Filed 11/19/18 P. v. Barnette CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Kenneth W. Barnette shot and killed Darryl Hill and shot at the vehicle occupied by some of Hill’s family members. A jury convicted him of first degree murder, attempted murder, and shooting at an occupied vehicle. The trial court sentenced him to a determinate term of five years for shooting at an occupied vehicle, an indeterminate term of 25 years to life for murder, life with the possibility of parole for attempted murder, and two terms of 25 years to life for firearm enhancements.

On appeal, defendant contends:

(1) the trial court erred by not instructing the jury on the lesser included offense of voluntary manslaughter based on imperfect self-defense, sudden quarrel, and heat of passion;

(2) the trial court erred by denying defendant’s motion for mistrial after some jurors witnessed an incident between defendant’s family members outside the courtroom, and it abused its discretion by not investigating the circumstances of the incident;

(3) the trial court erred by denying defendant’s motions to substitute appointed counsel and by failing to hold a hearing outside the presence of the prosecutor as to one of defendant’s complaints about defense counsel;

(4) defense counsel provided constitutionally ineffective assistance of counsel by failing to request a continuance to locate a potential defense witness;

(5) there was insufficient evidence to sustain defendant’s conviction for attempted murder;

(6) there was insufficient evidence to sustain defendant’s conviction for shooting at an occupied vehicle;

(7) an alternative theory of shooting at an occupied vehicle cannot be used to affirm the conviction because it was not presented to the jury; and

(8) remand is necessary so that the trial court can exercise its newly granted discretion concerning whether to strike two firearm-discharge enhancements.

Only the last contention has merit. We conclude:

(1) the evidence did not support instructions on voluntary manslaughter;

(2) the trial court adequately investigated the incident outside the courtroom and admonished the jury not to let it influence their verdicts;

(3) the trial court properly denied defendant’s motions to substitute appointed counsel;

(4) defense counsel was not constitutionally ineffective for not requesting a continuance to locate a potential defense witness;

(5) sufficient evidence supported the attempted murder conviction;

(6) sufficient evidence supported the conviction for shooting at an occupied vehicle;

(7) reliance on an alternative theory of shooting at an occupied vehicle was unnecessary on the facts of this case; and

(8) remand is necessary to allow the trial court to exercise its newly granted discretion concerning whether to strike or dismiss the firearm-discharge enhancements.

We will remand the matter to permit the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h),[1] as recently amended. In all other respects, we will affirm the judgment.

BACKGROUND

Because defendant does not raise issues on appeal relating to his identification as the shooter, we need not recount facts and investigation concerning his identification.

On June 15, 2013, Maurion C. drove a white Volkswagen Jetta to an AM/PM store and gas station on Mack Road in Sacramento. His uncle, Darryl Hill, was in the front passenger seat. In the backseat were Maurion’s brother, Marquis C., as well as Maurion’s 18-month-old daughter. The three men were all in their early twenties. All gas pumps were being used, so they waited for a pump to open up. When one did, Maurion drove toward the gas pump and turned around to back into position at the pump. As he was backing into position, a silver Infiniti driven by defendant began backing toward the pump, blocking Maurion from completing the maneuver into place at the pump. Maurion honked at the Infiniti, but neither car moved.

Hill got out of the Jetta, telling the others in the car that he was going to ask the driver of the silver Infiniti to move, and walked around the back of the Infiniti, approaching the driver’s side of that car. As Hill approached, he gestured with his hand. Defendant said, “Why are you walking up on my car?” or “Why are you walking up on me?” He got out of the Infiniti and fired a handgun at Hill and at the Jetta six times. Immediately after firing the gun, defendant reentered the Infiniti and drove away.

Hill, who was five feet eight inches tall and weighed 189 pounds, suffered five gunshot wounds, two of which could have been caused by the same bullet. He died on the scene, and his death was caused by multiple gunshots to the left chest and abdomen. Maurion C., in the driver’s seat of the Jetta, was shot in the left arm. Marquis C., in the back seat of the Jetta, was hit in the left hand.

People’s Exhibit No. 30, a DVD, contains a surveillance camera recording of the homicide. In the video recording, the Jetta and the Infiniti both pull in front of the AM/PM store. The Jetta is in a parking space facing away from the store and toward the pumps, while the Infiniti is in a marked walkway facing toward the store. After a vehicle leaves the gas pumps, the Jetta moves forward in the direction of the gas pumps but turns to back into position at a pump. As the Jetta starts to back up, the Infiniti backs up towards the gas pump and appears to block the Jetta from completing its positioning at the pump. After both cars have been stopped for about eight seconds, Hill exits the front passenger door of the Jetta and, going in front of the Jetta and in back of the Infiniti, walks toward the driver’s side of the Infiniti. As defendant exits the driver’s seat of the Infiniti, Hill gestures sideways and back toward the back of the Infiniti. The men appear to be about four or five feet apart. As Hill stands with his hands down at his side, defendant moves laterally away from the Infiniti, raises his right hand, and begins shooting in Hill’s direction. Hill turns and tries to flee but almost immediately falls to the ground. At the point in the recording when defendant begins shooting, after he has moved laterally away from the Infiniti, both Hill and the Jetta are in the same line of fire. After shooting, defendant reenters the Infiniti and drives away.

An audio recording of the event is also found on People’s Exhibit 30. In it, some honking is heard, followed by six gunshots.

The district attorney charged defendant by information with murder of Darryl Hill (§ 187, subd. (a) -- count one); shooting at an occupied vehicle (§ 246 -- count two); attempted murder of Marquis C. (§§ 187, subd. (a), 664 -- count three); and attempted murder of Maurion C. (§§ 187, subd. (a), 664 -- count four). As to each count, the information alleged defendant discharged a firearm causing death or great bodily injury. (§ 12022.53, subd. (d).)

A jury convicted defendant of the murder of Hill (count one), the shooting at an occupied vehicle (count two), and the attempted murder of Maurion C. (count four). As to each of these three counts, the jury found true the firearm-discharge allegation. The jury acquitted defendant of the attempted murder of Marquis C. (count three).

The trial court sentenced defendant to a determinate five-year term (the middle term) for shooting at an occupied vehicle. It also sentenced defendant to an indeterminate term consisting of 25 years to life for the murder, life with the possibility of parole for attempted murder, and two terms of 25 years to life for the firearm discharge enhancements associated with the murder and attempted murder. Each of the terms were imposed consecutively, resulting in an aggregate term of five years, plus 82 years to life. The trial court concluded that the firearm-discharge enhancement was inapplicable to shooting at an occupied vehicle.

DISCUSSION

I

Defendant contends the trial court erred by (A) rejecting his request for voluntary manslaughter instructions based on the theory of imperfect self-defense (CALCRIM Nos. 571, 580), and (B) not instructing sua sponte on voluntary manslaughter based on a sudden quarrel or heat of passion (CALCRIM No. 570).

“[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. [Citation.] When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on the lesser included offense. [Citation.] Voluntary manslaughter is a lesser included offense of murder. [Citation.] [¶] On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 181 (Booker).)

A

“Imperfect self-defense is the killing of another human being under the actual but unreasonable belief that the killer was in imminent danger of death or great bodily injury. [Citation.] Such a killing is deemed to be without malice and thus cannot be murder. [Citation.]” (Booker, supra, 51 Cal.4th at p. 182.) To justify the instruction on imperfect self-defense, there must be substantial evidence the defendant actually believed he must defend himself from imminent danger of death or great bodily injury. (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201; In re Christian S. (1994) 7 Cal.4th 768, 783.)

Here, there was no substantial evidence defendant actually believed he must defend himself from imminent danger of death or great bodily injury. As support for his argument, defendant cites the following circumstances: the driver of the Jetta honked at him; there were three young adults in the Jetta; Hill’s approach to the driver’s side of the Infiniti was a hostile act; Hill made a gesture with his hand; Hill may have spoken to defendant; and Hill was big, at five feet eight inches and weighing 189 pounds.

Missing from defendant’s argument is anything about what defendant actually believed. He did not testify, and there was no other evidence that he had an actual belief that he needed to defend himself from imminent death or great bodily injury. (See People v. Rogers (2006) 39 Cal.4th 826, 883 [“Neither defendant nor his experts testified defendant actually believed he had to kill Clark to defend himself from such an imminent threat.”].) The circumstances cited by defendant do not compensate for the absence of evidence about what defendant actually believed.

In denying the request for instructions, the trial court noted: “The court finds that there is no substantial evidence supporting a voluntary manslaughter instruction. There are no words or -- there’s no evidence of any words having been said by the decedent. While there was on the videotape some evidence of a hand gesture made by Mr. Hill when he exited the car, this alone does not constitute substantial evidence. [¶] There is no evidence that Mr. Hill was rushing up to the car. He was some distance from the driver’s door when the defendant pulled the gun and shot. So there does not appear to be any substantial evidence of self-defense. [¶] There is no evidence of any argument or any words exchanged between the decedent and the defendant. And while there is some evidence elicited that the decedent was a big guy and weighed over 180 pounds, it appears, based upon the court’s review of the video, that there were no aggressive gestures or actions in the videotape. [¶] So the court finds that there is no substantial evidence supporting . . . imperfect self-defense.”

We agree. With no evidence of defendant’s belief and no evidence of aggression beyond horn honking and Hill’s walking over to the Infiniti while gesturing at the Infiniti (not at defendant), there was insufficient evidence that defendant actually believed in the need to defend himself to merit consideration.[2]

B

While the defense did not request a voluntary manslaughter instruction based on sudden quarrel or heat of passion, the trial court, nonetheless, ruled that there was insufficient evidence to justify such an instruction.

Voluntary manslaughter on a sudden quarrel or heat of passion theory has both subjective and objective components. (People v. Moye (2009) 47 Cal.4th 537, 549.) “To satisfy the subjective element . . . , the accused must be shown to have killed while under ‘the actual influence of a strong passion’ ” induced by the victim’s provocation. (Id. at p. 550.) The passion aroused may be any “ ‘ “ ‘violent, intense, high-wrought or enthusiastic emotion’ ” ’ [citation] other than revenge.” (People v. Breverman (1998) 19 Cal.4th 142, 163.) To satisfy the objective element, the heat of passion must be a result of sufficient provocation -- that is, conduct by the victim “sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Moye, supra, at p. 550.) “To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection.” (People v. Beltran (2013) 56 Cal.4th 935, 949, italics omitted.) Both heat of passion and adequate provocation “must be affirmatively demonstrated.” (People v. Lee (1999) 20 Cal.4th 47, 60.)

Defendant relies on the same facts for this argument as he does for an imperfect self-defense instruction, as discussed above. The argument, however, is without merit because the evidence was insufficient to merit consideration on either the objective or subjective component.

The circumstances preceding the homicide were not sufficiently provocative to cause an ordinary person of average disposition to act rashly or without deliberation and reflection. No reasonable person would rashly shoot someone over a dispute about who was entitled to be next at the gas pump, even considering the honking and Hill’s walking toward the Infiniti.

II

Defendant contends the trial court abused its discretion in denying a motion for mistrial after some of the jurors witnessed an incident involving defendant’s family members in the hall outside the courtroom, and in not investigating the circumstances of the incident.

A

During the trial, an incident took place in the hallway outside the courtroom. Defense counsel described the incident, which he did not personally observe, as follows:

“Obviously, I was in here while some sort of commotion occurred outside. And in going outside, Ms. Strawder, [defendant’s] sister, was very emotional. She was on the ground crying, bawling, couldn’t be controlled.

“It’s my understanding in talking to Detective Shrum that there were words exchanged between Mr. Strawder and an unknown male that was something along the lines of a snitch. Mr. Strawder did not react kindly to that. I believe at that point Mrs. Strawder broke down, started bawling. The detectives and those involved obviously broke up the situation.

“However, when I went outside, there was at least two jurors sitting right outside the door and were part of this -- were right where Mr. Strawder and his wife were standing at the time this occurred. At least the two that I saw.

“Detective [Higgins], I think, took Ms. Strawder away.”

After a brief discussion concerning the identity of the detective, defense counsel continued:

“Took Ms. Strawder away to actually take her outside the presence of the jury.

“While talking to Detective Shrum, a few -- he didn’t give me a number -- of the other jurors were coming from the elevator area and got very close to this incident while it was occurring. I don’t know who they were, but by the time I got there, they sort of disbursed. It was quite a large group.

“So based on that and what happened, I would move for a mistrial at this point in time. I think based on [an in-court discussion the trial court had with a juror who asked to be excused] right before this, with the video we just saw [probably a reference to the surveillance video of the homicide], this is a very emotional case, and I don’t think based on what happened outside this courtroom that [defendant] can get a fair trial.”

Defense counsel added: “I think the problem we have is the altercation occurred between two sets of [defendant’s] family.”

The trial court denied the motion for mistrial and addressed the jury. The court said: “[Y]ou cannot let anything that happens outside of this courtroom [] affect your decision or your deliberations in any way. It is not evidence. And the only thing you can do in deciding and making a decision in this case is based upon the evidence and the testimony that you receive in this courtroom and not anything outside of this courtroom.”

The trial court then asked whether any jurors had witnessed the incident. Five jurors and an alternate responded that they had witnessed the incident. The trial court asked each of them whether having witnessed the incident would influence their verdict, and each replied that it would not.

Later in the trial, a member of the audience cried out “That’s my son” in reaction to a video showing the victim, and one of the jurors cried when she saw the video. Based on these circumstances, defense counsel renewed the motion for mistrial. The trial court did not expressly deny the renewed motion, but it agreed with the prosecutor that there was no basis for it.

B

“ ‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]’ ” (People v. Jennings (1991) 53 Cal.3d 334, 380.)

While defendant cites authority concerning when a mistrial should be granted, he does not make an argument that the trial court abused its discretion in denying the motion. Instead, he moves directly to the question of whether the trial court should have conducted further investigation into what happened outside the courtroom. We do the same.

C

Concerning the argument that the trial court should have investigated further into what the jurors witnessed outside the courtroom, defendant argues the trial court was on notice that good cause to discharge a juror existed.

Preliminarily, we note that whether there was good cause to discharge a juror is different from the question of whether the trial court abused its discretion in denying a motion for mistrial. In his heading of this argument, defendant does not mention good cause to discharge a juror. “Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; see Cal. Rules of Court, rule 8.204(a)(1)(B).) Therefore, he forfeited consideration of the juror discharge issue.

In any event, the argument has no merit.

Defendant quotes People v. Burgener (1986) 41 Cal.3d 505, 519-520, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 755-756: “[O]nce a juror’s competence is called into question, a hearing to determine the facts is clearly contemplated. [Citations.] Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review. [Citations.]” There is no indication on this record that further investigation would have provided a basis for juror discharge.

In the courtroom hall, a member of defendant’s family called another member of defendant’s family a snitch, and both the recipient of the comment and her husband reacted emotionally to the comment. There was no dispute concerning what happened outside the courtroom, and the prosecutor expressed no disagreement with defense counsel’s characterization of the incident. The jurors were not directly involved in the incident but only witnessed it. Each of the jurors who witnessed the incident said that it would not affect their duties as jurors. The jurors’ competence was not fairly called into question. This record does not support an argument that the trial court should have inquired further into the incident or its effect on the jurors.

III

Several times during the trial, defendant expressed dissatisfaction with defense counsel’s representation. On some of those occasions, the trial court held a formal hearing outside the presence of the jury and the prosecutor. In each instance, however, the trial court refused to replace appointed counsel. On appeal, defendant contends the trial court erred under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

A

“[C]riminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney.” (Marsden, supra, 2 Cal.3d at p. 123.)

“ ‘A defendant “may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.” [Citations.] The law governing a Marsden motion “is well-settled. ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the 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 [citations].’ [Citations.]” [Citation.]’ ” (People v. Jackson (2009) 45 Cal.4th 662, 682, quoting People v. Memro (1995) 11 Cal.4th 786, 857.)

We review the denial of a Marsden motion for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (People v. Smith (2003) 30 Cal.4th 581, 604.)

B

Defendant made three Marsden motions and made various other complaints to the court about his appointed counsel. The first Marsden motion, which was denied, related to a prior defense attorney, Paris Coleman, who later withdrew. The remaining Marsden motions related to attorney J.P. Brennan.

In the first Marsden hearing, concerning attorney Coleman, which occurred after a preliminary hearing but before trial, defendant complained that counsel had too many other cases, postponed meetings with defendant, postponed court dates, did not contact defendant promptly after returning from vacations, failed to file motions as requested by defendant, raised his voice at defendant, failed to review discovery, stared blankly at defendant as if he were not listening during their meetings, failed to contact potential witnesses, used his cell phone on unrelated matters during meetings with defendant, left a meeting on a personal matter without accomplishing anything in the meeting, spoke highly of the deputy district attorney, discussed defendant’s case with members of defendant’s family without defendant’s approval, and laughed and walked out when defendant said he wanted to file a Marsden motion.

Attorney Coleman responded that the attorney-client relationship had been difficult. He said: “It’s my intent to talk with him about getting somebody to represent him because he needs someone he can trust and depend on. I tried to be that person. I believe I have been that person but clearly I have not.” Finding no deficiency in the representation, the trial court denied the Marsden motion and encouraged defendant to work together with counsel.

Later, Attorney Coleman withdrew from the case and was replaced by attorney Brennan.

Still before trial, defendant made a second Marsden motion. Defendant explained that he felt strongly about how he wanted to defend the case, but attorney Brennan disagreed with the approach. The trial court explained to defendant that trial strategy was up to the defense attorney. Attorney Brennan explained that defendant wanted to defend based on identification -- that he was not the person who killed Hill. Given the evidence, attorney Brennan did not think that was the most effective strategy.

The trial court denied the second Marsden motion. It determined that a difference of opinion on trial strategy was not sufficient cause to relieve defense counsel.

During the prosecution’s case-in-chief at trial, defendant made a third Marsden motion. He said: “I’m going to lose if [attorney Brennan] continues to represent me because he’s ineffective.” Defendant complained that defense counsel did not effectively cross-examine two prosecution witnesses and did not ask questions they had talked about before trial. Responding, attorney Brennan said: “[Defendant] in my opinion refuses to come to any realistic view of this case. His last blow is because Mr. Chapple in his statement said he was going to Oakland. Today he said Berkeley. So he thinks that’s the smoking gun that apparently will exonerate him. [¶] As for Mr. Strawder, it was the cup either had water or bleach in it, and that was apparently the smoking gun that would exonerate him. [¶] I’ve explained that, obviously, to [defendant] that strategy and tactics is my call; however, based on the way the case is proceeding or the way he wanted the case to proceed -- well, basically, I told him in my opinion I didn’t think I.D. was a good defense in this case. He apparently thought it was and wants to proceed that way. [¶] The court’s seen the evidence so far. Pearl, his wife, was not very helpful to us. And I just -- I don’t know what else to do with this. I’ve told him this. He just doesn’t want to hear what I’m telling him.”

Defendant discussed several ways he felt defense counsel should have questioned witnesses differently. Defendant was also unhappy that defense counsel talked to prosecution witnesses about evidence and showed them video evidence without defendant’s permission.

The trial court denied the third Marsden motion. It said the motion was untimely and “would result in a disruption of the orderly process of justice.” The trial court also found that the differences between defendant and defense counsel were over trial strategy and that attorney Brennan had been properly representing defendant.

After the denial of the third Marsden motion, defendant continued to express his dissatisfaction with attorney Brennan’s trial strategy in open court, which we characterize as “complaints” to differentiate them from the Marsden motions. One of the complaints (hereafter the first complaint) came after the prosecution’s third-to-last witness, a detective who supervised the investigation at the crime scene. While the prosecutor was outside the courtroom, attorney Brennan informed the trial court that defendant wanted to address the trial court and that he assumed it was another Marsden motion. Defendant responded: “No.” The trial court said to the prosecutor when he reentered the courtroom: “While you stepped out, [defendant] indicated that he wants to put something on the record. I stopped him because you were out of the courtroom. Mr. Brennan thought it could be another Marsden motion. [Defendant] indicates it is not.”

Defendant then said, in open court with the prosecutor present, that he had been assaulted by officers in the jail. He also said he had received paperwork from attorney Brennan and had not had sufficient time to review it. He felt unprepared to proceed.

The trial court excused the prosecutor. When defendant tried to go on speaking, the trial court asked defendant to wait until the prosecutor left the courtroom.

After the prosecutor had left the courtroom, the trial court explained why it wanted defendant to wait. Defendant responded: “I’m not some kid. I don’t know why you’re talking to me in that tone.” When the trial court started to explain its frustration with defendant, defendant interrupted: “Because I’m trying to fight my case myself because of my attorney?” The trial court asked defendant to “afford the court some respect,” and defendant said: “I don’t respect this court at all.” He continued: “You denied every motion and everything I say. That’s what I said.”

The trial court asked defendant what his concerns were, and defendant said: “I voiced my concerns in full extent yesterday. I already told you all these things that are going on. Now there’s more stuff that happened last night.” Defendant continued to complain about his treatment at the jail and his inability to read the paperwork because of how he was treated at the jail. Then the prosecutor came back and trial resumed.

The prosecution’s second-to-last witness was a pathologist who testified concerning Hill’s wounds and cause of death. When attorney Brennan declined to cross-examine the pathologist, defendant complained in open court about attorney Brennan (the second complaint). He said: “He’s going to make me run my own trial. He’s working with the DA.” When the trial court and an audience member tried to calm defendant down, he said: “Fuck you,” and “Fuck this trial, man.” Defendant added: “He’s on the stand and lying and shit. He’s not even objected or nothing.”

At the end of the defense case, defendant was upset that some hearsay had been admitted while hearsay that he felt was favorable to him was not admitted (the third complaint). The trial court explained that there are exceptions to the hearsay rule. The trial court also explained that, if defendant had questions about evidentiary rulings, he should ask attorney Brennan. Defendant responded: “I filed plenty of Marsdens. I keep getting denied. I’m fighting my case through him by myself. I’m not getting any help. Where’s the stuff that he wrote down that he wanted to ask the witnesses? There’s nothing. He has nothing in front of him . . . .”

Attorney Brennan said: “This may be another Marsden, your honor.” And the trial court said: “It’s not a timely motion and it is denied to the extent that you’re asking the court, again, to relieve Mr. Brennan as your counsel. So we can [] proceed.”

After the trial court discussed jury instructions and just before closing arguments, in open court, attorney Brennan told the trial court defendant wanted “to make more of a record” (the fourth complaint). Defendant said: “It’s just funny to me because I see the faces as I know I’m not going to get anything granted but I still have to put it on record in case of appeal or anything. [¶] My attorney only came to see me once during this whole trial, and that was only to drop off papers I was already supposed to already have had. I’m, like, trying [to] explain to my attorney that I was unprepared, but he wouldn’t do anything for me. I know I can’t get any Marsden motions on basis and grounds and it’s too late and all this and that, but I don’t understand how I can be sitting here as a defendant telling the court that my attorney is not doing anything for me whatsoever, and it’s apparent in the courtroom when the jury is present and everyone was present in here that I’m literally writing down everything to send -- my attorney hasn’t done anything for me. [¶] I’ve asked for Marsden before trial. They haven’t been granted. What do I have to do to get a Marsden granted before trial? I asked for a Marsden before trial. Now you guys are telling me it’s too late. What do I have to do?”

Attorney Brennan told the trial court that he had been to visit defendant in jail 10 times since he was assigned the case. He said: “It’s 10 visits. It’s a constant change of story from [defendant].” Attorney Brennan also told the trial court that defendant had elected not to testify and that defendant had given him a four-page document to read as closing argument. Attorney Brennan needed some time to talk to defendant and explain why much of the arguments could not be made because there was no evidence to support them.

Defendant continued to complain that attorney Brennan was not helping him and that he was not willing to say the things in closing argument that defendant wanted him to say. He wanted to read his own closing statement, but the trial court said he was not allowed to make arguments for which there was no evidence and that the trial court was not going to allow defendant to make his own closing argument.

C

Defendant contends on appeal that the Marsden motions were improperly denied. Specifically, he asserts the trial court erred by (1) failing to grant the Marsden motions based on irreconcilable differences between defendant and defense counsel, (2) finding defendant’s Marsden motions and complaints about defense counsel untimely, and (3) not excusing the prosecutor and holding a Marsden hearing after later developments in the trial.

Defendant argues the trial court should have granted the Marsden motions because of irreconcilable differences between defendant and defense counsel. Defendant asserts that “a close reading of the record shows that much more than mere tactical disagreement was present. Both [defendant] and counsel had such contempt for one another that it was impossible for them to work together.” We disagree that the record sufficiently shows that defendant and defense counsel were embroiled in irreconcilable differences or had such contempt for each other that they could not work together. They certainly disagreed over trial strategy and were each frustrated, but that is not sufficient to support granting a Marsden motion. (People v. Dickey (2005) 35 Cal.4th 884, 922 (Dickey).) Defendant has not shown that a failure to substitute appointed counsel actually resulted in a substantial impairment or denial of his right to assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.) The trial court did not abuse its discretion in denying those motions.

Defendant also argues the trial court erred in finding defendant’s Marsden motions and complaints about defense counsel were untimely. Under some circumstances a court may conclude that a request to substitute appointed counsel is untimely. A trial court may conclude that a late-trial substitution of counsel would be “ ‘ “ ‘a disruption of the orderly processes of justice unreasonable under the circumstances . . . .’ ” ’ (See People v. Carr (1972) 8 Cal.3d 287, 299; People v. Morgan (1980) 101 Cal.App.3d 523.)” (People v. Maese (1980) 105 Cal.App.3d 710, 723 (Maese) [request to substitute appointed counsel on last day of trial untimely]; see also People v. Williamson (1985) 172 Cal.App.3d 737, 745 (Williamson) [request to substitute appointed counsel during jury selection untimely].)

Defendant’s argument that the trial court erred by denying the third Marsden motion as untimely is without merit because the trial court also denied the motion based on the fact that defendant simply did not agree with attorney Brennan’s trial strategy. While untimeliness of a motion may justify denial of a Marsden motion (People v. Lara (2001) 86 Cal.App.4th 139, 151), a finding that the disagreement between defendant and defense counsel is over trial strategy also justifies denial of a Marsden motion. (Dickey, supra, 35 Cal.4th at p. 922.) The finding that the Marsden motion was untimely was unnecessary to the ruling.

Defendant’s argument that his later complaints about counsel should be construed as Marsden motions and were improperly denied as untimely is also without merit. Defendant’s first complaint about defense counsel was not a Marsden-type complaint. Defendant, who understood what a Marsden motion was, denied that he was making a Marsden motion, and the focus of his complaint was that he had not had time to review paperwork before coming to court.

Defendant’s second, third, and fourth complaints about counsel occurred late in the trial and substitution at that point would have unreasonably disrupted the orderly processes of justice. (Maese, supra, 105 Cal.App.3d at p. 723; Williamson, supra, 172 Cal.App.3d at p. 745.) The prosecution’s case-in-chief was almost complete when defendant made his second and third complaints about defense counsel, and the trial court was preparing for closing arguments when defendant made his fourth and final complaint about counsel. The trial court had conducted three Marsden motions (two of which concerned attorney Brennan), in which defendant made it clear that he wanted to direct trial strategy regardless of the legal viability of that strategy or the legal knowledge and experience of appointed counsel. While defendant later complained about what attorney Brennan had not done during the trial, his complaints continued to be, in essence, that attorney Brennan was not conducting the trial in the way defendant wanted it to be conducted. Under these circumstances, the trial court did not err by concluding that a motion to substitute appointed counsel was untimely and would unreasonably disrupt the orderly processes of justice.

Defendant further asserts the trial court erred by discussing some of defendant’s complaints about defense counsel and disagreements with defense counsel in the presence of the prosecutor and by failing to hold a new Marsden hearing. As support for this assertion, defendant observes that Marsden motions must be heard outside the presence of the prosecutor because defense strategy or evidence may be discussed. (People v. Dennis (1986) 177 Cal.App.3d 863, 871.) We reject this assertion because defendant’s complaints about defense counsel, even if construed as motions to substitute appointed counsel, were made orally in open court and the court properly determined that they were untimely. In other words, the complaints did not require a Marsden hearing. Defendant provides no argument or authority for the proposition that such circumstances required, or could practically have required, the exclusion of the prosecutor.

IV

Defendant contends his trial counsel provided constitutionally ineffective assistance of counsel because he did not request a continuance to locate a potential witness.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) “ ‘ “The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.” [Citation.]’ ” (Ibid.)

During the defense case, on the morning of Thursday, June 4, 2015, defendant’s counsel informed the court: “Yesterday, . . . I told court and counsel that [defendant] requested Detective Quinn and Toby Gray . . . . I yesterday sent out my investigator to track down Mr. Gray at his house. [¶] We tracked down the owner of the residence he was living in. They informed us that he’d been evicted and they had no information for him. Further efforts to find Mr. Gray were unsuccessful at this point in time.” The trial court said they would have one more witness, Robert Quinn, who was a Sacramento Police detective, and then take a recess to consider jury instructions and exhibits.

Detective Quinn testified that he was one of the officers called to the scene of the shooting. He made contact with Toby Gray, who said he observed the shooting. Defense counsel then tried to elicit from Detective Quinn what Gray said about the circumstances of the shooting. For example, defense counsel asked whether Gray saw the passenger of the Jetta reach for what Gray thought was a gun and whether defendant and the victim were about to fight. The trial court sustained hearsay objections to those questions and they were not answered. After discussions between the trial court, counsel, and the defendant outside the presence of the jury, which included discussion of jury instructions, the defense rested. The case was given to the jury later that day.

Defendant argues: “It is clear from the questioning of Detective Quinn that Toby Gray was a material witness to the shooting. Counsel, as evidenced by his questions to Quinn, believed Gray had given a statement to Quinn wherein Gray stated the passenger of the Jetta, i.e., the decedent Darryl Hill, was reaching for what Gray believed was a gun. Counsel also believed that Gray told Quinn the two individuals were about to fight. [Record citation.] Counsel had tentatively planned on using Gray to support a defense of imperfect self-defense. [Record citation.] [¶] Yet counsel failed to request a brief postponement to see if additional investigation could locate Gray.”

Based on this argument, defendant claims defense counsel’s representation fell below an objective standard of reasonableness. The claim fails for two reasons. First, we can only speculate about how Toby Gray would have testified. There was no offer of proof, only unanswered questions. And second, we can only speculate about whether the defense could have located Toby Gray if the defense had requested and obtained a continuance. Efforts had already been made to locate him, but they had failed.

Speculation does not support a claim of ineffective assistance of counsel. (People v. Mai (2013) 57 Cal.4th 986, 1018.) Therefore, this record does not support defendant’s assertion that defense counsel’s representation fell below an objective standard of reasonableness or that there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. His contention that defense counsel provided ineffective assistance of counsel is without merit.

V

Defendant contends there was insufficient evidence of the attempted murder of Maurion C. (count four) because there was no substantial evidence defendant intended to kill anyone other than Hill.

“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [61 L.Ed.2d 560].) Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ (People v. Redmond (1969) 71 Cal.2d 745, 755.)” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We draw every reasonable inference in favor of the jury’s verdict. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)

The jury was properly instructed that, to convict defendant of attempted murder, it must find defendant (1) “took at least one direct but ineffective step toward killing another person” and (2) “intended to kill that person.” (CALCRIM No. 600.)

Defendant observes that Hill was between defendant and the Jetta. He also observes that, in the surveillance video recording of the shooting, it does not appear that defendant shifts his aim toward the car at any point after he started firing. From this, defendant concludes that he intended to kill Hill only.

But this is merely one reasonable interpretation of the evidence. Another reasonable interpretation of the evidence is that defendant intended to kill Hill and Maurion C., who were both in defendant’s line of fire. The surveillance video shows that, when defendant stepped out of the Infiniti, Hill was not between him and the Jetta. But defendant moved laterally away from the Infiniti. This movement lined up both Hill and the Jetta in defendant’s aim. The jury could reasonably infer defendant made this movement so that he could simultaneously shoot to kill Hill and Maurion C.

Furthermore, Marquis C. testified defendant aimed at the Jetta. He said: “So [Hill] was basically falling to the ground and [defendant] started pointing the gun at us and he started shooting.” This testimony also supported an inference that defendant intended to kill Maurion C. Defendant claims that this testimony was incredible because it does not appear in the surveillance video that defendant adjusted his aim. However, in light of defendant’s positioning to put Hill and the Jetta both within his line of fire, the evidence was sufficient that defendant was shooting at the occupants of the Jetta, as well as at Hill.

The evidence was sufficient to support the conviction for attempted murder of Maurion C.

VI

Making virtually the same argument, defendant contends the evidence was insufficient to support the conviction for shooting at an occupied vehicle (count two) in violation of section 246. He argues: “[T]he evidence fails to demonstrate the shooter was discharging the weapon ‘at’ the car or its occupants. Since there is no evidence the shooter was aiming at or otherwise shooting ‘at’ the car or those inside it, there has been a failure of proof.” The trial court instructed the jury that defendant is guilty of this crime if he “willfully and maliciously shot a firearm [¶] . . . [¶] . . . at an occupied motor vehicle” For the reasons we have already explained, this contention is without merit. Defendant actually shot at the vehicle, hitting its occupants.

VII

Defendant next argues an alternative theory of shooting at an occupied vehicle cannot be used to affirm the conviction because it was not presented to the jury.

California courts have interpreted section 246 to include not only shooting directly at an occupied dwelling or vehicle, but also shooting “in such close proximity to the target that [defendant] shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1356, fn. omitted; see People v. Chavira (1970) 3 Cal.App.3d 988, 993.) This broad interpretation of section 246 “only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that [striking an inhabited or occupied target] will occur.” (Overman, supra, at p. 1357, fn. omitted.)

Referring to this alternative conscious-indifference theory, defendant contends his conviction on count 2 for violation of section 246 must be reversed because the jury was not instructed on that alternative basis for liability and there is no indication the jury relied on such a theory in finding defendant guilty on that count. This contention would have been relevant only if we had found there was insufficient evidence defendant shot at the Jetta. In other words, defendant raises the absence of a jury instruction only to prevent reliance on this alternative conscious-indifference theory to sustain the conviction in the event we agree there was insufficient evidence defendant shot at the Jetta. We need not consider the conscious-indifference theory because we conclude there was sufficient evidence defendant actually shot at the occupied Jetta, as discussed in the previous parts of the discussion.

VIII

The trial court sentenced defendant to two consecutive terms of 25 years to life for the sentence enhancements of discharging a firearm causing death or great bodily injury under section 12022.53, subdivision (d). Since sentencing, the Legislature has amended section 12022.53 allowing a sentencing court to strike or dismiss the enhancement in the interest of justice. (Stats. 2017, ch. 682, § 2 (Senate Bill No. 620), effective January 1, 2018; 12022.53, subd. (h).) Defendant contends we must remand for the trial court to exercise its newly granted discretion.

In People v. Woods (2018) 19 Cal.App.5th 1080, this court decided that the amendments to the firearm enhancement statutes in Senate Bill No. 620 giving the trial court discretion to strike those enhancements are retroactively applicable to all cases not yet final. (Id. at p. 1090.) However, we need not remand if doing so would be futile. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)

The Attorney General argues remand would be futile in this case because the trial court said defendant’s crimes constituted a “depraved, callous act,” for which defendant did not take responsibility. The trial court also said defendant’s contempt for the trial process and the judicial system reflected his “values as a human being, which ultimately culminated in this senseless, brutal act that you committed.” In addition, the trial court considered the probation report and found several aggravating circumstances and no mitigating circumstances.

We conclude the statements by the trial court do not establish that remand would be futile. The trial court imposed a term of 25 years to life for the murder and life with the possibility of parole for attempted murder, but it made no statement hinting about what it would have done if it knew it had discretion to strike or dismiss the firearm enhancements, which added another 50 years to life to the sentence.

We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should be provided the opportunity to exercise its discretion in the first instance. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [noting it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way].)

DISPOSITION

The matter is remanded to the trial court to exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), and, if the trial court strikes or dismisses one or both of the firearm-discharge enhancements, to resentence defendant and prepare an amended abstract of judgment. In all other respects, the judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

DUARTE, J.