When a competency hearing has already been held and defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it ‘i s presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding.” ’ ” ( People v. Taylor (2009) 47 Cal. 4th 850, 864 ( Taylor ).) In those circumstances, “We apply a deferential st andard of review to a trial court’s ruling concerning whether another co mpetency hearing must be held. [Citation.] We review
such a determination for substantia l evidence in support of it.” ( People v. Huggins (2006) 38 Cal.4th 175, 220.) Prior to trial, the trial court concluded, based on evidence introduced at a lengthy competency trial conducted less than a year earlier, that defendant was competent. Defendant does not specifically challenge that finding or discuss th e evidence presented at the hearing, but it was fully sufficient to support the tria l court’s conclusion. Although the expert testimony presented was mixed with respect to defendant’s competence, at least four experts, Drs. Jessica Ferranti, Ju les Burstein, John Cann ell, and Todd Elwyn,
testified to their conclusions that defend ant was malingering, essentially faking his symptoms of mental disorder. In stipulati ng to a court trial on hi s competence in 2012, defendant agreed the court could rely on the te stimony of these experts, and together their testimony and reports constitute substantial evid ence to support the tria l court’s finding of competence.5 Following the trial court’s finding of comp etence a few months before trial, it was never presented with a demonstra tion of “ ‘ “ ‘a substantial ch ange of circumstances’ ” ’ ” or “ ‘ “ ‘new evidence’ casting a serious doub t on the validity of that finding.” ’ ” ( Taylor, supra , 47 Cal.4th at p. 864.) As note d above, during trial, counsel once questioned defendant’s judgment in rejecti ng a plea deal and evaluating the evidence against him, but a display of poor judgment by defendant was not a new development. (See, e.g., People v. Dunkle (2005) 36 Cal.4th 861, 905, di sapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 [paranoid thinking not a new development]; People v. Lawley (2002) 27 Cal.4th 102, 136– 138 [manifestation of earlier problems not changed circumstances]; People v. Jones (1997) 15 Cal.4th 119, 151, disapproved on other grounds in People v. Hill (1998) 17 Cal.4t h 800, 823 & fn. 1 [recurrence of drowsiness not changed circum stances].) This provided no grounds for reevaluating defendant’s competence. In arguing for incompeten ce, defendant largely cites his extreme behaviors. Standing on their own, these examples prov e little or nothing with respect to defendant’s competence. As the Supreme Court has noted, there is a difference between a defendant’s being “mentally unable , rather than emotionally unwilling , to help with his defense.” ( Mai, supra, 57 Cal.4th at p. 1034.) “We ha ve frequently recognized the
distinction . . . and have made clear that an uncooperative attitude is not, in and of itself,
substantial evidence of incompetence.” ( Ibid. ) On appeal, we have no basis for concluding defendant’s unusua l and erratic behavior was the reflection of a mental disorder rendering him incompetent, rather th an, as the trial court believed, a conscious unwillingness to cooperate. Defendant also argues he was denied pr oper medication and contends he lacked competence without the medicati on. While there were times in the long history of this
case when defendant was not tr eated with the type of medication he believed to be appropriate, defendant was placed on medica tion prior to the Octo ber 2012 trial and appears to have been taking the medication throughout the trial. At the May 2012 hearing, his attorney acknowledg ed that defendant was satisfied with the impact of this6 medication on his mental health. Even if the lack of medication, rather than malingering,
was the cause of defendant’s erratic behavi or prior to and duri ng the suspended 2011 trial, the problem had been cured by the time of the trial at which he was convicted.
B. Faretta Error
Defendant contends the trial court erre d in denying his motion for permission to represent himself, made prior to the 2011 trial that was ultimately suspended. 2 In August 2011, prior to the scheduled start of de fendant’s first trial in September 2011, defendant made two Faretta motions, seeking leave to represent himself at trial. At the hearing of th e first motion, on August 5, de fendant explained he wanted to represent himself because his assigned attorney , although “one of the greatest,” did not
have sufficient time to devote to his case. As the cour t and defendant discussed the advantages of retaining his attorney, it be came clear defendant had made the motion in large part because he was con cerned he could not control his conduct sufficien tly to work with counsel unless he was receiving psychiatri c medication, which had been denied him. Defense counsel, in fact, had filed a moti on to withdraw because, as defendant characterized it, “He’s of the opinion that I n eed meds.” Defendant told the court: “It’s no way I can keep [appointed counsel] without dealing with the medication issue. [¶] . . . [¶] . . . I believe the problem is medication. If I can be evaluated or take medication I believe we can get along.” The court to ld defendant it would not address defense counsel’s motion to withdraw so long as his motion for self-representation was pending. At that, defendant withdrew his motion. The court then denied counsel’s motion to withdraw as untimely, but it ordered that defendant be evalua ted for psychiatric

2 We note that this claim appears to be moot. The Faretta motion was made by defendant prior to the 2011 trial, which was suspended an d never resumed. Defendant was not convicted until after the 2012 trial, which was conducted de novo. Defendant did not renew the motion to represent himself prio r to the 2012 trial, although nothing in the trial court’s 2011 ruling would have preclude d the granting of such a request. Given the intervening 2012 trial, the denial of defendant’s moti on in 2011 had no causal connection to his conviction, and it is by no means clear defendant would be en titled to any practical relief if we found the motion to have been wrongly denied in 2011. Because the Attorney General has not raised the issue of m ootness, we do not address it further.7 medication. As a practical matter, defendant gained the relief he was seeking in what he
had characterized as a Faretta motion. 3 Three weeks later, at a hearing on August 25, defendant presented the court with a second motion to represent himself. By th e time the motion was heard, the case had already been assigned for trial. The court pointed out that, at the time, defendant had not withdrawn his plea of not guilty by reason of insanity and asked whether defendant would prefer to defer his moti on until after the previously or dered psychiatric evaluation, which was scheduled for the following day. The court believed the possible
administration of medication as a result of that evaluation would assist defendant in controlling his disruptive behavior. Defendant insisted on proceeding immediately. A lengthy discussion ensued, during which the court reviewed with defendant, among many other topics, his various legal rights and conf irmed his willingness to waive the assistance
of counsel. When the court asked whether defendant was ready to proceed to trial, defendant equivocated, telling the court, “A s soon as I can get my discovery, yes,” apparently referring to boxes of legal documents in the possession of the sheriff’s office. When the court attempted to cl arify defendant’s readiness, he responded only, “Yes, as soon as I get the tools. I need the discovery . I don’t even have my information, your
honor.” In ruling, the court noted defendant had withdrawn his Faretta request earlier that month and had represented hi mself earlier in the same proceeding, before requesting
counsel. The court also noted defendant had declined to withdraw his insanity plea and had engaged in disruptive behavior during a hearing earlier in the week. The court then denied the motion, explaining: “It appears to be too late. The defendant appears to want

3 Defendant later claimed he was “tricked” into withdrawing his Faretta motion, but the hearing transcript refutes the claim. Yet even if defendant had not withdrawn his Faretta motion, the trial court woul d have been justified in denying it as “equivocal” under People v. Marshall (1997) 15 Cal.4th 1, 20 ( Marshall ), since defendant’s clear preference was to obtain medication and conti nue with representation by counsel, rather than to represent himself.8 to be taking such an inconsistent issue concer ning his mental state, that it would create a unique situation that is very problematic. I don’t know th e law on that, but I do know
that the law on the idea that the conduct he has shown me, arguably, contemptuous, is something I have every right to consider. [¶] The history of the case which suggests repeated stalling tactics, do exist in this case , they are there. Any one of these things would justify to deny, I have all of them.” On September 13, during pretrial mo tions, defendant renewed his request, asserting he would not seek a continuance. The motion was similarly denied.
In Faretta, the Supreme Court held, “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.” ( Faretta, supra, 422 U.S. at p. 817.) Accordingly, “Once a defendant proffers a timely motion to represent himself, the trial cour t must proceed to determine whether ‘he voluntarily and intelligently elects to do so . . . . If these conditions ar e satisfied, the trial

court must permit an accused to represent himself w ithout regard to the apparent lack of wisdom of such a choice and even though the accused may conduct his own defense ultimately to his own detriment.’ ” ( People v. Joseph (1983) 34 Cal.3d 936, 943.) On appeal of a ruling under Faretta , we must review the en tire record de novo to
determine whether the invocation of the ri ght of self-representation satisfied the decision’s requirements, even where the tr ial court has failed to conduct a full and complete inquiry. ( Marshall, supra , 15 Cal.4th at p. 24.) If th e trial court’s stated reason for denying a Faretta motion is found to be improper, th e ruling still will be upheld if the
record as a whole establishes the motion c ould have been denied on an alternative ground. ( People v. Dent (2003) 30 Cal.4th 213, 218.) If err oneous, however, the denial of a proper Faretta request is reversible per se. ( People v. Boyce (2014) 59 Cal.4th 672, 702.) Despite the mandatory language in Faretta , the right of self-representation is not absolute. “[A] Faretta motion may be denied if the defendant is not competent to represent himself [citation], is disruptive in the courtroom or engages in misconduct
outside the courtroom that ‘seri ously threatens the core integr ity of the trial’ [citations],9 or the motion is made for purpose of delay.” ( People v. Lynch (2010) 50 Cal.4th 693, 721–722, disapproved on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 637.) Further, if a Faretta motion is not made “within a reasonable time prior to the commencement of trial,” its allowance is subj ect to the discretion of the trial court. ( People v. Windham (1977) 19 Cal.3d 121, 128, fn. omitte d.) “Among other factors to be considered by the court in assessing such [ untimely] requests . . . are the quality of counsel’s representation of the defendant, th e defendant’s prior pr oclivity to substitute counsel, the reasons for the request, the leng th and stage of the proceedings, and the disruption or delay whic h might reasonably be expected to follow the granting of such a motion.” ( Ibid. ; see People v. Valdez (2004) 32 Cal.4th 73, 102–103 [quoting and applying Windham factors].) Although timeliness must be judged from the totality of the circumstances ( Lynch , at p. 726), the Supreme Court has consistently held that a motion made after a case has been called for trial, like defendant’s, is subject to the trial court’s discretion. (See, e.g., Valdez , at p. 102; People v. Horton (1995) 11 Cal.4th 1068, 1110; People v. Clark (1992) 3 Cal.4th 41, 98–99, overrule d on other grounds as recognized in People v. Edwards (2013) 57 Cal.4th 658, 705; People v. Burton (1989) 48 Cal.3d 843, 853.)
We find no abuse of discretion in the tr ial court’s denial of defendant’s untimely
Faretta motion. As the trial court noted, defe ndant had a history of seeking selfrepresentation and withdrawing the request . At the time of the motion in 2011, defendant’s trial had been long delayed, in part because of defendant’s actions. For a year, he had been hospitalized for the treatm ent of a mental disorder that, his treating psychiatrists later concluded, was at least pa rtially feigned. The trial court justifiably suspected defendant’s Faretta request was made to create further delay. Supporting the suspicion was defendant’s refusal to declare his unconditional readiness for trial. His claim he could not proceed until he received hi s “discovery,” a refere nce he declined to clarify, created an opening for delay, thwa rting the planned immediate commencement of10 trial. 4 Further, as the trial court also noted, defendant’s conduct in hearings immediately prior to the Faretta hearing had been disruptive, raisi ng the concern about his conduct as counsel. That concern was subsequently c onfirmed by defendant’s disruptive conduct at trial, which caused him to be muzzled and shackled. Finally, defendant’s refusal to withdraw his plea of not guilty by reason of in sanity was cause for some concern, since a defendant may be competent to stand trial yet not competent to represent himself or herself at trial. ( People v. Johnson (2012) 53 Cal.4th 519, 527.) For all these reasons,
the trial court acted well within its discre tion in denying defendant’s eve-of-trial Faretta
motion. Defendant argues his moti on was timely because it was originally submitted in June. As discussed above, ho wever, the June motion was heard on August 5, at which time it was withdrawn by defend ant. Defendant did not rene w his motion until his case
had been called for trial.
C. Defendant’s Marsden Motions
Defendant contends the trial court erred in denying his many motions for substitution of appointed counsel pursuant to Marsden made prior to and during the 2012
trial. 5 In making the argument, defendant does not discuss the contents of any particular motion, much less demonstrate error in connecti on with any particular ruling. Instead, he argues the accumulation of motions demo nstrated a breakdown in communication between client and attorney that required substitu tion of counsel.

4 While defendant’s later renewal of the motion promised he would not seek a continuance of trial, the trial court was not required to accept the commitment at face value. In any event, the other concerns c ited above applied as well to the September 13 renewal of defendant’s request.

5 Defendant also contends the trial cour t erred in refusing to grant motions by defense counsel for relief from the represen tation, but defendant makes no attempt to demonstrate he has standing to raise the issue of error by the trial court in refusing to grant requests made by his atto rney. In light of this failure , we conclude defendant raises these motions as evidence of the nature of the relationship between defendant and counsel, rather than as an indepe ndent ground for judicial relief.11 Defendant had requested ap pointment of his trial counsel, William Du Bois, by name when, in 2010, defendant chose to stop representing himself and moved for appointment of counsel. Du Bois con tinued to represent defendant through the suspended 2011 trial and the subsequent comp etency trial, but he was relieved following
the declaration of a mistrial in that proceeding. Du Bois was reappointed after defendant was declared competent and criminal procee dings resumed after May 2012. Once prior to and repeatedly during trial, defendant made Marsden motions for substitution of new appointed counse l for Du Bois. 6 We describe them briefly. July 20, 2012 : Although acknowledging Du Bo is was “a great attorney,” defendant sought new counsel b ecause Du Bois had not obtained a psychiatric evaluation of defendant prior to the September 2011 trial. In addition, defend ant believed Du Bois, during the competency trial, had called as a witness a defense expert who had performed a “private evaluation” and improperly allowed a mistrial to be declared. The trial court
denied the Marsden request, noting defendant had mischaracterized the events and finding, “Your counsel has been incredibly competent.” October 10, 2012 : During the trial, defendant contended he was not “getting a vigorous defense” because he did not have access to all his trial records in jail and
witnesses he wanted to have called at tr ial were unavailable. Defendant was also
concerned because Du Bois believed he was mentally ill and claimed Du Bois had
revealed matters defendant had told him in confidence. Defense counsel denied having made any improper revelations. He expl ained he and defendant had “tactical disagreements” because defendant insisted on a “nit-picky” approach to the evidence.
The trial court concluded defendant was ta king inconsistent positio ns, leaving defense
counsel “damned if he does and damned if he doesn’t.” Based on its own observations of

6 In light of the suspension of proceedi ngs in 2011 and Du Bois’s subsequent removal in favor of a new attorney, the i ssue of the propriety of the rulings on any Marsden motions made prior to the resumption of criminal proceedings in 2012 is moot, and we do not discuss these motions. Defendant has, in any event, waiv ed error in connection with these motions by failing to address them w ith specificity in his opening brief.12 counsel’s performance at tria l, the court denied the Marsden motion, concluding
defendant did not understand defense counsel’ s tactics, which were based on a “better idea of the big picture” than defendant possessed. As the trial court noted: “There is a reality here that is all over the records, I do n’t think anybody could miss it, but you don’t get along with any lawyers. . . . [¶] . . . [¶] . . . I gave you a second lawyer on whether or not you were competent, and it took you less than a week to st art asking for Mr. Du Bois back. [¶] Now, the reality is, we could go through the entire Alameda County bar, I don’t know if you would always be asking specifi cally for Mr. Du Bois back, but you would want to get rid of all of them.” October 23, 2012 : Defendant contended Du Bois failed to locate or call several favorable witnesses, including witnesses who gave descriptions of the bank robber that
did not match him. The trial court noted defense counsel had introduced evid ence of the nonmatching descriptions thr ough police reports and explaine d that calling the witnesses to testify risked the possibility they would recant those descriptions on the stand. The

court concluded the testimony of th e remaining witnesses was of little probative value. Du Bois acknowledged he faile d to investigate the records of a particular hotel where defendant falsely claimed to ha ve been working at the time of one robbery, but counsel explained defendant had not raised the issue w ith him prior to testifying. The trial court
concluded Du Bois coul d not be held responsible for fai ling to warn defe ndant about the potential for impeachment of his false testimony when defendant had not told Du Bois in advance about the testimony. Defendant also faulted counsel for not challenging the prosecution’s DNA evidence, but counsel ex plained there was no reason to doubt the DNA evidence, and investiga ting the work independently and confirming its accuracy would have strengthened the prosecution’s position. As counsel explained: “It underlines the problem in favor of the Prosecuti on rather than derogate s from it. . . . [I]f I thought there was the slightest problem, having reviewed [the prosecution’s analysis], I would have had it reanalyzed.” For the r easons discussed, the trial court rejected defendant’s claims in denying the Marsden motion.13 October 24, 2012 : The next day, defendant filed a Marsden motion on the ground
the trial court had referred to him as a liar in ruling on the prior day’s Marsden motion. The trial court concluded defendant’s points we re the same ones rejected the prior day in connection with investigati on and denied the motion. October 30, 2012 : During jury deliberations, defendant made a final Marsden motion, contending he had been the victim of “gross ineffectiveness.” Defendant again
contended Du Bois had failed adequately to investigate his case and contact favorable
witnesses known to defendant. Defense co unsel rebutted defendant’s claims, noting
defendant’s inconsistencies in his account of the events had made it impossible to satisfy all his demands. Du Bois explained at le ngth that the defense had pursued the many witnesses suggested by defendant and found their potential testimony unhelpful, contrary to defendant’s expectations. In denying the motion, the trial court found defendant was unable to specify any particular witnesses who had not been contacted and judged his claims to be inconsistent and repetitive.
The need for a Marsden hearing arises “[w]hen a defe ndant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation.” ( People v. Richardson (2009) 171 Cal.App.4th 479, 484.) When an appropriate request is made, “ ‘ “the trial court must permit the defe ndant to explain the basis of his contention and to relate specific instances of [the attorney’s] inadequate performance.” ’ ” ( People
v. Streeter (2012) 54 Cal.4th 205, 230.) “ ‘ “A de fendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that
defendant and counsel have become embroile d in such an irreconcilable conflict that ineffective representation is lik ely to result.” ’ [Citation.] ‘A trial court should grant a
defendant’s Marsden motion only when the defendant ha s made “a substantial showing
that failure to order substitution is likel y to result in constitu tionally inadequate representation.” ’ [Citation.] [¶ ] ‘We review the denial of a Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impa ir the defendant’s right to assistance of counsel.” ’ ” ( Ibid. )14 Claiming an “irreconcilable conflict,” de fendant contends the quantity of his
Marsden motions, combined with counsel’s earlier re quests for relief from the representation, demonstrate he and Du Bois had a “breakdown in the attorney-client relationship.” While the sheer number of Marsden motions illustrates defendant’s level of frustration with the progress of his tria l, it proves little abou t the nature of the relationship between defendant and Du Bois. As the transcripts of the several hearings demonstrate, counsel attempted to work with defendant, within the constraints permitted by defendant’s erratic behavior, to provide the best available defense. In the face of a very difficult task, Du Bois ap pears, for the most part, to have maintained a remarkably reasoned perspective and a professional ap proach. Defendant, in turn, expressed admiration for counsel’s skills and performan ce, inconsistently combined with his repeated criticisms. His frustration arose no t from any personal conflict with counsel but from counsel’s inability to meet his demands—demands that , the trial court found, were impossible to meet because they were erratic, inconsistent, and base d on wishful thinking or outright invention. As the trial court also found, provi ding new counsel to defendant
would not have resulted in an improved attorney-client relationship because defendant projected his frustration with his predicamen t onto any counsel appoi nted, leading to the
identical dissatisfaction. In short, while there was plainly a st rained relationship between defendant and Du Bois, it was not the type of conflict that risked causing ineff ective assistance of counsel. It was defendant’s uncooperative and self-defeating conduct, rather than anything inherent in the relationship between defendant and Du Bois, that created a risk of error at trial, if such a risk existed. This conduct would have made the task of representation equally difficult fo r any attorney assigned to repl ace Du Bois. As a result,
the trial court did not abuse its discretion in declining to replace Du Bois, despite their difficult relationship.15 D. Ineffective Assistance of Counsel
Defendant contends he was denied effe ctive assistance of counsel because, faced with a difficult client, his attorney “simply gave up,” failing to investigate potential
witnesses and challe nge evidence. “ ‘ “In assessing claims of ineffective a ssistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whet her the defendant suffered prejudice to a reasonable probability, that is , a probability sufficient to undermine confidence in the outcome. [Citations.] A revi ewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a ma tter of sound trial strategy. Defendant thus
bears the burden of establishi ng constitutionally inadequate as sistance of counsel.” ’ ” ( People v. Brown (2014) 59 Cal.4th 86, 109.) There is no support in the record for defendant’ s claim of surrender by his attorney. On the cont rary, as discussed above, the re cord reflects an attorney who struggled doggedly to overcome the obstac les created by an erratic and uncooperative client, providing defendant with an appropriate and professional defense.
Defendant’s claim of ineffective assist ance is based in pa rt on the incident, described above, in which defense counsel fa iled to anticipate defendant would falsely claim while testifying that at the time of one of the robberies he had been working at a local hotel. The testimony left him open to impeachment by hotel management regarding
the activities at the hotel that day, and counsel criticized hims elf for not investigating the hotel and warning defendant ab out the possibility of impeachm ent. As the trial court pointed out, however, counsel co uld hardly be faulted for not anticipating defendant’s
invention. Defendant also raises counsel’ s alleged failure to attack DNA evidence presented, addressed in the same Marsden hearing. As pointed out at the time, defense counsel investigated the DNA evidence and concluded as a matter of tactics that attacking it would be counterp roductive. Defendant also contends Du Bois failed to cross-examination certain prosecution witnesse s, but the record shows as a matter of16 tactics Du Bois chose to waive their cross- examination and call the same witnesses back as part of the defense case. Defendant’s ot her examples of alleged ineffective assistance are similarly without substance.
As further evidence of ine ffective assistance, defendant cites examples of sarcasm by counsel in discussing defendant w ith the court during the confidential Marsden sessions. These remarks, an expression of co unsel’s frustration with his difficult client, demonstrate only that counsel was human, no t that his representation was in any way
deficient. Because the remarks were outside the presence of the ju ry and prosecution, they had no effect on the trial. Defendant makes no attempt to demonstr ate prejudice from co unsel’s purported ineffective assistance, arguing counsel’s fail ure was so great as to require no such
demonstration. The sole case cited as support, Davis v. Alaska (1974) 415 U.S. 308,
bears no resemblance to th e case at hand. (See id. at pp. 313–314 [defendant denied right
of confrontation when defens e counsel prohibited from cro ss-examining critical defense witness about juvenile adjudication, thereby preventing challenge of patent falsehoods].)
Defendant also contends he was excused from showing prejudice because he was denied counsel entirely (see Strickland v. Washington (1984) 466 U.S. 668, 692), but that was manifestly not the case. Du Bois was pres ent and participating th roughout the trial.
III. DISPOSITION The judgment of the trial court is affirmed.17 _ ____________ ____________ Margulies, J.

We concur:

_____________ ____________ Humes, P.J.

_____________ ____________ Banke, J.