Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF050756 James S. Hawkins, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Raquel M. Gonzalez and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Preliminarily, we note this case presents the unfortunate scenario our Supreme Court posited in People v. Smith (1993) 6 Cal.4th 684 (Smith): “Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences. In People v. Makabali (1993) 14 Cal.App.4th 847, ... the trial court appointed second counsel to investigate a possible motion to withdraw a guilty plea on the basis of ineffective assistance of counsel. New counsel did not make the motion. On appeal, appointed appellate counsel, i.e., the third attorney, claimed (unsuccessfully) that the second was incompetent for not claiming the first was incompetent. The spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant’s legitimate interests.” (Id. at p. 695.) Here, similarly, through his third attorney, defendant claims not only that his trial attorney provided ineffective assistance, but also that a second attorney appointed to investigate defendant’s claims provided ineffective assistance. As we discuss below, we find no merit to defendant’s claims.
Defendant Harrison Lavergne, Jr., appeals from his conviction of murder of Ignacio Garcia (Pen. Code, § 187, subd. (a) (count 1)); willful and premeditated attempted murder of Miguel Estrada (§§ 664, 187, subd. (a) (count 2)); and assault with force likely to cause great bodily injury against Francisco Lemus (§ 245, subd. (a)(1) (count 3)). Defendant contends the trial court erred in (1) denying his Marsden motion to relieve his appointed trial counsel and substitute new counsel; (2) accepting the representation of a second attorney that defendant’s trial counsel had not provided ineffective assistance; and (3) subsequently appointing the second attorney to represent defendant and denying defendant’s Marsden motion to relieve her. We find no error, and we affirm.
All further statutory references are to the Penal Code.
From People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Case
In May 2005, Garcia and Flavio Torres lived in a trailer located inside a junkyard in Thermal where they and Lemus worked; Estrada lived in his van in the same junkyard. Lemus was a friend of defendant and had stayed at defendant’s house for a few days; Estrada had also visited defendant’s house several times. Neither Lemus nor Estrada had had any problems with defendant. Lemus admitted he was addicted to methamphetamine and used it as often as he could get it, sometimes daily. Lemus, Torres, and Garcia frequently used drugs together.
Shortly before May 1, 2005, a problem arose between defendant and an unidentified person at the junkyard. Garcia tried to intervene, but defendant told him not to get involved and that he did not want to see Garcia at the junkyard.
In the evening of May 1, 2005, Garcia, Lemus, Torres, and a woman identified only as Connie had used methamphetamine in Torres’s trailer. Garcia and Connie left, and a few minutes later, Lemus heard Garcia yelling for help and asking for someone to call an ambulance. Lemus went outside and saw defendant, who was standing next to the door of Garcia’s car, hitting Garcia, who was in the driver’s seat. Another man, whom Lemus had never seen before and could not describe, was also striking Garcia. Connie got out of the car.
Lemus heard Garcia ask defendant what was happening and heard defendant respond, “You’re gone” and “Fuck the ambulance.” Defendant continued to hit Garcia. Lemus asked what was happening, and defendant said, “He’s gone, and you’re gone, too.” Defendant then came over to Lemus and hit him on the face, nose, and stomach, knocked him to the ground, and kicked him in the face and body. Lemus sustained fractures to his nose and forehead. Lemus asked why defendant was hitting him, and defendant said, “It was on the contract.” At some point, Lemus saw Torres come out of the trailer and run away.
That same night, Torres sustained a stab wound to his neck and lacerations to his right shoulder. Defendant was not charged with Torres’s stabbing, and Torres did not testify at defendant’s trial.
Defendant went back to Garcia’s car and asked the man who was with him for “the blade.” Lemus saw defendant pull something out of Garcia’s body. Lemus then ran away. Garcia bled to death in his car as a result of multiple stab wounds.
Lemus ran to an acquaintance’s house, and that man drove Lemus back to his trailer park. The managers of the park called the police. Lemus was initially reluctant to tell the police who had stabbed Garcia, but he later called the police and identified defendant as the assailant. Lemus selected defendant’s photograph from a photographic lineup.
At about 11:00 the same night, Estrada left his van to urinate. On his way back, defendant and two or three other men attacked him and hit him. Defendant stabbed him nine times, inflicting life-threatening wounds. Estrada could not describe the other men because it was too dark.
A security guard had been on patrol in a nearby mobilehome park when some people flagged him down and told him someone had been stabbed. They brought the security guard to a trailer, where he saw Estrada lying on a couch and bleeding. The security guard called the sheriff’s office.
B. Defense Case
A sheriff’s department investigator testified he interviewed Lemus shortly after the incident. At first, Lemus said it had been too dark to identify his assailant, and Lemus seemed surprised when he learned someone had been found dead in the car. Lemus told the investigator he was afraid the assailants might find out who he was.
Later that day, Lemus contacted the investigator and identified defendant as his assailant. Lemus also told the investigator he had seen defendant and Garcia together the day before the incident, and everything had seemed fine between them.
C. Verdict and Sentence
The jury found defendant guilty of murder of Garcia (§ 187, subd. (a) (count 1)); willful and premeditated attempted murder of Estrada (§§ 664, 187, subd. (a) (count 2)); and assault with force likely to cause great bodily injury against Lemus (§ 245, subd. (a)(1) (count 3)). The jury found true as to count 1 the allegation of use of a deadly weapon, a knife. (§ 12022, subd. (b)(1).)
The trial court sentenced defendant to 25 years to life for count 1, with an additional year for the weapon use enhancement. The court imposed a consecutive life term for count 2 and a consecutive upper term of four years for count 3.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Denial of Marsden Motion as to Trial Attorney
Defendant contends the trial court erred in denying his Marsden motion to relieve his appointed trial counsel and substitute new counsel.
1. Additional Background
In March 2007, defendant brought a Marsden motion to relieve the public defender who was then representing him. The trial court granted the motion.
In September 2007, defendant brought a second Marsden motion to relieve his appointed counsel, Barbara Brand. Following a hearing, defendant withdrew the motion.
On September 9, 2008, immediately after the jury announced its verdicts, defendant stated he wanted to bring a motion for new trial on the ground of the ineffective assistance of his appointed trial counsel, Arnold Lieman. Defendant also asked that Lieman declare a conflict of interest, that new counsel be appointed, and that new counsel be given at least 90 days to prepare a motion for new trial. The trial court set the matter for a Marsden hearing.
At the Marsden hearing, defendant first stated that he wanted a discovery motion, because numerous witnesses had been interviewed and numerous audio and videotapes of their interviews had been recorded. However, the record indicates that defendant’s original counsel had requested a continuing order for discovery, and defendant conceded he had received the interviews. The trial court asked Lieman to respond, and Lieman stated he had used an investigator, “And there were a lot of witnesses that were suggested aren’t available. As the Court can surmise, this was a junkyard, a lot of transient people coming and going, a lot of people you couldn’t find, especially-we looked for Connie, too, who was there at the time the incident occurred....” Lieman stated he had reviewed an interview a detective had had with Connie, “and in that interview she did implicate [defendant].”
Second, defendant stated that one of the tapes was missing, that of “a girl, Shauna, ... who says her brother, he was the original suspect. He fit the description. And he was known for fighting with these people, you know.” The trial court asked Lieman to respond, and Lieman stated that he did not remember that specifically, but Shauna “wasn’t a percipient witness, ” and did not know “what impact her testimony, if any, would have on this case.”
Third, defendant stated he had asked that “a lot” of witnesses be interviewed, “and he never interviewed them.” Lieman stated he had had the benefit of the work of the public defender’s investigator, and his own investigator had done “a lot of investigation.”
Fourth, defendant stated that an investigator, Sergeant Dusek, had told him “that this guy, he looked all guilty.” Defendant said the sergeant had been present when “they” talked to Lemus and Estrada, and defendant had asked for his incident report, but had never received it, and he had asked that the sergeant be interviewed. The trial court asked Lieman to respond, and he stated there had been a report by Dusek, but he did not know “if there was anything that he said that would have been favorable or helped us in trial.”
Fifth, defendant noted “a lot of blood and fingerprints and shoe impressions” had been collected, and the blood evidence would have been inconsistent with Lemus’s and Estrada’s testimonies about where they had been attacked. The trial court asked Lieman to respond, and Lieman stated he did not see the relevance of such evidence. Lieman also pointed out that the officers who had arrived at the scene walked around the car where Garcia’s body was found and would likely have obliterated any footprints in the dirt.
Sixth, defendant claimed Richard Charles, who lived at the “tow yard, ” had told an investigator that Garcia had pulled a gun on him, and defendant wanted Charles to testify, “but nobody ever got ahold of him.”
Seventh, defendant stated that “Eric” had said “this guy” went around shooting in the air and threatening people, and defendant wanted his investigator to talk to him and have him testify.
Eighth, defendant said a witness had stated that shoe impressions led from the incident to a shack where “the original suspect... George Auclair” lived, and knives had been found in the shack.
Ninth, defendant stated another witness, Norma Hernandez, had said that Auclair was a troublemaker, and he “wanted the audio tape to see what he... told her.”
Tenth, defendant stated he had asked the defense investigator to interview Torres because Torres’s testimony was inconsistent with that of Lemus. The trial court asked Lieman to respond, and the court observed, “it’s fortuitous that he didn’t testify, they would have added another count, right?” Lieman responded “that was my feeling, also, Your Honor.”
Eleventh, defendant stated that Lieman had failed to challenge his arrest and the search warrant. The court observed that even if there was an issue with the search warrant, no evidence that was seized from defendant’s house was admitted at trial, so there had been no prejudice. Lieman confirmed that defendant had been arrested in his front yard, and that no evidence seized from defendant’s house had been admitted at trial.
Twelfth, defendant argued there had been no “995.” The trial court asked Lieman to respond, and Lieman stated that Lemus had testified at the preliminary hearing that defendant had been the assailant, and his testimony clearly would have been enough to withstand a motion under section 995.
Thirteenth, defendant complained that 60 minutes of Lemus’s taped interview was missing. In further discussion, it was clarified that defendant himself had received only the transcript of the second of two tape recordings of Lemus’s interview, not that defense counsel had never received the complete transcript.
Fourteenth, defendant stated he had wanted to testify in his own behalf. He conceded he had discussed the matter with counsel, who had advised him not to do so. The trial court asked Lieman to respond, and Lieman stated he had advised defendant it was not in his best interest to testify, and that defendant had agreed.
Fifteenth, defendant stated some shells had been found in Estrada’s van and in Garcia’s car. The court observed it had found the shells irrelevant. Defense counsel agreed the shells were irrelevant.
Sixteenth, defendant stated that photographs of his knuckles had been taken when he was arrested, and he wanted the photographs to be shown to the pathologist for the purpose of showing that his hands would have been bruised if he had hit the victims, but the photographs did not in fact show bruising. The trial court asked Lieman to respond, and Lieman stated he did not remember if there were photographs of defendant’s hand with no injuries.
Seventeenth, defendant stated he wanted to have a Pitchess motion on officers “because [one of the officers was] known for coercing witness[es], having testimony thrown out because of the way he coerces witnesses.”
From Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The trial court asked Lieman if he had investigated any alibi. Lieman responded that he had talked to defendant about that, and there were no alibi witnesses who could have been called. Lieman stated that his investigator had talked to defendant several times. Defendant interjected that the investigator had talked to him only once, and that was when defendant had asked the investigator to interview a sergeant who had told defendant that Lemus “looked all guilty.”
The trial court appointed independent counsel, Brenda Miller, to investigate defendant’s claims; however, the trial court did not relieve Lieman. On September 23, 2008, Miller filed a declaration stating that after investigation, she had found no merit to defendant’s claim of ineffective assistance of counsel. She had spoken with defendant to ascertain the basis for his claim and had learned defendant believed Lieman had “refused to talk with the witnesses designated by the defendant.” She had reviewed the file and determined that Lieman had retained an investigator to interview all the witnesses defendant had identified; the investigator had in fact interviewed the witnesses he was able to locate; and the investigator had made a good faith effort to locate the missing witnesses. She concluded, “Upon my reading of the transcript of the trial in this matter and upon my interview with Mr. Lieman, I found no evidence that the defendant was denied effective assistance of counsel and I came to the conclusion that defendant’s said motion for a new trial was without merit.”
The trial court held a hearing on September 26, 2008, at which Miller repeated her conclusion that Lieman had not provided ineffective assistance. She stated her investigation had consisted of reviewing the preliminary transcripts of the trial and having conversations with the prosecutor, trial counsel, and defendant. The trial court thereupon relieved Miller. Defendant stated he did not believe Miller had done an adequate job of investigating; he still wanted to file a motion for new trial; and he wanted to represent himself because he had “no choice.” The trial court granted defendant’s request to represent himself and relieved Lieman.
2. Standard of Review
A trial court has discretion whether to grant substitution of counsel, and we review the trial court’s decision for an abuse of discretion. Such an abuse is shown when failure to appoint replacement counsel “would ‘substantially impair’ the defendant’s right to effective assistance of counsel.” (People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
3. Analysis
“Criminal defendants are entitled to competent representation. If a defendant cannot afford to hire an attorney, one must be appointed for the defendant. [Citations.]” (Smith, supra, 6 Cal.4th at p. 690.) “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].” (People v. Crandell (1988) 46 Cal.3d 833, 854, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) However, a mere disagreement over trial tactics does not warrant replacement of counsel. (Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1022, disapproved on another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069 & fn. 6.) The choice of which witnesses to call is a fundamental trial tactic. (People v. Williams (1970) 2 Cal.3d 894, 905.)
Here, defendant brought a Marsden motion (his third) requesting new counsel for the purpose of bringing a new trial motion on the ground he had received ineffective assistance of counsel at trial. Although ineffective assistance of counsel is not a statutory ground for granting a new trial (§ 1181) courts have recognized a new trial may be granted on that ground (See, e.g., People v. Stewart (1985) 171 Cal.App.3d 388, 393-394 (Stewart), overruled on another ground in Smith, supra, 6 Cal.4th at p. 693; People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
When a defendant makes a posttrial request for the appointment of new counsel to prepare a motion for new trial on the ground of ineffective assistance of counsel, the court must hold a hearing to allow the defendant to explain the reasons for the request. (Stewart, supra, 171 Cal.App.3d at pp. 395-396.) “‘If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 346.)
The trial court did not relieve Lieman, but rather appointed Miller to investigate the adequacy of Lieman’s representation. Defendant argues that was a “procedural impropriety.” In Smith, supra, 6 Cal.4th 684, the court observed, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.” (Id. at p. 695.) Nonetheless, defendant has failed to identify any prejudice attributable to the alleged “procedural impropriety.”
Defendant next contends that the fact that he “presented a detailed list of counsel’s shortcomings substantial enough to cause the trial court to find [he] had made a ‘colorable claim’ of IAC in itself demonstrate[d] that the schism between [him] and trial counsel was substantial, ” and the trial court therefore erred in failing to grant his Marsden motion as to Lieman. The mere number of purported shortcomings, without more, cannot demonstrate a conflict between a defendant and his counsel sufficient to require the granting of a Marsden motion. Rather, “Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.]” (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).)
In Eastman, the defendant requested at sentencing to withdraw his plea on the ground he had received inadequate assistance of counsel. (Eastman, supra, 146 Cal.App.4th at p. 691.) The trial court did not conduct a Marsden hearing, but instead appointed a second attorney to investigate the claims. (Eastman, supra, at p. 692.) The second attorney “informed the court he reviewed the trial file, read the plea transcript, interviewed [the defendant’s trial counsel], and talked to the district attorney on the case, ” as well as conferred with the defendant several times and had an investigator interview him. (Ibid.) The second attorney stated he would not be filing a motion to withdraw the plea because he had found no legal or factual basis on which to do so. (Id. at pp. 692-693.) The defendant appealed on the ground the trial court had erred in failing to hold a Marsden hearing, and the court found reversible error because, even assuming it was proper for the court to delegate its duty to inquire into the defendant’s complaint, the trial court “was still obligated to make a record sufficient to show the nature of [the defendant’s] grievances and the court’s response to them. While [the second attorney] reported his findings to the court, he did not detail what he found, but instead offered his own conclusions regarding the merits of [the defendant’s] claims. No part of this procedure satisfied the requirements of Marsden. Here, the court in effect discharged its Marsden obligation by appointing an independent attorney to investigate [the defendant’s] complaints about his attorney, and that attorney opined that the first had rendered effective assistance; the court simply adopted that opinion without ever putting [the defendant’s] complaints, or the basis for their rejection, on the record.” (Eastman, supra, at pp. 696-697.)
Similarly, in People v. Mendez (2008) 161 Cal.App.4th 1362, a defendant who was convicted of battery on a fellow inmate appealed on the ground the trial court had failed to conduct a Marsden inquiry into his claims of ineffective assistance of counsel. His trial attorney informed the court at the sentencing hearing that the defendant was making a new trial motion on the basis of incompetent representation of counsel. (Mendez, supra, at p. 1365.) The court inquired of the defendant, who stated there had been eight witnesses but none had been called in his defense, and other exculpatory evidence, including recordings of telephone calls, was never introduced. (Id. at pp. 1365-1366.) The trial court asked what the witnesses would have testified to, and the defendant started to explain (id. at p. 1366), but the trial court cut off the explanation and appointed new counsel to represent him for the sole purpose of investigating whether there was a basis for a motion for new trial based on incompetency of counsel. The new counsel “later reported his opinion after a ‘review of the file’ that ‘those issues’ were not ‘appropriate at this time for a motion... on that basis.’” (Ibid.) The trial court then terminated the appointment of the new attorney, and the defendant’s original trial attorney continued to represent him at sentencing. (Ibid.) On appeal, the court held that the trial court had failed to comply with the requirements of Marsden to permit the defendant to articulate the causes of his dissatisfaction with counsel; to allow the attorney to respond and to question the attorney as necessary to determine his or her veracity; and to make a record sufficient to show the nature of the defendant’s complaints and the court’s response. (Mendez, supra, at pp. 1367-1368.)
This case is easily distinguishable from both Eastman and Mendez. First, as set forth above, the trial court permitted defendant to articulate in great detail, on the record, the reasons for his dissatisfaction with his trial counsel. Second, as also set forth above, the trial court allowed trial counsel to respond and questioned him about defendant’s specific complaints. Moreover, the trial court’s statements on the record indicate the court found no merit to many of defendant’s complaints. Although the trial court delegated to Miller the task of investigating defendant’s complaints, her report showed what she had done to investigate.
Defendant further notes he had filed a complaint against Lieman with the State Bar as evidence of the conflict that existed between them. However, a defendant cannot create a conflict merely by filing a lawsuit against his counsel. (People v. Horton (1995) 11 Cal.4th 1068, 1106.) For example, in People v. Hardy (1992) 2 Cal.4th 86, the defendant sued his attorney in federal court claiming inadequate representation and then claimed a conflict of interest existed. The court rejected that claim because the attorney was willing to remain on the case, and the federal suit lacked merit. (Id. at p. 132.) Thus, the fact that defendant filed a complaint against Lieman did not mean the trial court was required to grant defendant’s Marsden motion to relieve him.
In summary, we conclude that defendant has failed to establish that the trial court abused its discretion in denying his Marsden motion to relieve Lieman.
B. Defendant’s Claims with Respect to Miller
Defendant next argues the trial court erred in (1) accepting Miller’s representation that defendant’s claim of ineffective assistance of trial counsel was meritless because her investigation had been inadequate, and (2) later allowing Miller to be appointed to represent him and then denying his Marsden motion to relieve her and appoint substitute counsel.
1. Adequacy of Miller’s Investigation of Lieman
Defendant contends Miller conducted an inadequate investigation of defendant’s claim that his trial counsel provided ineffective assistance. He asserts Miller “did little more than ask trial counsel what he’d done.” In other words, defendant contends Miller herself provided ineffective assistance.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) A claim of ineffective assistance of counsel may be rejected when it is shown that any deficiencies in counsel’s performance could not have inured to the defendant’s benefit in light of the evidence. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
A defendant claiming inadequate assistance of counsel “must establish ‘prejudice as a “demonstrable reality, ” not simply speculation as to the effect of the errors or omissions of counsel.’” (In re Clark (1993) 5 Cal.4th 750, 766.) In other words, the defendant “‘must demonstrate that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover.’ [Citation.] Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted had the evidence been presented, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.] The incompetence must have resulted in a fundamentally unfair proceeding or an unreliable verdict. [Citation.]” (Ibid.) Here, although defendant lists various steps he contends Miller should have undertaken, he has made no showing of the nature and relevance of the evidence that counsel failed to discover or present.
In People v. Beasley (2003) 105 Cal.App.4th 1078, 1093, the defendant contended his trial attorney was ineffective because he failed to interview someone who was present during one of the alleged assaults and who purportedly would testify that Beasley did not strike the victim. The court held: “For many reasons, this contention fails to state a prima facie claim of ineffective assistance. Beasley failed to show his attorney knew or should have known the witness’s identity and significance. He also failed to show the witness was available to be interviewed by his attorney. Accordingly, he failed to show deficient performance. Moreover, the attorney’s failure to interview the witness clearly had no effect on the outcome of the trial. Assuming Beasley meant to allege his attorney should have interviewed and called the witness to testify at trial, his contention still fails to show prejudice, in that he failed to provide a declaration from the unidentified witness setting forth the substance of the proposed testimony and the witness’s availability to testify at trial. For all of these reasons, Beasley’s contention is insufficient.” (Ibid.; see also People v. Cunningham (2001) 25 Cal.4th 926, 1005 [holding that the defendant failed to show any prejudice from his counsel’s failure to produce expert witnesses or to re-examine witnesses].)
Here, defendant argues he was prejudiced because, although he was convicted of first degree murder, “the question of motive was never resolved.” It is elementary that motive is not an element of murder. (See People v. Snow (2003) 30 Cal.4th 43, 97-98; see also 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 4, pp. 202-204.) Defendant cannot, therefore, demonstrate prejudice based on the failure to show motive.
Defendant next argues that “[f]urther investigation may uncover witnesses who can provide a basis for a lesser verdict of second degree murder or even manslaughter.” The prejudice element of a claim of ineffective assistance of counsel requires a showing of “‘prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.’” (People v. Gamache (2010) 48 Cal.4th 347, 391.) Defendant’s speculation that potential favorable evidence might exist falls far short of that standard. (See, e.g., People v. Lucas (1995) 12 Cal.4th 415, 448 & fn. 5 [a defendant “must do more than surmise that defense experts might have provided more favorable testimony”]; People v. Kaurish (1990) 52 Cal.3d 648, 689-690 [defendant failed to establish that retesting of physical evidence would have been likely to produce a different result].)
We conclude defendant has failed to show ineffective assistance of counsel.
2. Denial of Marsden Motion as to Miller
Defendant’s final contention is that the trial court erred in denying his Marsden motion to relieve Miller because the record showed that an irreconcilable conflict existed between them.
a. Additional background
As noted, after the trial court denied defendant’s Marsden motion as to Lieman, the trial court granted defendant’s request to represent himself. However, on November 17, 2008, defendant asked that new counsel be appointed for him, and the court reappointed the conflict panel.
The conflict panel selected Miller to represent defendant. At a hearing on December 3, 2008, Miller stated defendant had told her he intended to ask for a Marsden hearing (defendant’s fourth Marsden request), and if the request to relieve her was denied, he planned to proceed in propria persona. Defendant confirmed that was his wish.
The trial court held a Marsden hearing. Defendant stated his belief that Miller had not adequately investigated his claim of ineffective assistance of counsel because she had taken only four days to do so. He stated Miller had told him she had not looked at any of the discovery, and she had not reinvestigated the case. Defendant then repeated the alleged shortcomings of his trial attorney. Miller described what she had done to investigate defendant’s claim of ineffective assistance of counsel for the purpose of filing a new trial motion and repeated her conclusion that such claim was meritless. Defendant also stated he had requested his trial transcripts from Miller, but she had failed to provide them. Miller explained she had not done so because when she had had the trial transcripts, she had been appointed only to review the claim of ineffective assistance of counsel and was not then defendant’s attorney of record. She stated she had forwarded defendant’s request to Lieman, and the transcripts were no longer in her possession. Defendant stated he had sent a letter to Lieman on November 13, 2008, requesting his discovery but had received no response.
The trial court denied the Marsden motion, stating there had not been an irrevocable breakdown of the relationship, but rather a difference as to tactics. Defendant requested to resume his in propria persona status. The trial court granted the request, and he thereafter represented himself at sentencing.
At the sentencing hearing, defendant made an oral motion for new trial on the grounds of prosecutorial misconduct, jury misconduct, and insufficiency of the evidence. The trial court denied the motion.
b. Analysis
The record, as set forth above, shows that the trial court gave defendant the opportunity to state his complaints against Miller on the record. The trial court gave Miller an opportunity to respond. Although defendant contended Miller should have herself reinvestigated the case to determine Lieman’s adequacy, the trial court was not required to accept defendant’s view as to what she should have done. Likewise, the fact that defendant disagreed with Miller’s conclusions did not demonstrate that her representation had been inadequate.
We conclude the trial court conducted a proper Marsden hearing as to defendant’s claims against Miller, and the trial court did not abuse its discretion in denying defendant’s request to relieve her. (People v. Roldan, supra, 35 Cal.4th at p. 681.)
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., KING, J.