Filed 4/20/21 P. v. Houk CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

When his girlfriend refused to give him oral sex, Stephen Merle Houk beat her, loaded a gun and pointed it at her and their young son, threatened to kill them, and then kicked her out of their motorhome to panhandle at a Starbucks, telling her to get $250 for her grave. She asked a customer for help, and he called the police. When Houk saw the police arrive, he drove off with their three-year-old son and one-year-old daughter. He led multiple police cars on a 100-mile chase to Bakersfield, where he drove into an orchard and abandoned the motorhome with the children inside. A jury convicted Houk of injuring a girlfriend, assault with a firearm, making criminal threats, kidnapping, child detention with right to custody, child abuse, felony fleeing from a pursuing police officer’s vehicle while driving recklessly, and possession of a firearm by a felon with one prior, and found true various allegations. After a bifurcated trial, the trial court found Houk’s prior conviction true, and sentenced him to 88 years and four months in state prison along with fines and fees. He appeals, and we affirm.

BACKGROUND

An information charged Houk with two counts of injuring a girlfriend (Pen. Code,^[1] § 273.5, subd. (a), counts 1 and 2); assault with a firearm (§ 245, subd. (a)(2), count 3); criminal threats (§ 422, subd. (a), count 4); two counts of kidnapping (§ 207, subd. (a), counts 5 and 6); two counts of child detention with right to custody (§ 278.5, counts 7 and 8); two counts of child abuse (§ 273a, subd. (a), counts 9 and 10); felony fleeing from a pursuing police officer’s vehicle while driving recklessly (Veh. Code, § 2800.2, count 11); and possession of a firearm by a felon with one prior (§ 29800, subd. (a)(1), count 12).^[2] The information alleged Houk personally used a firearm (§§ 667.5, subd. (c), 1192.7, subd. (c), 12022.5) in committing counts 1 through 4, 7, and 8; he personally used a firearm (§ 12022.53, subd. (b)) in committing counts 5 and 6, and the victims were under 14 years old and were kidnapped with the intent to permanently deprive a parent of custody of the children (§ 667.85); as to counts 3 through 6, he suffered one prior serious felony conviction (§667, subd. (a)(1)); and he had one prior strike conviction (§ 667, subds. (b)-(j)), for which he was on probation and parole at the time of the offenses.

1. Prosecution evidence

At trial, a registered nurse testified he encountered Amey H. (hereafter Amey) outside a Santa Clarita Starbucks at 8 a.m. on May 1, 2018. She was disheveled and distraught and looked like she had been beaten up, with visible injuries on her face. Amey asked him to help her, and he called 911, relaying the information that her husband had a gun in the home.

Amey testified the nurse at the Starbucks saved her life.

She met Houk in Oregon in 2014, and they soon started living together. She wanted to stay put, but he wanted to get out of state because he was in violation of his parole and was using an alias. When their first child Levi was born in 2015, and when their daughter Abigail was born in 2017, they used Amey’s last name because Houk did not want his name on the birth certificates. He did not have a driver’s license. Amey bought the motorhome with her earnings and they began to travel.

Amey supported the family by panhandling, which was Houk’s idea. He stayed in the motorhome and watched the children. He said a woman would get more money, and demanded she earn $250 to $300 a day before he would let her come back to the motorhome. They communicated by cell phone. The jury saw texts corroborating that sometimes he would move the motorhome and tell her where he was only after she earned a certain amount. Some of Houk’s texts were threatening. He texted: “ ‘This is fucking bullshit. And a motherfucker can’t even get a decent home-cooked meal or fucking dick sucked. I am ready for you and I to both check out permanent,’ ” which she thought meant he was going to kill them all. He also was angry when Abigail’s cold medicine was about to run out and Amey promised to buy more: “ ‘Thank you for the unneeded extra suffering. And you wonder why I want a pistol.’ ”

Houk abused Amey not only verbally but physically, starting when Levi was about two. He regularly hit her with his closed fist on the back of her head when she didn’t do something he wanted, making her lose her balance and fall, and leaving bumps and bruises. The abuse worsened when she was pregnant with Abigail. Houk would try to strangle her and kick her near her stomach. She did not report it because she was scared for her life and afraid she would lose her kids. Houk would take her phone away and read it. Houk allowed her to call his family only; if she called hers, he would beat her up.

While they were in Arizona in March 2018, Houk beat Amey up after she said she didn’t want a gun. He then forced her to buy a .357 Magnum and ammunition at a pawnshop. Houk said he wanted the gun for protection, but she thought he wanted it “[t]o kill us.” On April 26, 2018, Houk texted her: “ ‘I’d be happy to shoot you,’ ” and he was ready to go to Oregon to kill her father and then himself.

On April 30, 2018, they were parked at the beach in Malibu. When Amey said she didn’t want to panhandle, Houk punched her in the back of her head and shoved her into the motorhome closet. He took a walk for a few minutes. The loaded gun was in the closet, and she quickly took the bullets out because she was afraid he would use the gun on her and the children. They went to bed at 8:00 p.m. Houk woke her up at 2:00 a.m. on May 1, demanding oral sex and saying that was her job. When she said she didn’t want to, Houk punched her in the back of the head four times and head-butted her twice, injuring her eye. He told her he hated her, she was stupid and worthless, and he would kill her, the kids, and himself with the gun: “ ‘You are going to die tonight.’ ”

The kids were awake and Amey tried to grab them. Then she went to the closet, got the unloaded gun, and pointed it at Houk to scare him and make him stop hitting her. He grabbed the gun, pointed it at the floor, and clicked it, realizing it was not loaded. He angrily asked her for the bullets, and then got them from the closet and loaded the gun, telling her: “ ‘You’re going to die tonight.’ ” He pointed the gun at her head and said, “ ‘You’re going to die, Levi is going to die, and I’m going to take you to your grave.’ ”

Amey put up her hands to block the shot and then grabbed Abigail and Levi. The children were crying because Houk was hitting her, and he told her to make them shut up. He threatened her again: “ ‘You’re going to die tonight. You’re going to panhandle for your grave.’ ” Houk said he had two bullets to kill her and Levi. She tried to block Houk with her leg, and he told her: “ ‘I’m going to break your leg. And this is . . . your last night on earth.’ ”

Amey was in the front seat, trying to get her shoes on and using her body to cover Abigail. Houk put the gun by the driver’s seat and said: “ ‘You better be ready in 20 minutes to walk out of that door. If you’re not, you are going to die right here,’ ” using his fingers to mimic a gun and pointing at her head.

Houk drove off with the gun still on the front seat. Amey was sitting next to Abigail and Levi was in the seat behind the passenger seat. Houk drove to a gas station in Castaic. He repeated over and over, “ ‘You’re going to die tonight,’ ” while the children cried, and he pointed the gun at her head and at Levi. She made him a hot breakfast and he threw it out, and then she cleaned up the motorhome and prepared to panhandle. Amey thought Houk was ready to kill her and the children.

Houk drove to a Starbucks in Santa Clarita, with the gun next to the front seat and Amey and the children in the back seat. It was almost light out. As Amey left the motorhome, he told her: “ ‘[G]et out of the motorhome before I shoot you.’ ” He again told her to panhandle $250 for her grave, putting his pointer finger to her head with his thumb extended like a trigger and holding the gun in his other hand. He parked across the street at a BestBuy where she could see the motorhome. Amey texted Houk’s sister Elaine, asking her to call 911 because she was scared he was going to kill the kids. After the nurse stopped to help her and called 911, she told Elaine the police were coming.

The police arrived about 20 minutes later and put Amey in a patrol car. Amey told them she was scared, Houk had a gun and might make a run with the children, and she was afraid for her life and the children’s lives. More patrol cars arrived. Amey saw Houk begin to pull out of the BestBuy parking lot and told the deputies he was going to run. She saw him drive off and heard sirens coming from all directions. The deputies took her to the police station.

Houk called Amey from the road, and she held her phone up so the deputies could hear. She was afraid he would hurt the children, so she told him she would take a bus to join him, and asked if the kids were okay. He accused her of talking to the sheriff and said: “[T]his is a hostage situation with babies involved and a loaded fucking gun.” He said he wasn’t going to turn himself in: “You’re not going to get these goddam kids back without fucking—without fucking reconciliation here.” Houk wanted Amey to get on a bus and meet him at a tattoo parlor in Los Angeles to see the children. When Amey told him she was on the bus and begged Houk to pull over, he said a helicopter and “25 cops” were following him and he wanted to see her first: “Get the cops to bring you to me. I want to see you in front of me before I pull over.”

At the Santa Clarita sheriff’s station, detectives saw Amey’s injuries, including a red mark on her head, contusions on the back of her head and near her left eye socket, and bruises on her arm. The detectives drove Amey to Bakersfield as it was getting dark, and she saw her children at the highway patrol station. Later, although she had a new phone number, Amey received multiple phone messages from Houk in jail.

A Los Angeles Police Department (LAPD) officer testified he and his partner received an alert from the sheriff’s department that Houk was an armed kidnap suspect and involved in domestic violence. They pursued the motorhome, which did not yield to their black-and-white’s lights and sirens or their instructions on the loudspeaker to pull over. Houk hit a parked car and kept going. Four marked units with lights and sirens on followed the motorhome onto the freeway.

California Highway Patrol (CHP) officers testified they took the pursuit over on the freeway, with lights and sirens on. Four CHP units joined the pursuit in the Fort Tejon area, also with lights and sirens on. The officers knew the driver of the motorhome was a parolee at large, had kidnapped two children, and was armed with a pistol. Houk was driving at 55 to 60 miles per hour. A lieutenant was in phone contact with Houk, who was agitated by the sounds of the sirens, so at times they turned off the sirens for the safety of Houk and the children.

Houk got off the freeway in Bakersfield and ran a red light in heavy traffic. He drove back onto the freeway and then exited again, running red lights and stop signs, and pursued by seven marked police cars using sirens and loudspeakers. He eventually drove onto a dirt road through orchards and then into a truck stop, looping through the parking lot. When a CHP patrol officer drew his rifle and got out of his car, Houk drove the motorhome back onto the dirt road, raising so much dust that the highway patrol had to back off.

Houk turned left and stopped in an almond orchard. The motorhome was running and the engine was revving. When the CHP officers reached the motorhome, the driver’s door was open. The Bakersfield police SWAT team and the Kern County sheriff arrived. A helicopter unit broadcast it detected a heat signature in the driver’s seat area.

A Bakersfield police detective testified he and the SWAT team trailed the pursuit once Houk was off the freeway. After they arrived in the orchard, they could see Levi on the floorboard next to the gas pedal. A four-man ballistic team with bulletproof shields reached the front door and rescued Levi from the floorboard. Ammunition lay in the dirt just outside the driver’s door.

A Kern County sheriff’s deputy testified he parked his armored vehicle just behind the motorhome to keep it from backing up. After Levi was removed from the motorhome, the deputies announced themselves and asked Houk to come out with his hands up. When there was no response they approached the motorhome, entered the rear passenger door, found Abigail asleep in her carseat, and removed her. The motorhome was cleared as empty about an hour after it stopped in the orchard. On the ground about 100 yards from the motorhome, a police dog found the leather hat Houk wore that day. The entire chase was around 100 miles.

Sheriff’s department search teams found Houk on May 3, 2018 in a railway yard in Barstow, with his phone and backpack. Detective Mark Donnell interviewed him on tape after giving advisements under Miranda v. Arizona (1966) 384 U.S. 436. Houk explained he was in a blackout rage after Amey refused to give him oral sex, admitted “there was a gun being thrown around,” he pushed her into a closet, he pointed the gun at her, and he hit her a couple times. He tried to pawn the gun while he was still in Los Angeles, and then came back to the motorhome and the chase began. Houk said he shaved his beard off while he was in the orchard, using a razor he had in his backpack, and he threw the gun away by the truck stop nearby. Amey was a very nice person who never accused him falsely. He was shocked she called the police because she knew his temperament. He agreed the chase was dangerous: “ ‘It could have been horrific and you could have rolled up on three dead people.’ ” He had been determined not to be taken alive, which would have been “ ‘[s]uicide by cop.’ ”

2. Defense evidence

Houk testified in his own defense. He met Amey in Oregon in 2014. They left Oregon in early 2015 when he “absconded,” and traveled around the country with Levi, with Amey panhandling to pay the bills while he tried to find odd jobs. Abigail was born after they returned to Oregon.

One morning in April 2018, they were camping in Arizona when they saw a pair of wild boars right next to the motorhome where Levi had been playing outside. Houk was anti-gun, but he told Amey if he ever wanted a gun it would have been right then. She had experience with guns, and three days later she bought a gun and ammunition at a gun store, while he was in the motorhome napping with the kids. Amey practiced target shooting.

On the night of April 30 they were camping in Malibu. Amey was asleep and he went out for a walk. When he returned he asked her to make him coffee and complained it wasn’t hot. Then he “asked her to take care of me” and she said she didn’t want to. Houk told Amey that would be fair if she threw away her sex toys. She went outside long enough to smoke a cigarette, then she came back into the motorhome and punched Houk in the kidney and then in the neck and the mouth, breaking one of his canines. He told her to stop and grabbed her wrist and arm to stop her from hitting him again. He backed up, sat in the driver’s seat, asked her to clean up the spilled coffee, and started the motorhome to warm up the engine for the drive to Santa Clarita.

They continued to argue on the way to Castaic. Amey made breakfast while the kids slept. They arrived at the BestBuy parking lot in Santa Clarita. Although he had chest pains, Houk got up to help Amey feed the baby. Standing by the closet, she pulled out the gun, pointed it straight at him, and said: “ ‘You son of a bitch, I’m going to kill you.’ ” He could see the bullets in the cylinder.

Houk dropped the baby bottle and grabbed the gun. Amey tried to headbutt him, and he squeezed her hands and she let go. He backed up and ejected five bullets from the cylinder. He asked her what she was doing, holding the gun pointing upwards, and then set the gun on a shelf above the sink. Amey put on her tennis shoes and started to leave the motorhome. Houk tripped and fell trying to get out of the driver’s seat. Amey put her hands up as he tried to hug her. She went to the back of the motorhome, got her hoodie and her backpack, and then put her hand on his shoulder and said: “ ‘You’re a fucking asshole, but you’re my fucking asshole.’ ” He replied: “ ‘Well, I fucking love you too.’ ” He told her to take the gun and throw it away, and she left. He sat in the driver’s seat crying, and then he put the gun in a garbage bag and threw it into a trash can in the BestBuy parking lot.

Houk called and texted Amey and asked her to come back to the motorhome. When she didn’t return, he figured she was making good money. He pulled out of the parking lot to go to the laundromat, and immediately noticed police behind him. He pulled over to let the emergency vehicles pass and made a U-turn back toward the Starbucks. When he didn’t see her there, he thought she’d been arrested for trespassing, so he drove to Los Angeles to be near the jail if she was booked and released. He parked, changed and fed the kids, and then called her. When Amey answered the phone, “paranoia set in,” and he made the comment about a hostage situation with babies involved and also a loaded gun, thinking back to when he disarmed her after she threatened to kill him.

While Houk was on the phone, he saw a helicopter hovering over him with a high-powered rifle pointed at his windshield.^[3] He heard a radio report that he was wanted, armed and dangerous, and had kidnapped two children. Thinking the police would kill him, he drove north on the freeway toward Castaic (where he thought Amey was). He missed his exit and drove all the way over the Grapevine toward Bakersfield. He saw police activity behind him that he first thought might just be a traffic break. He then told a police negotiator on the phone he wanted them to bring Amey to him. They said they would but he was afraid to stop.

He pulled off the freeway in Bakersfield and drove through parking lots, afraid that the police would kill him. He decided he had to separate himself from the children so they wouldn’t see him get shot. He pulled over in the truck stop parking lot, but when he saw law enforcement get out with their rifles, he drew the curtains and drove to the orchard, where he pulled into the trees, put the motorhome in park, turned off the ignition, and threw the keys onto the floorboard. Both the children were buckled in. He ran out the door about 20 trees straight out, then 10 rows over, and lay down on the ground for four hours, within 150 yards of the motorhome.

When it was dark he walked out of the orchard to the truck stop, used the bathroom, and hitched a ride into Bakersfield. He hoped Amey would get the kids and the motorhome back and he wanted to apologize “[f]or all this hype and scare.” He charged his phone at a library and hopped a freight train on his way to Arizona, but was arrested the minute he got off in Barstow.

Houk admitted he had a prior felony conviction involving moral turpitude. The detectives had interviewed him back in Santa Clarita for about two hours. He lied when he told them he threw the gun away at the truck stop in Bakersfield. He admitted he called Amey’s phone from jail after he got her new number from child services, but he thought he was calling the children’s foster home. He never beat Amey.

The jury found Houk guilty on all counts and found all the allegations true.

DISCUSSION

1. Substantial evidence supports the convictions for kidnapping and child custody deprivation

Houk argues the trial evidence was insufficient to support his convictions for kidnapping and child custody deprivation. We review the entire record to consider “whether any rational trier of fact, not the reviewing court, could have been persuaded by the evidence beyond a reasonable doubt” to find that Houk was guilty of either crime, even if the record evidence allows for other possibilities. (People v. Francisco (1994) 22 Cal.App.4th 1180, 1192, italics added.)

The jury convicted Houk on counts 5 and 6, which charged a violation of section 207, subdivision (a): “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another county . . . is guilty of kidnapping.” When the victims are young children, “we have long recognized an alternative standard . . . . [T]he kidnapping of a minor can be accomplished without the same kind of force or fear applicable to adult victims provided that it was done for an improper purpose, because a minor is ‘too young to give his [or her] legal consent to being taken.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 714.) “[T]he only force required to kidnap an unresisting infant or child is the amount necessary to move the victim a substantial distance. [¶] [A] prosecutor must prove, as part of the case-in-chief, that the defendant moved the child for an illegal purpose or with an illegal intent.” (In re Michele D. (2002) 29 Cal.4th 600, 612.)

Houk argues no substantial evidence showed he had an illegal purpose or intent. But as the prosecutor argued, he moved the children with the illegal purpose of driving recklessly while fleeing a pursuing police vehicle. Houk does not challenge his conviction of a felony violation of Vehicle Code section 2800.2 in count 11. That section criminalizes reckless driving while evading police, requiring an intent to evade and driving with willful or wanton disregard for the safety of persons or property, which can be shown by establishing three or more traffic violations. (People v. Taylor (2018) 19 Cal.App.5th 1195, 1203.) Houk moved his two young children from Los Angeles to Bakersfield, intending to evade the police in full pursuit, hitting a parked car and running many red lights and stop signs, among other traffic violations. Substantial evidence supported his kidnapping convictions.

The jury also convicted Houk on counts 7 and 8, which charged a violation of section 278.5, subdivision (a): “Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation” is guilty of a crime punishable by up to three years in prison. The defendant acts maliciously if he wishes to vex, annoy, or injure another, or has the intent to do a wrongful act. (People v. Neidinger (2006) 40 Cal.4th 67, 79.) This malice requirement does not mean the crime requires specific intent, but ensures the defendant acted deliberately and intentionally, rather than accidentally and unintentionally. (People v. Jo (2017) 15 Cal.App.5th 1128, 1159.) Houk argues no evidence shows he acted maliciously.

We disagree. In recorded phone conversations after he drove off with the children, Houk refused to pull over or come and get Amey when she begged him to, and told her she would have to find him, come alone, and reconcile if she wanted to reunite with the kids. He knew the police had pulled back because “this is a hostage situation with babies involved and a loaded fucking gun.” Amey pleaded with Houk to tell her if the children were okay, where they were, and whether he would bring them back. He answered by commanding her to get on a bus to find them, and then said he had ditched the motorhome, was on the street with the kids, and couldn’t come get her, and he couldn’t guarantee he and the children would be where he told her to go. His own words are substantial evidence that he deliberately and intentionally deprived Amey of the custody of Levi and Abigail, and did not take them from her custody by mistake or accident.

2. The trial court properly imposed consecutive terms for kidnapping and child custody deprivation

The trial court sentenced Houk to a total of 31 years on count 5 and 25 years on count 6 (kidnapping), and imposed consecutive sentences of four years on each of counts 7 and 8 (child custody deprivation). Houk argues section 654 required the trial court to stay the terms imposed on counts 7 and 8.

Section 654 prohibits multiple punishment if separate offenses had a single objective. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) Objectives may be different even if simultaneous. (Id. at p. 952.) We uphold a trial court’s implied determination that the crimes had separate objectives if supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.)

Substantial evidence showed Houk’s illegal objective for kidnapping the children and taking them from Los Angeles to Bakersfield was to evade police pursuit and avoid arrest for (among other crimes) beating Amey. The victims of the kidnapping counts were the children. Substantial evidence also showed Houk’s different, even if simultaneous, objective to deprive Amey of custody of the children until he abandoned them in the almond orchard. The victim of the child custody deprivation count was Amey. Substantial evidence supported the consecutive sentences.

3. The trial court acted within its discretion when it excluded evidence of Houk’s alleged intoxication

Houk argues the trial court erred when it did not allow him to testify that he smoked marijuana laced with PCP on the beach in Malibu, before he beat Amey and threatened her with the loaded gun. The court has wide discretion to determine whether evidence is relevant and admissible. (People v. Kelly (1992) 1 Cal.4th 495, 523.)

Amey testified on cross-examination that Houk left the motorhome late on the night of April 30 to smoke some weed. At sidebar during Houk’s testimony, defense counsel sought permission to ask him if he had smoked marijuana that may have been laced with PCP during his walk on the beach in Malibu, to “help explain his memory, if he’s having difficulty recalling any of the events.” Counsel admitted there was no evidence PCP was involved. The court ruled it was not relevant. Houk repeatedly attempted to testify that he unknowingly ingested PCP and began to hallucinate after he returned to the motorhome, and the court sustained multiple objections by the prosecutor. The court again addressed the issue outside the presence of the jury, reminding defense counsel of its ruling and stating Houk had an excellent memory of events. The court saw “not a scintilla of evidence that any intoxicant had any effect on this defendant.” Defense counsel clarified she was seeking to introduce evidence of involuntary intoxication but she did not intend to call an expert to testify about the effects of intoxicants. The court ruled it would not give an instruction on intoxication. Houk continued to attempt to testify that he had been hallucinating, over sustained objections.

After the close of evidence, defense counsel requested instructions on voluntary and involuntary intoxication “regarding [Houk] voluntarily smoking pot, but involuntar[il]y ingesting PCP” because Houk did not know the marijuana was laced with PCP. The court reiterated there was no evidence Houk was impaired in any way, and the defense had not offered expert testimony about the effects of intoxicants.

Houk argues evidence that he might have been voluntarily intoxicated was relevant to show he could not form the specific intent to commit kidnapping, criminal threats, and child custody deprivation.^[4]

First, Houk’s counsel sought admission of his testimony about involuntary intoxication (the PCP) to show it may have affected his memory and hampered his testimony about the events inside the motorhome that night. As the trial court stated, however, Houk testified in great detail without any memory issues.

Second, even if counsel had raised the possible effect of voluntary intoxication on Houk’s mental state, the court would have been within its discretion to exclude the testimony. Kidnapping and child custody deprivation are not specific intent crimes. “[V]oluntary intoxication does not matter for whether someone is guilty of completed kidnapping.” (People v. Fontenot (2019) 8 Cal.5th 57, 69.) Voluntary intoxication does not negate malice, which as we explained above, is the mental state required for child custody deprivation. (People v. Berg (2018) 23 Cal.App.5th 959, 965-966.) Section 422, subdivision (a) does require the specific intent to make a verbal statement the victim will take as a threat. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1140.) But as we explained above, the trial court stated Houk’s testimony was inconsistent with an argument he was impaired by intoxication, and we agree the record contains no suggestion he was not capable of intending that Amey take his statements as threats.

No abuse of discretion occurred. And because there was no substantial evidence of voluntary intoxication, or that intoxication affected Houk’s ability to form specific intent, the trial court properly refused to give an instruction on voluntary intoxication. (People v. Roldan (2005) 35 Cal.4th 646, 716.)

4. The trial court did not abuse its discretion in denying Houk’s Marsden motion

Before trial began, Houk attempted to address the trial court directly with complaints about how the deputies recorded his statement. The court told Houk to talk to defense counsel, and Houk replied he could not say anything to counsel. The court reminded Houk he had been told not to address the court directly unless questioned. Houk stated, “I would ask for a Marsden^[5] hearing. I have conflicts of interest.”

The court held a hearing. Houk stated he had conflicts with counsel “since the first day we met.” Counsel immediately had made comments assuming his guilt and warned him he was looking at a long prison sentence, which upset him. She had addressed the charges only briefly and vaguely, made disrespectful comments, and gave him an “evil, dark stare.” He had asked her to review the police reports with him many times and she refused. He complained to the bar association and went pro per, and then they put her back on his case, which was “clearly a conflict of interest.” He had explained to her in detail that he was innocent. She showed him evidence too quickly, so he got the evidence himself when he was pro per. She failed to contact him about court dates, did not get a transcript of calls with the law enforcement negotiators, and did not answer immediately when he called.

The judge asked Houk if he had made a prior Marsden motion. He answered he had made one more than a year ago, and after it was denied, he exercised his Faretta^[6] rights and represented himself. He gave up his pro per status six months ago and had made no Marsden motions since. Counsel explained she had been reappointed over Houk’s objection.

The court asked Houk what his complaints were after counsel was reappointed. Houk said every time he talked to her she refused to discuss what she had said to him on the first day they met. Since her reappointment, the same animosity and conflict of interest had continued.

Counsel stated she thought there had been a “modified Marsden” when Houk opposed her reappointment, and detailed her conversations with him since. She did not believe there was any reason she was unable to represent Houk. The court found no showing that Houk’s right to effective assistance had been compromised, and denied the motion.

At a Marsden hearing on whether to replace a defendant’s appointed counsel, the trial court must give the defendant an opportunity to explain why he wants counsel replaced and to relate specific instances of counsel’s inadequate performance. (People v. Streeter (2012) 54 Cal.4th 205, 230.) Relief is warranted if the record clearly shows appointed counsel’s representation is inadequate, or when defendant and counsel “ ‘ “have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ ” (Ibid.) The trial court should grant the motion only when the defendant makes a substantial showing that a failure to order substitution would likely result in constitutionally inadequate representation. (Ibid.)

We review the denial of a Marsden motion for abuse of discretion. (People v. Taylor (2010) 48 Cal.4th 574, 599.)

Houk’s complaint about appointed counsel was that after he lost an earlier motion to replace her, represented himself for a period, and made an unsuccessful complaint to the state bar, she was reappointed and continued to show the same animosity toward him that he had noticed in their first meeting. “[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.” (People v. Silva (1988) 45 Cal.3d 604, 622.) A lack of trust in counsel, or an inability to get along on a personal level, is not an irreconcilable conflict. (People v. Crandell (1988) 46 Cal.3d 833, 860; People v. Streeter, supra, 54 Cal.4th at p. 229.)

Just before Houk requested the Marsden hearing, the trial court commented that defense counsel had prepared well and was doing her best for Houk. The court acknowledged Houk was a difficult client and counsel showed “incredible devotion” and patience. Houk’s statements at the Marsden hearing did not require the court to appoint new counsel. We see no abuse of discretion in denying the Marsden motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

ADAMS, J.*

^[1] All statutory references are to the Penal Code unless otherwise indicated.

^[2] Houk pleaded no contest before trial to a misdemeanor, transient’s violation of registration law (§ 290.011, subd. (a), count 13).

^[3] Detective Donnell testified the sheriff’s department does not maintain rifles in their helicopters unless (unlike on that day) the helicopter picked up a SWAT team.

^[4] Houk acknowledges his claimed unknowing ingestion of PCP would not support an involuntary intoxication defense, as he had voluntarily smoked the marijuana, itself an intoxicating substance. (See People v. Velez (1985) 175 Cal.App.3d 785,

793-794; People v. Gallego (1990) 52 Cal.3d 115, 183-184.) He assumes without conceding those authorities remain valid after California legalized recreational marijuana in 2016.

^[5] People v. Marsden (1970) 2 Cal.3d 118.

^[6] Faretta v. California (1975) 422 U.S. 806.

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