Filed 11/6/13 P. v. Hernandez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
RICARDO HERNANDEZ,
Defendant and Appellant. B241787
(Los Angeles County Super. Ct. No. BA379637)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Susan M. Speer, Judge. Affirmed. Kim Malcheski, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Ja mes William Bilderback II, Supervising Deputy A ttorney General, Kathy S. Pomera ntz, Deputy Attorney General, for Plaintiff and Respondent.

_____________ ____________2 INTRODUCTION

Appellant Ricardo Hernandez was convicted of one count of murder (Pen. Code, 1 § 187, subd. (a)), and six counts of attempted murder (§§ 664, 187, subd. (a)), with gang and firearm allegations found true (§ 186. 22, subd. (b)(1)(C), 1 2022.53, subds. (d), (e)(1)). On appeal, he contends the trial c ourt erred in (1) excluding evidence of thirdparty culpability, (2) denying his Marsden 2 motion, (3) failing to remove a juror, and (4) instructing the jury with CALCRIM No. 600. Additionally, Hernandez alleges
ineffective assistance of counsel. Findi ng no prejudicial error, we affirm.

FACTUAL AND PROCED URAL BACKGROUND I. The Charges The third amended information charged Hernandez with one count of murder (§ 187, subd. (a); count 1), six counts of a ttempted murder (§§ 664, 187, subd. (a); counts 2-7), and one count of conspiracy to comm it murder (§ 182, s ubd. (a)(1); count 9). 3 As to the murder and attempted murder co unts, the information alleged firearm
enhancements under section 12022.53 and a criminal street gang enhancement under section 186.22, subdivision (b). The inform ation also alleged the attempted murders were willful, deliberate, and premeditated with in the meaning of s ection 664, subdivision (a). Hernandez pled not gu ilty to each count and denied the sentence enhancement allegations.

II. The People’s Evidence A. The Shooting According to the People’s evidence presen ted at trial, at approximately midnight on September 27, 2009, Ana Contreras was with her friend, Marlene Ramirez and

1 Unless otherwise indicated, all further stat utory references are to the Penal Code.

2 People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ).

3 Count 8 was alleged only as to the codefendant.3 Marlene’s 4 infant son, Andrew Garcia; they were sitting inside Marlene’s car, which was parked in front of Contrera s’s house on Kittridge Street in Van Nuys. Contreras was sitting in the front passenger seat, holding Andr ew in her arms and feeding him a bottle. Marlene was talking on the phone while seated in the driver’s seat. They had just come from a baptism party at a nearby banquet hall. Marlene testified that Frank Garcia, Andrew’s father; and Melvin Caravantes, a fam ily friend, had left the party with them. Frank, Caravantes, Erik Ramirez (Marle ne’s cousin), and Jo vahny Reyes (the father of Contreras’s baby) were standing on the sidewalk to the right of Marlene’s parked car. Frank, Caravant es, and Reyes were members of a tagging crew called T.G.R. Erik was a member of the Barrio Van Nuys (B .V.N.) gang, although he denied at trial being a gang member. The group saw two men walking on the sidewalk on the opposite si de of the street
toward the car. Contreras heard one of the me n on the opposite sidewalk scream, “Where are you from?”; shortly afterward, she heard si x gunshots. Marlene testified that one of the men appeared to be carryi ng a bat, which turned out to be a gun. The man carrying the gun asked Erik, “Where you from?” Acco rding to Frank, the men across the street had a shotgun covered with a white T-shirt. One of the men asked, “Where you guys from?”; and then Erik ca lled out, “Van Nuys.” Both Contreras and Marlene saw Erik step off the sidewalk. Contreras testified
that she saw Erik walk toward the men across the street and pull up his shirt. Erik did not have a weapon. Marlene testified that Erik touched his shirt, but did not lift it up. Marlene further stated that she heard eight gunshots, and that one of the men on the opposite sidewalk started shooting. At that point, Erik and the ot her men in his group began to run. When the shoot ing stopped, Marlene saw the two men run past her car. Contreras was shot in the left eye, leaving her completely blind in that eye. Erik sustained multiple gunshot wound s to his back, neck, and face. Andrew was bleeding

4 Because some of the victims and witnesse s share surnames, we refer to them by their first names, not out of disrespect but for convenience and clarity. (See Cruz v. Superior Court (2004) 120 Cal.App.4t h 175, 188, fn. 13.)4 and gasping for air. Marlene took the baby and ran toward a convenience store to get help. After police and an ambulance arrived at the scene, Andrew was taken to the hospital. He died from multiple shot gun pellet wounds to his head. After the shooting, Contreras identi fied codefendant Alfonzo Landa in a photographic lineup. Neither Marlene nor Fr ank was able to iden tify either suspect. However, after Frank saw pictures of Hernan dez in the media and on the Internet, he recognized him. Fran k also identified Hernandez in court.
Ana Calvario testified that on the night of the shooting, she was living on Sylmar Avenue. At about 12:15 a.m., she heard gu nshots coming from Kittridge Street. She then saw two young Hispanic men, one of whom was carrying a “v ery big” gun by his side. The man carrying the g un had pimples on his face and hi s ears were “very big.” Once the men saw Calvario, they ran toward Vanowen Street . Following the incident,
Calvario identified Hernandez in a photographic lineup. Sh e based her identification on the shape of his face, his pimples, and his ears. At around midnight on September 29, 20 09, Humberto Salcido was leaving his job at the animal control facility on Vanowen Str eet. As he was pulling out in his car, two men approached him and asked him for a ride. They were Hispanic, appeared to be in their mid-twenties, had shaved heads, and were wearing baggy clothes. When they approached him, one of the men came to th e driver’s side and the other went to the passenger side of Salcido’s car. Salcido notic ed that the man standing on the driver’s side was missing a tooth and had “freckles” on his face. After Salcido declined to give them a ride, the man standing on the passeng er side reached through the window and attempted to unlock the door. Salcido drov e away. Salcido later reviewed photographic lineups, but could not id entify either suspect. Ruby Barboza lived on Blythe Street. On September 26, 2009, Barboza saw
Hernandez and codefendant Landa near her re sidence around 7:00 p.m. She asked them where they were going, but they would not tell her. Codefendant Landa told Barboza to keep her phone on.5 Police recorded an intervie w with Barboza conducted af ter the shooting. During the interview, Barboza told th e detectives that she left her apartment at 5:00 p.m. on September 26, and returned home around midnight. Hernandez and codefendant Landa were partying at her apartment. Barboza thre w them out. Later that night, Barboza again saw Hernandez and codefendant at her apartmen t. She told police that Hernandez went inside the building “real quick,” and that He rnandez and codefendant Landa stayed at her apartment that night. Duri ng the interview, Barboza also identified Hernandez in a photographic lineup. At trial, Barboza fu rther testified that in 2009, Hernandez was missing a tooth. Carlos Garcia, a member of the Blythe Street gang, talked with police about the shooting. At trial, Carlos denied telling po lice that he was on Blythe Street on September 26, 2009, and that he saw Hernandez that night. Carlos also denied telling police that he
drove with Hernandez and codefendant Landa to the area of Van Nuys Boulevard and Vanowen Street before midnight on September 26. Carlos further denied that he had
identified Hernandez a nd the codefendant in photographic lineups.

B. Police Investigation The police recovered six spent shotgun ca sings, three shotgun wads, a white men’s tank top, and blood evidence from the crime scene. The s hotgun shells were “three-anda-quarter Remington 12-gauge shotgun” casings.
Police later conducted a search of an apartment building on Blythe Street, and located a white T-shirt, a live shotgun round, and a shotgun–which was concealed inside a pillowcase–in a small craw l space under the building. The recovered gun was a Mossberg 12-gauge sawed-off pistol-grip shotgun. Firearms analysis determined that the six spent shotgun casings collected from the scene of the shooting were fired from that shotgun. DNA recovered from the T-shir t matched Hernandez’s DNA. The major profile from the shotgun also ma tched Hernandez’s profile. Detective James Nuttall of the Los Ange les Police Department (“LAPD”), the investigating officer, testified that on July 2, 2010, Hernande z was taken into custody at6 Los Angeles International Airport. Polic e thereafter obtained a DNA sample from
Hernandez.
LAPD Officer Mark O’Donnell testified th at on March 22, 2012, he attempted to photograph Hernandez’s mouth and teeth purs uant to a court-issued order. O’Donnell testified that Hernandez refused to comply and would not show his teeth to him. He also noticed that Hernandez was missing a tooth on the upper right side of his mouth.

C. Gang Evidence
LAPD Officer Joshua Ordonez testified th at in 2006, he was assigned to the Van Nuys Gang Enforcement Detail. On April 29 , 2006, Ordonez saw He rnandez in the area of Victory Boulevard and Haske ll Avenue in Van Nuys. Hernandez told him that he had been a member of the Blythe Street gang an d the Nite Outs gang clique for about two years. Ordonez also testified that at the time, Hernandez was missing a tooth on the upper front area of his mouth.
LAPD Officer Nick Giordano testified that in 2009, he saw Hern andez in front of 14619 Blythe Street. Hern andez was wearing a Boston Red Sox hat with a “B.” Members of the Blythe Street gang were know n to wear hats and clothes with the Boston
Red Sox “B.” The prosecution gang expert, LAPD Officer Ralph Brown, testified that the Barrio Van Nuys and Blythe Street gangs were rivals. Blythe Street gang members wore clothing with the letter “B”, including Bo ston Red Sox or Brook lyn Dodgers attire. According to Brown, Erik was a member of B.V.N. and his monikers were “Risky” and
“Lil Necio.” Brown further testified that Hernandez and codefendant Landa were both members of the Blythe Street gang. Hernande z had a “Blythe” tattoo on his chest and his moniker was “Playto.” Officer Brown testified that the qu estion “Where are you from” is a gang challenge. Brown also stated that in gang culture, a “mission” consisted of two or more gang members committing a crime together within a rival gang’s claimed territory.7 When given a hypothetical based on the facts of this case, Officer Brown testified that, in his opinion, the crimes were committed for the benefit of the Blythe Street gang.

III. The Defense Evidence
LAPD Officer Allan Salazar testified th at he was assigned to the gang unit in 2009. Salazar had a number of gang contacts with Erik and knew Er ik had been served with the Barrio Van Nuys gang injunction. Erik admitted to Salazar that he was from
B.V.N. and that his moniker was Lil Necio. Rufo Amores, an LAPD officer, also had multiple contacts with Erik. Amores testified that the most “significant” contac t occurred on February 2, 2008, when he observed Erik with another documented gang member, Sergio Rodri guez. Erik admitted
to Amores that he was a Barri o Van Nuys gang member. LAPD Detective Brigitta Shapiro interv iewed Contreras a few hours after the shooting. During the interview, Contreras told her that Marlene, Andrew and Frank came
over to her house around 10:00 p.m. on September 26, 2009. Contreras had just taken a shower and was hanging out with Marlene in her car. Contre ras also told Shapiro that she saw only one man walking on the north side of Kittridge Street, and that he did not look like a gangster. Contreras did not tell Shapiro that the suspect had said anything before the shooting, and furthe r denied that the people she was with were affiliated with
B.V.N. Detective Peter Barba testified that he sp oke with Marlene at the hospital after the shooting. Marlene told Barb a that she heard someone say, “Where you from?,” but did
not know who said it. Marlene did not mention to Barba that Erik to ld the shooter he was
from B.V.N.
The defense also called Erik Ramirez as a witness. Erik testified that he was on Kittridge Street on September 26, 2009, and denied being a member of the Barrio Van Nuys gang. Erik further test ified that he did not say an ything on the night of the shooting, nor did he hear anyo ne ask “Where are you from?”8 V. Verdict and Sentencing The jury found Hernandez gu ilty on all counts for murd er and attempted murder. The jury found the murder to be in the first degree and the attempted murders to be willful, deliberate, and premeditated. It found true the firear m enhancements under section 12022.53, and the allegation the mu rder and attempted murders were committed for the benefit of, at the direction of, or in association with a crimin al street gang within the meaning of section 186.22, subdivision (b)(1 ). The jury was unable to reach a verdict as to count 9 (conspiracy to commit murder), and th e court dismissed it on the prosecution’s motion.
The trial court sentenced Hernandez to 10 0 years to life: (1) 25 years to life on count 1, with a minimum eligib le parole date of 15 years based on the criminal street gang enhancement, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); (2 ) a consecutive life term for each of the attempted murders charged in counts 3 and 4, with a minimum eligible parole date of 15 years for the criminal street gang enhancement, plus 25 ye ars to life for the firearm enhancement under section 12022.53, subdivision (d); and (3) conc urrent life terms for each of the attempted murders charged in counts 2, 5, 6, and 7, with a minimum eligible parole date of 15 years for the criminal street ga ng enhancement, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). Hernandez filed a timely notice of appeal.

DISCUSSION

Hernandez challenges the exclusion of certain evidence of a third-party’s culpability, the refusa l to appoint new counsel to represent him, and the failure to remove Juror No. 2 during trial. He also raises chal lenges to the “kill zone” instructions given to the jury, and contends that reversal is warrant ed due to ineffective as sistance of counsel.9 I. Third-Party Culpability Evidence Claim According to Hernandez, th e trial court’s refusal to admit third party culpability
evidence was an abuse of disc retion and violated his constitutional rights to present a defense, to due process and to a fair trial.

A. Relevant Proceedings Prior to and during trial, Hernandez atte mpted to present evidence that “Insane,” another Barrio Van Nuys gang member, wa s responsible for the shooting involving Contreras, Marlene, Andrew, Erik, Fr ank, Caravantes, and Reyes.

1. March 26, 2012 . The prosecutor addressed the issue of third party culpability evidence by informing the trial court of the events th at transpired on the night of September 26 prior to the shoo ting. According to the pros ecutor, Frank had attended a baptism around the corner fro m where the shooting occurred. Frank was a tagger who belonged to a tagging group called “Taggers Get Respect” (T.G.R.). The prosecutor opined that T.G.R. was affiliate d with B.V.N. The prosecuto r further relayed that Frank had done some tagging at the party, which pr ompted a verbal confrontation with a B.V.N. member, later identified with the nickname “Insane.” The prosecutor argued that evidence of th e prior confrontation should be excluded because it had no evidentiary support a nd there was “no nexus” between the earlier altercation at the baptism and the shooting. Defense counsel argued that the potential suspect known as “Insane” could possibly be a third party who was liable for the shooting. The trial court tentatively denied defe nse counsel’s request to call civilian
witnesses to establish a third party culpability defense. The court stated that motive alone was not enough to allow the admission of su ch evidence. The court continued: “It appears to be not sufficient to create a reasonable doubt. The only connection, as you indicated, appears to be an earlier argument w ith Frank Garcia, who is a victim in this case, and that they’re somewhat close in time but not terribly close in time.”10 2. April 3, 2012 . During cross-examination of Ana Contreras, defense counsel asked her, “Now, isn’t it true that you actually hear d Marlene talking on the phone about Frank getting into an argument with a group called M.A.D.?” The court sustained the People’s relevance objection and rejected defense coun sel’s request to solicit testimony about third party culpability. The court st ated, “A motive alone is not enough without further proof that a third party is culpable.”

3. April 4, 2012 . During cross-examination of Ma rlene Ramirez, defense counsel inquired whether she knew who was responsibl e for the shooting. Marlene responded, “M.A.D.” Upon objection and move to st rike, the court struck that testimony and directed the jury to disregard it. The court then rea ffirmed its ruling to exclude third party culpability evidence.

4. April 4, 2012 . Later that same day, defense counse l indicated that he wanted to make a “full” offer of proof regarding the thir d party culpability evid ence as follows:

[Defense Counsel]: “A party is close [sic] pr oximity to the shooting within a few blocks away.
“Number two, her husband Frank Garc ia is in a confrontation with the B.V.N. member.”

The COURT: “Who is a few blocks away?”
[Defense Counsel]: “The party that Maria Ramirez – not Maria – Marlene.”
The COURT: “‘The party’, meaning the ev ent? I was thinking you meant person.”
[Defense Counsel]: “I’m sorry, the event.”
The COURT: “Few blocks away?”
[Defense Counsel]: “Few blocks away.
“Number two , Marlene Ramirez’s husband Frank Garcia is in a confrontation with a B.V.N. gang member.11 “Number three, he’s an associate of B.V.N., meaning Frank Garcia is an associate of B.V.N., and a tagger from T.G.R.”

... [Defense Counsel]: “[Number four.] Guy – this guy – there’s a guy from B.V.N. known as Insane – was upset that Frank had disrespected B.V.N. gang. Insane is a known B.V.N. gang member – I-N-S-A-N-E.
“There’s a person at the party, the event, named Shady who was a known B.V.N. gang member, who breaks up the argument between Frank and Insane from B.V.N.
“Number six, Frank Garcia had crossed out or wrote T.G.R. on B.V.N. property.
“Number seven, Insane told Fran k that Frank had disrespected B.V.N. property.
“Insane – number eight – is five foot six to five foot seven with light skin. That’s the same as [] Hernandez.”

... [Defense Counsel]: “Number nine, Insane was thin. Both Marlene Ramirez and Ana Contreras describe the guy on K ittridge, the taller guy being chubby and the shorter guy being thin. That would be consistent with [] Hernandez.

“The time of the altercation betw een Frank Garcia and the B.V.N. gang member is within a few hour s of the shooting on Kittridge at midnight of September 26, ’09.
“Insane was bald headed. My clie nt is described as being bald headed, meaning at the time if he ’s believed to be the shooter.
“Insane is Hispanic. My client is Hispanic.

“It’s – Insane was – there would be testimony, if the court allows it, that Insane was drunk.
“Insane had a light-colored shirt on at the party. The shooter had a light-colored shirt on, it’s white.12 “The – Marlene Ramirez had that conversation on the phone about this argument. Frank Garcia was in this altercation.
“So you have much more than M.O. in this. You actually have the description correlating with the same description of my client. So it’s not just M.O., it’s close in tim e, proximity, description, so it’s more than mere motive.”

Defense counsel informed the court that Marlene and Frank could testify to the aforementioned evidence, which, according to counsel, was contained in the police reports. The trial court stated: “But without more, again you seem to be establishing motiv e only and between gang members I’m sure ther e’s a couple hundred motiv es out there between gang members to shoot each ot her more so between rival gangs ra ther than an associate of one gang against the associate of another gang.
“I’ll check the cases again, but my recollection is the sa me as Mr. Akemon’s. It has to be some nexus. It has to be more than ju st mere motive.
“And the generic description doesn’t seem to rise to the level of the nexus, only shows a motive. But it was apparently di ssipated without any further threats and it doesn’t appear you have the w itness to even prove it up.”
The court concluded, “Without more–unless yo u can supply me with some police reports or something more convincing from a witne ss or police reports–my ruling stands.”

5. April 6, 2012 . The trial court, having reviewed a transcript of Frank’s interview with police and a two-page summary of the intervie w, stated that Frank “lays out two possible other perpetrators or motives that other pe rpetrators would have had in conducting the shooting.” The court discussed the events leading up to th e altercation at the party, noting that a third party intervened and “ca lmed everything down.” The court further noted that Frank told police Er ik had beaten up a member of M.A.D. around the corner from and “very close in time” to the shooting. Thus, the court concluded, “So it could have been someone from B.V.N. having an issue with Frank Garcia or someone from M.A.D. having an issue with Erik Ramirez.”13 Defense counsel argued that Marlene or Fr ank might have called Erik to come to the location on Kittridge Street because they were afraid th ere would be some type of confrontation. The court again rejected de fense counsel’s offer of proof, stating there
was insufficient evidence to admit third party culpability ev idence and that such evidence “would only cause extra time and confusion to the jurors.”

B. Governing Law A criminal defendant has the right to pres ent evidence of thir d-party culpability if the evidence is capable of raising a reasona ble doubt about his or her own guilt. ( People v. Bradford (1997) 15 Cal.4th 1229, 1325 ( Bradford ).) However, the admission of such evidence remains subject to the general requ irement of relevance and the trial court’s discretion to exclude unduly pr ejudicial or confusing eviden ce: “‘We repeatedly have indicated that, to be admissib le, evidence of the culpability of a third party offered by a
defendant to demonstrate that a reasonable doubt exists concer ning his or her guilt, must link the third person either directly or circ umstantially to the actual perpetration of the crime. In assessing an offe r of proof relating to such ev idence, the court must decide
whether the evidence could rais e a reasonable doubt as to de fendant’s guilt and whether it is substantially more prejudicial than pr obative under Evidence Code section 352. [Citations.]’ ¶ In People v. Hall (1986) 41 Cal.3d 826, we he ld that ‘the third-party
evidence need not show “substantial proof of a pr obability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.’ ( Id. at p. 833.) ‘Our holding [in Hall ] did not, however, require the indiscriminate admission of any evidence offered to prove th ird-party culpability. The evidence must
meet minimum standards of relevance: “e vidence of mere motive or opportunity to commit the crime in another pe rson, without more, will not su ffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of th e crime.” [Citation.] We also reaffirmed that such evidence is subject to exclusion under Evidence Code section 352.’” ( People v.
McWhorter (2009) 47 Cal.4th 318, 367-368.)14 C. The Trial Court Did Not Commit Prej udicial Error in Excluding Evidence of Third-Party Culpability

The trial court did not abus e its discretion in excluding the proffered testimony. To warrant admission, Hernande z needed to presen t some admissible ev idence that the
shooter was either Insane or some one other than Hernandez. Under Hall
, supra , 41 Cal.3d 826, third-party culpab ility evidence is not admissibl e where it shows only that another possesses the motive or opportunity to commit the cr imes. Here, the evidence that the defense proffered as to Insane’s co mmission of the charged crimes was that he
was involved in a verbal alter cation with Garcia prior to th e shooting in a place in close proximity, and generally fit a physical descrip tion of Hernandez. The defense presented no forensic evidence or eyewitn ess statements to show that Insane was present at the scene of the shooting when the shooting occurred; that he fired a gun; or that he shot at the victims in this case. ( See Bradford
, supra , 15 Cal.4th at pp. 1324-1325 [evidence of third-party culpability inadmi ssible because it did not link someone other than the defendant to the perpetration of the crime].) In any event, even if the exclusion of the evidence were error, the court’s ruling was not prejudicial. We review the record using the harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 837. ( People v. Hall
, supra , 41 Cal.3d at p. 836). The evidence of Hernandez’s gu ilt was strong, including: the eyewitness testimony; Calvario’s identifica tion of Hernandez; Hernandez’s refusal to have his mouth and teeth photographed; and Hernandez’s DNA found on both the shotgun used in the shooting, and the T-shirt recovered from the crime scene. In contrast, the tendered
evidence demonstrated no link between Insane and the crimes. Accordingly, on this record, it is not reasonably probable Hernandez would have received a more favorable
verdict had the evidence of the altercation at the baptism part y earlier in the night been
admitted.15 D. Hernandez Failed to Demonstrate He Was Prejudiced By Hi s Counsel’s Conduct Hernandez further argues his counsel was ineffective for failing to object to the exclusion of evidence on all legal grounds, and for failing to file a written motion in support of his culpability claim prior to trial. To prevail on a claim of ineffective assist ance of counsel, “a defendant must show both that his counsel’s performance was defici ent when measured agai nst the standard of a reasonably competent attorney and that co unsel’s deficient performance resulted in prejudice to defendant in the sense that it ‘so undermined th e proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.]” ( People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.) Prejudice is shown when “there is a reasonable probab ility that, but for counsel’s unprofessional errors, the result of the pro ceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ( Strickland v. Washington (1984) 466 U.S. 668, 694 .) It is not necessary fo r the court to examine the performance prong of the test before examin ing whether the defendant suffered prejudice
as a result of counsel’s alleged deficiencies. ( Id. at p. 697.) “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice...that course should be followed.” ( Ibid .) As discussed above, the trial court prop erly excluded evid ence regarding the
earlier altercation between Fran k and Insane the night of th e shooting, and any possible error in this regard was not prejudicial. Acco rdingly, the ineffectiv e assistance of counsel
claim fails.

II. Marsden Motion Hernandez next argues the trial court abused its discretion in denying his Marsden motion to appoint new co unsel. He asserts an irreconcilable conflict existed between him and his appointed counsel that made effective representation impossible.16 A. Relevant Proceedings On March 1, 2012, Hernandez requested that the court replace his appointed attorney, Mark P. Brandt, because he was un satisfied with Brandt’s representation. Hernandez explained that they had “disagreements on certai n things” and Brandt had not adequately communicated with hi m. He further complained, “O ne of the main things is
that we haven’t done the motions. I asked hi m if we’ll do some motions and he said no, that’s not necessary, but I disagree with that .” Hernandez, however, could not tell the court what specific motions he wanted Brandt to file. In reply, Brandt indicated that he had seen Hernandez “numerous times,” “interacted with him,” and provided him with discovery. He stated, “I feel like our relationship has been okay.” Brandt further advised the court that he had investigated “many different things on [the] case,” and had a DNA expert appointed. He also indicated that he had gone th rough the discovery and there was “[not] a valid [Penal Code section] 995” in the case. According to Br andt, there were no ot her motions he could bring and he was ready for trial. The court explained to Hernandez that it was improper to file “frivolous” motions, and noted that Brandt had experts appointe d, had met with Hernandez many times, and had provided him with disc overy. In denying the Marsden motion, the trial court told Hernandez: “[T]o the extent there are disagr eements between the two of you, I have to err on the side of Mr. Brandt,” and continued, “There are no additional motions that I can see he should have brought or needs to bring.” Finding no ot her basis to replace Brandt,
the court denied the motion. On March 22, 2012, Hernandez renewed his Marsden motion, summarizing his complaints about Brandt as fo llows: “There is a complete break down in the attorneyclient relationship. Counsel has expressed hims elf an [sic] made it clea r to the client that there isn’t anything he could do for the client and that the client will not receive a fair trial in (Van Nuys) court. The client request ed for counsel to file pre-trial motions, full discovery under Brady, Change of Venu e, Suppression motion and subpoena possible witnesses etc. etc. [sic].”17 After reading the motion, the court clar ified with Hernandez that Hernandez’s complaints had been th e subject of the prior Marsden hearing. In response, Hernandez
advised the court that Brandt had told him he “can’t do nothing for me,” and that he was not going to have a fair trial in Van Nuys. The court stated, “If there’s nothing more legally he can do, there’s nothing more legally we can do.” In response, Brandt contended that he had a private investigator appointed, visited Hernandez in jail many times, and had the DNA analyzed at a separate lab, but that it
came back as Hernandez’s DNA. Brandt also indicated that he had told Hernandez that the Van Nuys court was “toug h” and “conservative,” but de nied telling Hernandez he
would not receive a fair trial there. Once again, the trial court refused to re place counsel. The court ruled that any
breakdown in the relationshi p between Hernandez and Bran dt was due to Hernandez’s “unhappiness” with the situation,” and that Brandt had “done ev erything he [could] possibly do to properly represent [H ernandez] up until this point.”

B. Governing Law A defendant may seek appointment of ne w counsel where the appointed attorney is not providing adequate re presentation or the defendan t and counsel have become
embroiled in such an irreconcilable conflic t that ineffective representation will likely result. ( People v. Welch (1999) 20 Cal.4th 701, 728.) Denial of a Marsden motion is not
an abuse of discretion unless the defendant sh ows that a failure to replace the appointed attorney would “substantially impair” his or her right to assistance of counsel. ( People v.
Barnett (1998) 17 Cal.4th 1044, 1085.) Where a defendant seeks to discharge appo inted counsel on the basis of inadequate representation, the trial court must allow the defendant to explain hi s dissatisfaction with counsel. ( Marsden
, supra , 2 Cal.3d at p. 124.) “A defenda nt 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 representation is likely to result.” ( People v. Hart18 (1999) 20 Cal.4th 546, 603.) The number of times a defendant sees his attorney and the way in which the defendant relates to hi s attorney does not by itself establish incompetence. ( Id. at p. 604.) A Marsden motion should only be granted where the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inad equate representation.” ( People v. Crandell (1988) 46 Cal.3d 833, 859 ( Crandell ).) Where, as here, the trial court has made factual findings in evaluating a Marsden motion, those findings are entitled to deference, and we review them under the substantial
evidence standard. “To the extent there wa s a credibility question between defendant and counsel at the hearing, the court was ‘e ntitled to accept counse l’s explanation.’ [Citation].” ( People v. Smith (1993) 6 Cal.4th 684, 696.)

C. The Trial Court Did Not Abuse It s Discretion in Denying Hernandez’s Marsden Motion
On this record, the court properly exercised its discre tion by refusing to appoint
new counsel. There is no evidence Hern andez and Brandt were embroiled in an irreconcilable conflict of such magnitude th at ineffective representation was likely to result. After Hernandez explained his reasons for seeking new appointed counsel, Brandt provided assurances to the court that he ha d visited Hernandez many times, provided him with discovery, had a DNA expert and privat e investigator appointed, was prepared for trial, and did not believe a Penal Code se ction 995 motion had any merit. Brandt’s responses to Hernandez’s complaints were r easonable and the trial court was justified in relying on those assertions. While the reco rd also demonstrates Hernandez was not communicating with Brandt, refusing to co operate with counsel does not show
“irreconcilable differences” a nd is not a ground for appo intment of new counsel. ( Crandell
, supra , 46 Cal.3d at pp. 85 9-861; see also People v. Hardy (1992) 2 Cal.4th 86, 138 [A defendant may not fo rce the substitution of counsel by his own conduct that manufactures a conflict.].)19 III. Failure to Remove a Juror “‘[T]he right to unbiased and unprejudiced ju rors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution.’” ( People v. Earp (1999) 20 Cal.4th 826, 852; see In re Hitchings (1993) 6 Cal.4th 97, 110 [“one accused of a crime has a constitutional right to a trial by im partial jurors”].) Hernandez contends the trial court’s failure to replace Juror No. 2 viol ated his right to trial by impartial jurors.

A. Relevant Proceedings Near the end of trial, the trial court info rmed all counsel that a physical fight had
broken out in the hallway between two women from the courtroom next door. The
women were not connected with Hernandez’s tria l. The court further explained that Juror
No. 2 had intervened in an attempt to break up the fight. The court offered to inquire of Juror No. 2 whether he had any bias or prej udice, but neither the prosecutor nor defense counsel believed it necessary. Later that day, in the presence of th e prosecutor and defense counsel, the trial court spoke to Juror No. 2, who discussed th e physical altercation that occurred in the hallway. According to Juror No. 2, he had g one to help Juror No. 9, who was the first person who tried to break up the fight. While Juror No. 2 was asking one of the women to let go of the other, a deputy grabbed him a nd tried to put his arm behind his back. The deputy told him, “You calm down.” Some people who witnessed the altercation informed the deputy that Juror No. 2 was just trying to help . As Juror No. 2 then went to sit down, another deputy asked, “Where are yo u going?” The other jurors told the deputy
that Juror No. 2 was not involved in the fight.
Juror No. 2 stated that after the incident, he felt “sad” and “a little bit embarrassed” because he was just trying to help . He said that he was not going to come back to court after lunch, but “that’s a weird way of dealing with it.” Juror No. 2 further stated that he was “angry,” an d “[did not] want to have anyt hing to do with anybody in
here.”20 At that point, the following exchange occurred:

The COURT: “So how would this affect you at all as a juror?”
JUROR NO. 2: “Well, I don’t – let me preface it by saying I was enjoying the experience, you know, so I’m – this is not like – I didn’t say oh, I can use this to get away from this because that’s not what I wanted.
“But honestly, I don’t want to be he re anymore. I mean I – I feel like, you know, I’ve been – someb ody’s taken a dump on me for trying to help somebody, a fellow juror who were calling for help, and no one else wanted to respond, so I did, and out of everybody there.”
The COURT: “I’m sorry this happened to you. You are doing the right thing and they got the wrong impression.”
JUROR NO. 2: “Yeah. I mean, I’m there tryi ng to explain like, oh, like what? What is this?”
The COURT: “Do you think y ou can hang in there, think about it tonight and see how you feel? You know, we’re approaching the end, we think we’re going to rest tomorrow, if not early the following day. So we are on time and it would be problematic to lose you.”
JUROR NO. 2: “I feel – it’s a weird feeling. You know, I feel no longer a part of the group, you know, because now I’m like oh, you know, oh – I don’t like all that, you know. It just added to my problems, you know, everybody patting me on the back.
“I don’t want you to – I didn’t want it to happen, you know what, patting me on the back is not –”
The COURT: “Nothing I can do about that.”

JUROR NO. 2: “I know.”
The trial court apologized again and stated , “It’s really not go od cause to excuse you and I don’t want to.” The following exchange then occurred:21 The COURT: “Do you think you can hang in there and see how you feel tonight and maybe tomorrow you’ll have a different –”
JUROR NO. 2: “I don’t want to, you know ? I mean, yeah, I don’t – you know, the only thing that I’m really thinking about now is wh at I can do to make it known what that person did, you know.”

The COURT: “You can file a formal complaint.”
JUROR NO. 2: “Right. Is that with the sheriffs?”

The COURT: “Yes.”
JUROR NO. 2: “Then that’s what’s on my mind. That’s what’s been on my mind since lunch, you know, should I ta lk to you. But now I know and now that’s no longer concerned about talking to you anymore.”
The COURT: “I can get you a supervisor down if you want to make a formal complaint.”

JUROR NO. 2: “I do.”
The COURT: “Okay. With that, do you think that will sa tisfy you enough to stay on the jury a few more days?
JUROR NO. 2: “Yeah – you know, I really just wanna go home. But, you know, whatever. I don’t want to – you know, it’s not about me affecting the process, you know, it’s just I – ”
The COURT: “I know you feel uncomfortable being here now.”

JUROR NO. 2: “Yeah.”

The COURT: “But we’re in the home stretch here.”
JUROR NO. 2: “Yeah, but I’m really ambiva lent because I know that I could just say ‘F’ it and just leave and whatev er. I mean, you know, what are you going to do? I mean some body has wronged me, you know? You can have an issue if you wa nt, you know, but it’s – I’ve been screwed over a little bit in front of my peers and I don’t like it.
The COURT: “I’m awfully sorry that that happened in our courthouse, especially to one of our jurors.”22 JUROR NO. 2: “Yeah.”
The COURT: “We really appreciate your service. I’ll call a supervisor down, we’ll have him come down at the break. We’ll start now. So maybe about 3:00 o’clock on the break. I’ll di rect him to you outside the presence of the other jurors.”
JUROR NO. 2: “All right.”

The COURT: “Would that work for you?”
JUROR NO. 2: “All right, that’s fine.”

The COURT: “We’ll talk tomorrow.
“The other jurors are in the jury room or if you want to go – if you want to wait out front, you can too, whichever you prefer.”
JUROR NO. 2: “I don’t want to be any more separated, you know.”
The COURT: All right, let’s take you to the jury room. We’ve got a couple of things to do on the record. I’ll get ahold [sic] of the supervisor and we’ll bring you out in just a few minutes.”
The court then informed the parties: “I pl an to do just as I said, keep him on the jury. If he makes a complaint tomorrow, we’ll address it then . I’ll allow him to make a formal complaint regarding the deputy’s be havior with a supervisor here.”

B. Governing Law Penal Code section 1089 provides for a ju ror to be discharged , and replaced by an alternate, if “upon [] good cause shown to the court [the juror] is found to be unable to perform his or her duty.” A juror who in dicates that he cannot follow the court’s instructions is unable to perform his duties, a nd may be removed; the decision of the trial court in this regard is reviewed for an abuse of discretion. ( People v. Williams (2001) 25 Cal.4th 441, 448.) “Before an appellate cour t will find error in faili ng to excuse a seated juror, the juror’s inability to perform a juror’s functions mu st be shown by the record to be a ‘demonstrable reality.’ The court will not presume bias, and will uphold the trial23 court’s exercise of discretion on whether a s eated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation].” ( People v.
Holt (1997) 15 Cal.4th 619, 659.)

C. The Trial Court’s Failure to Rem ove Juror No. 2 Was Not An Abuse of Discretion
As set forth in detail, the trial court questioned Juror No. 2 in the presence of
counsel for both sides. While Juror No. 2 initially expressed obvious displeasure with continuing to sit as a juror, hi s attitude appeared to change during the discussion when offered to make a complaint. The record does not indicate that Juror No. 2 was refusing to deliberate or had any problem continuing to serve.
This was sufficient evidence on which the court could conclude Juror No. 2 would be able to deliberate. (See People v. Zapien (1993) 4 Cal.4th 929, 994 [In favorably assessing the credibility and sincerity of this juror, the trial court had the benefit of observing his demeanor; it is therefore appropri ate on appeal to defer to the trial court’s implied findings].)

D. Hernandez’s Counsel was Not Constitutionally Ineffective
Hernandez also claims his trial counsel rendered ineffective assistance of counsel by failing to object on this ma tter on federal constitu tional grounds. As discussed above, the court did not abuse its discretion; accord ingly the ineffective assistance of counsel
does not lie.

IV. CALCRIM No. 600 – Th e “Kill Zone” Instruction Hernandez challenges CALCRIM No. 600, a sserting it defines attempted murder using “fatally flawed unconstitutional language .” He contends the instruction lowered the prosecution’s burden of proof by substant ially expanding the liability for attempted murder, permitting the jury to find him guilty of attempted mu rder even if he did not intend to kill any of th e individuals w ho were in the “kill zone.”24 A. Relevant Proceedings The court instructed the jury on attempted murder pursua nt to CALCRIM No. 600.
That instruction states: “A person may intend to kill a specific vi ctim or victims and at the same time intend to kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Marlen e Ramirez, Ana Contreras, Jovahny Reyes, Frank Garcia and Melvin Caravantes charged in Counts 2, 3, 5, 6, and 7 on concurrentintent theory, the People must prove that the defendant not only intended to kill Eric Ramirez but also either intended to kill Marl ene Ramirez, Ana Contre ras, Jovahny Reyes, Frank Garcia and Melvin Cara vantes on concurrent-intent theory, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Marlene Rami rez, Ana Contreras, Jovahn y Reyes, Fra nk Garcia and Melvin Caravantes on concurre nt-intent theory or intended to kill Eric Ramirez by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Marlene Ramirez, Ana Contreras, Jovahny Reyes, Frank Garcia and Melvin Caravantes.”
B. Governing Law “When considering a claim of instruc tional error, we review 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 matter. [Citation.]” ( People v. Houston (2012) 54 Cal.4t h 1186, 1229.) A “defendant may be convicted of the attempted murders of any within the kill zone, although on a concurrent, not transferred, intent theory.” ( People v. Bland (2002) 28 Cal.4th 313, 331 ( Bland ).) “The conclusion that transfe rred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” ( Id. at p. 329.) Concurrent intent exis ts “‘when the nature and scope of the attack, while directed at a primary victim, ar e such that we can conclude the perpetrator intended to ensure harm to the primary vic tim by harming everyone in that victim’s vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in25 order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fi re or an explosive device devastating enough to kill everyone in the group. The de fendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.... Where the means employed to co mmit the crime against a prim ary victim create a zone of harm around that victim, the factfinde r can reasonably infer that the defendant
intended that harm to all who are in the anticipated zone.’” ( Id. at pp. 329-330)

C. The Trial Court Did Not Err in Inst ructing the Jury wi th CALCRIM No. 600
We conclude there is no reasonable possibility that the jury misconstrued CALCRIM No. 600 so as to eliminate the requi rement that it find that Hernandez had the specific intent to kill each of his victims. The jury was properly instructed on th e elements of attempted murder, including the requirement of the specific intent to mu rder the person whose attempted murder is charged. CALCRIM No. 600 itsel f instructed the ju ry that to convict defendant of the attempted murder of the six victims, “the Pe ople must prove that: 1. The defendant took at least one direct but ineffective step towa rd killing another person; ¶ AND ¶ 2. The
defendant intended to kill that person.” CALCRIM No. 60 1 informed the jury that to find that an attempted murder was done willfu lly, the jury had to fi nd that the defendant
“intended to kill when he acted.” “The ‘kill zone’ portion of CALCRIM No. 600 was superfluous. That theory ‘is not a legal doctrin e requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’” ( People v. Campos (2007) 156 Cal.App.4th 1228, 1243, quoting Bland
, supra , 28 Cal.4th at p. 331, fn. 6; see also People v. Smith (2005) 37 Cal.4th 733, 746.)
Even if the instruction had been erroneous , any the error would be harmless in that it was not reasonably probable th at if a correct instruction ha d been given a verdict more26 favorable to Hernandez would have resulted. ( People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to fede ral constitutional error are
reviewed under the harmless e rror standard articulated in Watson , supra , 46 Cal.3d at p. 836].) The evidence of Hernandez’s in tent to kill everyone in the group was overwhelming under the “kill zone ” theory or otherwise. Based on the trial testimony,
Hernandez fired at least six shots at Erik and the individuals who were either standing next to him or sitting in the car near him. In short, Hernandez fired multiple shots at a group of people, thereby creating a “killing zone ” and placing everyone in jeopardy. In our view, this was sufficient ev idence to support the “kill z one” instruction. (See, e.g., People v. Bragg (2008) 161 Cal.App.4th 1385, 13 93 [“kill zone” instruction proper where defendant fired at a group of people outside of a market].)

D. Hernandez’s Counsel was No t Constitutionally Ineffective Finally, Hernandez argues his trial co unsel’s failure to object on federal constitutional grounds to CALCRIM No. 60 0 constituted ineffective assistance of counsel. As we explained above, there was strong evidence su pporting Hernandez’s conviction for the attempted mu rder of the victims. Because Hernandez has not shown he was prejudiced, his claim has no merit.27 DISPOSITION

The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.