People v. Samaniego CA4/1 ( 2021 )


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  • Filed 10/19/21 P. v. Samaniego CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                          D076709
    Plaintiff and Respondent,
    v.                                                          (Super. Ct. No. SCD264152)
    JOSE LUIS SAMANIEGO,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Peter L. Gallagher, Judge. Affirmed.
    Cynthia Grimm, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
    Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, on
    behalf of Plaintiff and Respondent.
    INTRODUCTION
    On a January 2001 night, while Edgar M. was leaving Gloria I.’s home
    and walking toward the car his friend Alexander C. (Alex) was driving, Edgar
    encountered two teenagers. One fired several bullets at Edgar, hitting him in
    the chest, the flank, and the arm. One of the bullets hit Alex in the head,
    causing Alex’s death. Edgar worked with police to develop a composite
    sketch of the shooter, but no one was arrested in connection with the crime
    until more than a decade later, when confidential informants supplied police
    with information leading police to reopen the cold case.
    After reopening and investigating the shooting incident, police arrested
    Christopher Aranda, Enrique Palomino, and Jose Samaniego. Ultimately,
    police charged Samaniego with the attempted murder of Edgar and the
    murder of Alex. At trial, Aranda admitted he had been nearby at the time of
    the shooting but testified he did not participate in it and had no knowledge it
    was going to occur. He told the jury that immediately following the shooting,
    Palomino implied Samaniego was the shooter. Palomino testified he was
    present at the shooting, and he named Samaniego as the shooter.
    Samaniego’s defense was primarily misidentification, arguing he did
    not fit the description of the shooter. There was also some evidence that
    Samaniego may have acted in self-defense.
    A jury convicted Samaniego for Alex’s murder and the premeditated
    attempted murder of Edgar (Pen. Code,1 §§ 187, subd. (a), 189, & 664), as
    well as the intentional and personal discharge of a firearm in the commission
    of the crimes (§ 12022.53).
    He appeals the convictions, contending a multitude of errors justifies
    their reversal. Specifically, he maintains the court erred by (1) refusing
    requests to include witness impeachment evidence of prior arrests and
    misdemeanor convictions; (2) offering CALCRIM Nos. 3471 and 3472 as jury
    instructions; (3) declining to instruct the jury on prior threatening conduct;
    1     Unspecified section references are to the Penal Code.
    2
    (4) failing to instruct the jury with a pinpoint instruction regarding
    transferred intent under a self-defense theory; (5) refusing to offer
    instructions for voluntary manslaughter; (6) failing to give a direct
    instruction regarding adoptive admissions; and (7) including eye-witness
    certainty as a factor for consideration. Samaniego also contends that (8) in
    closing arguments, the prosecution improperly called for the jury to bring
    justice to the victims and misstated evidence regarding the confidential
    informants; (9) the errors resulted in ineffective assistance of counsel;
    (10) even if individual errors were harmless, cumulatively they were
    prejudicial; (11) the court improperly denied requests to replace appointed
    counsel made through a series of Marsden2 hearings; and (12) the court erred
    by failing to hold an ability-to-pay hearing before imposing a restitution fine
    under section 1202.4 as well as various fees and assessments, and
    alternatively that the failure to request such a hearing constituted ineffective
    assistance of counsel. We disagree with Samaniego and conclude his
    contentions lack merit. Accordingly, we affirm the judgment.
    BACKGROUND AND PROCEDURAL FACTS
    The People charged Samaniego in count 1 with the murder of Alex
    (§ 187, subd. (a)) and with the intentional and personal discharge of a firearm
    in the commission or attempted commission of the murder (§ 12022.53,
    subd. (d)); and in count 2 with the premeditated attempt to murder Edgar
    (§§ 187, subd. (a), 189, & 664), during which he intentionally and personally
    discharged a firearm (§ 12022.53, subd. (d)).
    During the pendency of the case, the electorate passed Proposition 57,
    the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which
    prohibits prosecutors from charging juveniles with crimes directly in adult
    2     People v. Marsden (1970) 
    2 Cal.3d 118
    , 123 (Marsden).
    3
    court. (People v. Superior Court (Lara) (2018) 
    4 Cal.5th 299
    , 303.) The
    Supreme Court held the law applied retroactively (id. at p. 314), and
    Samaniego successfully moved to remand his case to juvenile court because
    he was under age 18 at the time of the crime. The People requested
    Samaniego be transferred to criminal court and treated as an adult.
    Following briefing and a hearing on the matter, the juvenile court transferred
    Samaniego’s case back to criminal court.
    The matter proceeded to trial in August 2019.
    The People’s Case
    In January 2001, Edgar lived in the San Diego area with his family and
    was dating Gloria I.,3 who lived in the Encanto area. Gloria had a one year
    old and a two year old with Aranda. Gloria and Aranda were on-again, off-
    again, and in January 2001, they were both dating other people, and she
    lived alone with their children. Aranda was aware Gloria was seeing Edgar,
    but he was also trying to work things out with her.
    Gloria lived in a home situated below another house. To access her
    home, a person had to walk down the side of the main house, then down 15-
    20 steps to her home. Gloria’s door was about five steps to the right of the
    bottom of the stairs; the street was not visible from her front door.
    Aranda’s grandmother lived next door to Gloria, and he lived nearby.
    He spent a lot of time at his grandmother’s house, visiting her daily, and he
    visited Gloria frequently as well.
    Edgar was not familiar with Gloria’s neighborhood, but he would stop
    at her house to give her rides, and he bought things for her, like food and
    diapers.
    3     Gloria I. was Gloria O. before she was married.
    4
    Not long before the shooting, Edgar and Aranda ran into each other in
    front of Aranda’s grandmother’s house. There was no physical interaction,
    but Edgar stepped out of his car, and Gloria pulled him back inside. Edgar
    testified that Aranda had seemed to appear out of nowhere, and when he told
    Gloria he did not want any problems, she said there would be none.
    On January 27, 2001, Edgar spent time with his friend Alex. They
    used Edgar’s car, with Alex driving because he liked the vehicle. Edgar did
    not have a cell phone, so he used Alex’s phone to call Gloria and tell her that
    he was on his way to her home.
    Gloria did not want Edgar to stop by because Aranda was there, but
    Edgar said he was coming anyway. Aranda left Gloria’s to ask his mother if
    she could babysit that night.
    Alex parked across the street from Gloria’s house, and Edgar told him
    to stay in the car. Aranda knew what kind of car Edgar drove, and he saw a
    car resembling Edgar’s near Gloria’s house. He was concerned he might get
    jumped by Edgar and anyone with him, so Aranda went to look for someone
    to back him up.
    Aranda drove six to eight blocks away, where he saw a group in the
    street in front of the elementary school. He stopped to ask Palomino if he
    would back up Aranda. He told Palomino he wanted Palomino to come in
    case there was more than one guy. Palomino got into Aranda’s car, and
    Samaniego got in the car, too. Aranda did not know Samaniego, but he had
    seen him in the neighborhood, where Samaniego was known as “Pelón,”
    which means “bald,” a nickname Samaniego had from the time he was a baby
    because he did not have a lot of hair.
    Aranda drove back to Gloria’s house with Palomino and Samaniego and
    parked catty corner from the house. Aranda told the other two to wait and
    5
    have his back. Then he exited his vehicle and walked down the stairs to
    Gloria’s house.
    While Aranda was gone, Edgar went to see Gloria. Gloria told him she
    did not want any problems, and she told him she was trying to get back
    together with Aranda.
    Aranda and Edgar ran into each other on the stairs outside Gloria’s
    home. The two men exchanged words; Edgar told Aranda he understood that
    this was Aranda’s family, that Aranda could have Gloria, and he was leaving.
    Aranda replied, “Okay, Cool. Everything’s cool.” The two shook hands, then
    Edgar walked back up the stairs.
    Edgar’s Testimony About the Shooting
    Edgar testified that after he and Aranda shook hands, Aranda did not
    seem angry with him or threaten him. He walked up the stairs toward his
    car, and Aranda followed behind. When Edgar reached the top of the stairs,
    he saw two “youngsters” or “peewees” standing in front of the house. One of
    them said, “East side,” as Edgar passed them. Edgar turned as if to say,
    “What?” then laughed and kept walking. The person said, “East Side
    Rascals,” or something similar again, and Edgar turned toward them. Edgar
    had interpreted the statement to mean the person talking was in a gang, and
    when he turned, one said, “This is what’s up,” with a gun pulled out, pointed
    at Edgar. The person holding the gun began firing the weapon. Edgar saw
    Aranda behind the two youngsters, but then Aranda vanished or took off
    running when the shooting started.
    Bullets hit Edgar in the chest, so he began running toward the car Alex
    was driving and jumped in through the passenger side window. When he
    looked back, he saw the shooter was still shooting. He heard the two males
    running, and he could hear more shots, so he told Alex to go. Alex put the car
    6
    into drive and plowed into a house one or two doors down. Edgar hit his head
    during the crash and was knocked out. After he came to, he went to the front
    door of the house and knocked. He was bleeding and gasping for air, and he
    called out that he had been shot, then he collapsed inside the home.
    The Injuries
    Alex suffered an inoperable gunshot wound to the head, resulting in his
    death.
    Edgar suffered three gunshot wounds. One was in his chest. A second
    wound was to his right flank, and it lodged in his abdomen. Doctors
    performed surgery to determine the extent of the damage, and they
    discovered the gunshot to the chest lacerated the liver and the diaphragm,
    and the gunshot to the flank lacerated the bottom half of the right kidney and
    lodged near the spine. He suffered bleeding in the chest and blood clotting,
    which required a second surgery six days after the first one. A third bullet
    was discovered lodged in his arm, near the wrist, about 18 months after the
    shooting.
    Edgar’s Descriptions of the Perpetrators
    When Gloria visited Edgar in the hospital, he told her he thought
    Aranda was involved.
    Edgar described the shooter as Hispanic and the other male as possibly
    mixed race or Puerto Rican. He said the shooter had slicked-back, collar-
    length hair and was probably about five foot, eight inches tall. He
    remembered the shooter wearing a long-sleeved black sweater with two gray
    stripes across the chest area and both sleeves. He estimated the shooter’s
    age at 16 or 17.
    7
    He said the second suspect was taller than the first one and had short
    or shaved hair, like a fade. He said this suspect was heavier than the
    shooter.
    Edgar worked with police to develop a composite drawing. The
    composite does not show someone with collar-length hair because Edgar
    remembered that later. Edgar testified the suspects were clean-shaven, but
    in the composite the suspects were not.
    Although Edgar spoke with police in 2001, he did not remember talking
    to them immediately following the shooting or initially telling an officer that
    Aranda shot him or later saying that it was Aranda’s homeboys who shot
    him. He remembered telling an officer that one of the suspects said
    something like “East San Diego” before shooting him.
    Gloria’s Testimony about the Shooting
    After the two men shook hands and Edgar left, Gloria remembered
    Aranda following her into her house, where they talked. She could not
    remember one way or the other if Aranda was with her when she heard the
    gun shots.
    After the shooting stopped, she ran up the stairs to see what happened,
    then returned home and checked on her children. She locked the door to her
    house, then walked back up the stairs and saw Edgar’s car crashed into a
    neighbor’s home.
    Gloria heard Edgar yelling from inside the neighbor’s house, shouting,
    “Kiki did it.” “Kiki” was Aranda, and she remembered thinking, “How did
    Kiki do this? How? When? How?”
    After Aranda had been questioned by police, he told Gloria he had not
    shot Edgar.
    Aranda’s Testimony
    8
    Aranda testified that he stayed back with Gloria to talk for a few
    minutes after Edgar left, until he heard pops that sounded like a gun, at
    which time he ran up the stairs toward the street. At the top of the stairs, he
    saw a reflection of brake lights on a retaining wall, and he ran the other way,
    toward his house. As he ran home, Palomino popped out of the bushes, and
    when Aranda asked Palomino what happened, Palomino said, “That fool
    tripped.” Palomino followed Aranda home, where Palomino waited outside
    until Aranda brought him a phone to use. A few minutes later, Palomino’s
    mother showed up to give him a ride.
    Gloria called Aranda and said the police were at her house, requesting
    him to return, which he did. Aranda spoke with the police and followed them
    to the station, where he consented to a gun powder check on his hands. He
    did not mention Palomino or Samaniego being there.
    At his family’s suggestion, Aranda left town four days later because he
    feared retaliation against him or his family if he remained in the
    neighborhood. He was concerned it looked like he had an altercation with
    Edgar, and in his neighborhood, people did not cooperate with police because
    it put them or their family in danger. He never moved back because he
    feared someone would try to kill him or his family.
    Aranda admitted he had participated in gang activity when he was
    younger, but he distanced himself from gang activity before the shooting
    incident.
    He testified there was no discussion with Palomino or Samaniego about
    bringing a gun, and he did not know anyone had a gun. After the shooting,
    he did not ask Palomino what was meant by Palomino’s statement “that fool
    tripped,” and he did not want to know. He said Palomino never specifically
    told him what happened.
    9
    Enrique Palomino’s Testimony
    Palomino told the jury he had consumed three or four little drinks
    before Aranda picked him up. Aranda said he was going to argue with
    someone at Gloria’s house. He did not say he wanted to beat up anybody or
    shoot anybody, and he did not tell Palomino to watch out for anybody.
    Palomino did not have a gun with him, and he did not ask Samaniego to join
    them; Samaniego just did.
    Once they arrived, the three of them exited Aranda’s vehicle and
    walked up the street toward Gloria’s house together. Aranda went down the
    stairs, and Palomino and Samaniego stayed behind.
    Palomino did not see anyone come up the stairs, but he saw a person
    get in a car, which drove to the corner, then U-turned in front of Palomino.
    The car was facing away from Palomino and Samaniego when it stopped.
    The person in the passenger seat exited the vehicle. He was big, and he was
    wearing a big jacket. He asked Palomino and Samaniego where they were
    from, which Palomino understood to mean the man was in a gang. Palomino
    thought the guy had a gun because he thought the person was in a gang, and
    the person made a motion like he was reaching for a gun. Palomino was
    about 10 feet away, and he responded by backing up. Palomino did not see
    Samaniego’s gun, but he saw Samaniego shoot Edgar. Palomino ran to
    Aranda’s house, going a different direction from Samaniego.
    He called his mom, and she picked him up at Aranda’s house. Later,
    Palomino told Aranda that Samaniego had shot the guy.
    He explained that he did not tell police what happened because he had
    not done anything; he was just there. If he had told police that he saw
    Samaniego shoot Edgar, he and his family could get in trouble with people in
    the neighborhood.
    10
    Palomino thought Samaniego was bald at the time of the shooting. He
    remembered that Samaniego had a tail, but he could not remember if
    Samaniego had one on the day of the shooting.
    When police contacted Palomino in 2015, he did not tell them what
    happened because he feared someone would harm his family if he talked.
    After an attorney was appointed, he decided to make a deal with the
    prosecutor so that he would not have to serve a life sentence for first degree
    murder and could instead serve three years for accessory after the fact. He
    said he did not shoot either Edgar or Alex, but he may have told Aranda that
    he would take credit for it rather than expose himself and his family to the
    danger of testifying that Samaniego was the shooter. He also said that since
    agreeing to testify, he had received threats and feared for himself and his
    family.
    When questioned about his relationship with Samaniego, Palomino
    admitted they had gotten into some fights and had not been hanging out in
    the two years preceding trial, but he said he was not testifying because he
    was mad at Samaniego.
    Palomino also testified that he considered himself to be an alcoholic
    and a drug addict, and he admitted to four DUIs.
    Maria A.’s Testimony
    Palomino’s mother, Maria A., testified that she was celebrating her
    birthday at a party at her home on the day of the shooting in 2001. Palomino
    appeared at her party later; she did not know where he was picked up from or
    who had given him a ride, but it was not her.
    Maria noticed that Palomino was very nervous. He told her about the
    shooting the next day. He identified Samaniego, or “Pelón” as the shooter.
    11
    She felt fearful about testifying because she was one of Samaniego’s
    neighbors and was afraid something might happen.
    The 2001 Investigation
    San Diego Police Department homicide detective Joseph Cristinziani
    met Aranda the night of the shooting. Aranda was cooperative; police had no
    reason to suspect he was involved in the shooting at the time. Cristinziani
    was satisfied that Aranda was telling him the truth based on information he
    had about the case at the time he interviewed Aranda.
    Cristinziani also met with Edgar in the hospital. Edgar said there
    were two suspects, but he did not identify Aranda as the person who shot
    him. When police showed Edgar a photo line-up, Edgar tentatively identified
    one person as the second person present at the shooting and another person
    as someone he thought could be the shooter, but he could not provide a
    positive identification. Neither Palomino’s nor Samaniego’s photos were
    included in the photo line-up.
    An evidence technician conducted a gunshot residue test. Evidence of
    gunshot residue or an inconclusive result would have meant Aranda’s
    statement was inconsistent with the physical evidence.
    Police shared the composite sketch with the media and offered it on
    Crime Stoppers, and there was a reenactment of the crime on Channel 8, but
    there were no leads or tips from the media coverage. Cristinziani also
    explained that the public in that neighborhood would not be cooperative with
    police because it was a gang neighborhood and the unofficial rule was to not
    talk to the police.
    Manuel Garcia was a gang detective for the San Diego Police
    Department in 2001. In February 2001, he was on the streets looking for
    suspects that matched the descriptions of the shooting suspects. Garcia
    12
    documented contacts on field interview slips. During a field interview, he
    took a photograph of Samaniego because Samaniego was hanging out with a
    group that was possibly tagging in the area. Samaniego did not claim a gang
    membership.
    Linda Tibbetts also worked in the gang unit in 2001. She was
    conducting a field interview of Fabian Martinez when she noted that
    Samaniego fit the description of one of the suspects involved in the shooting.
    She could not remember if she had given a copy of her field interview slip to
    the detectives in the case.
    The 2014-2015 Investigation
    In 2014, a confidential informant came forward with information on the
    2001 shooting, stating that Palomino was present. Another confidential
    informant said Samaniego was involved in the case.
    After receiving the information, San Diego Police Department Detective
    Lori Adams reviewed the case file. She found a polaroid picture of
    Samaniego in the file, which possibly matched the description of the shooter.
    She reached out to the DMV for additional photos of Samaniego. She
    compared the composite photo to the other photographs she had, and she
    noted similarities between a 2011 photo and the composite of the shooter. In
    2011, Samaniego had long, slicked-back hair, and he had similar facial
    features. He also had long, slicked-back, collar-length hair in his 2015 DMV
    photos. But in other DMV photos, Samaniego’s hair was shaved.
    Detective Adams testified that there was no DNA or other physical
    evidence of any potential suspects at the scene of the shooting. Although
    Aranda’s younger brother was initially the focus of their investigation, when
    Edgar did not pick him out of the photo line-up, they moved on.
    13
    Detective Adams also interviewed Edgar. Edgar described the shooter
    as having a tail in his hair, and he said it was not Aranda who had shot him.
    She reviewed the gunshot residue results and noted they showed a lack of
    gunshot residue on the swabs taken from Aranda, indicating there was no
    gun powder residue on Aranda’s hands.
    When Detective Adams interviewed Palomino at his probation officer’s
    office, Palomino said he was not at the shooting and knew nothing about it.
    After being questioned, he removed his GPS monitors and failed to return to
    his sober living program, which led Detective Adams to believe she had hit a
    nerve.
    Palomino was in custody on another case in October 2015 when police
    arrested him in the shooting of Alex and Edgar. Samaniego was arrested the
    same month. Aranda was arrested in November.
    At one point, Aranda and Samaniego were placed in the same holding
    cell, and Samaniego asked Aranda about the charges Aranda was facing.
    Samaniego said he knew police had at least one witness and maybe one or
    two more, and there were possibly others who would come forward, but
    Samaniego would deal with them in his own way. Aranda felt afraid. Later,
    a number of East Side gang members who shared Aranda’s cell asked him a
    lot of questions about the case, which concerned Aranda.
    After Palomino was arrested, law enforcement interviewed his mother.
    When police asked her to name someone involved, she told them, “I only
    heard that they would mention el pelón.” She ultimately named Samaniego
    as the shooter.
    Detective Adams thought Palomino was involved, but because he did
    not match the description of the shooter, she did not think he was the
    shooter. Palomino had darker skin and was older than Edgar said the
    14
    shooter was; the shooter was described as 15 to 16 years old, and Palomino
    was five years older than that. She also considered the information from the
    confidential sources along with the description Edgar provided, the location of
    where Palomino lived, and its proximity to the crime scene.
    Palomino’s attorney offered information in exchange for a deal. During
    his “free talk” with the district attorney’s office, Palomino told them that he
    was present to provide back up for Aranda in case Aranda got jumped, but it
    was clear no one was to get shot or killed, and no guns were involved.
    Palomino named Samaniego as the shooter.
    San Diego District Attorney investigator Sandi Oplinger monitored jail
    calls and visits. She testified that she was concerned for Palomino’s safety
    after listening to a discussion between Samaniego and his ex-girlfriend
    Jessica R., in which Samaniego asked Jessica to find out where Palomino was
    housed.
    In another conversation on a recorded line between Samaniego and
    Jessica while Samaniego was in custody, Jessica told Samaniego that her
    father would pay for his attorney if Samaniego could look at her father and
    tell him with 100 percent certainty that he did not shoot Alex and Edgar. He
    responded that the system was treating him like he was guilty until proven
    innocent. When Jessica was asked if she understood his response to
    insinuate guilt, she replied, “Not at all.”
    The Defense Case
    San Diego Police Officer Roel Tungcab testified that he spoke with a
    witness the night of the shooting who described the person running past him
    as five foot eight to five foot nine, with a military style haircut that was all
    one length.
    15
    Isidro O., who was eight years old in 2001, testified that he heard loud
    noises, and when he looked out the window he saw a man running toward
    60th Street. The man was wearing a striped shirt and had short hair that
    was all one length and was about five foot nine to five foot ten and white.
    Araceli A., Samaniego’s mother, testified that Samaniego had a shaved
    head in 2001, not long, collar-length, slicked-back hair. When he was around
    15 years old, he had some hair on the back of his head, like a little tail, that
    was very thin and grew out of the middle of the back of his head. You could
    see the hair if it was pulled around the side of his head.
    When shown a picture of Samaniego from 2002, Araceli testified that
    the photo resembled him at that time, and she said he had a tail that was not
    visible in the photo. When shown a picture of Samaniego from 2004 in which
    the tail was visible, Araceli testified that his hair was the same there as she
    remembered it being in 2001.
    Araceli also testified that Samaniego and Palomino did not get along.
    Arturo S., Samaniego’s brother, testified that Samaniego was not in a
    gang and did not spend any time in juvenile hall in middle school or high
    school. He described Samaniego in 2001 as bald-headed with a ponytail,
    about five feet or five foot three, and smaller than five foot five. He said
    Samaniego’s tail was long, probably to the middle of his back, and if you
    looked at Samaniego straight on, you could see the tail bouncing around, or if
    it came over his shoulder, it was visible. Otherwise, Samaniego kept his head
    shaved tight with a razor blade.
    The defense also called John Wixted, a psychology professor at UCSD,
    as a memory expert. Wixted testified that eyewitness identification is
    unreliable if the witness is in contaminated conditions. The only
    uncontaminated memory test is the first time a witness’s memory is tested,
    16
    usually with a photo line-up. Witnesses who pick the defendant out of a
    photo line-up with six pictures including the suspect and five others with
    similar physical features and say they are sure are “almost never wrong,” but
    those who make in-court identifications are often wrong.
    Wixted also testified that composite sketches are unreliable because
    they will “look like a normal person” with the features of the suspect, but will
    not resemble the person in memory, and they contaminate the true memory.
    Further, when asked about an identification conducted by a person who had
    seen a photo line-up without the defendant included, helped developed a
    composite sketch of the perpetrator, and only saw the defendant for the first
    time in court, Wixted said the identification would be unreliable because the
    composite sketch would replace the memory of the perpetrator’s identity.
    The Verdict and Sentencing
    The jury convicted Samaniego of murder of Alex with the intentional
    and personal discharge of a firearm in the commission or attempted
    commission of the murder (§§ 187, subd. (a), 12022.53, subd. (d)) and of the
    premeditated attempted murder of Edgar with the intentional and personal
    discharge of a firearm (§§ 187, subd. (a), 189, 664, 12022.53).
    In October 2019, the court sentenced Samaniego to 25 years to life on
    count 1, plus 25 years to life, consecutive, for the personal discharge of the
    firearm, for a maximum of 50 years to life. The court sentenced Samaniego to
    seven years to life for count 2 and added 25 years to life for the discharge of
    the firearm, to run concurrently, for a total sentence of 50 years to life.
    The court imposed a restitution fine pursuant to Penal Code
    section 1202.4, subdivision (b) for $10,000, and the additional restitution fine
    under Penal Code section 1202.45 for $10,000, stayed unless parole or
    supervision is revoked. It also ordered payment of a security fee under Penal
    17
    Code section 1465.8 in the amount of $80, a criminal conviction assessment
    fee pursuant to Government Code section 70373 in the amount of $60, a
    criminal justice administration fee under former Government Code section
    29550.1 in the amount of $154, and a general order of restitution to Edgar
    and to Alex’s family under Penal Code section 1202.4, subdivision (f) to be
    determined later. The restitution pursuant to Penal Code section 1202.4,
    subdivision (f) to the victim compensation program was calculated to be a
    total of $43,625, subject to court modification.
    Samaniego timely appealed.
    DISCUSSION
    I.
    WITNESS IMPEACHMENT
    A. Additional Facts
    Samaniego moved in limine to admit the arrests and convictions of
    Aranda and Palomino. He sought to include evidence of Aranda’s convictions:
    misdemeanor possession of an unlawful knife, misdemeanor driving on a
    suspended license, disturbing the peace, a driving under the influence related
    offense that included an excessive alcohol blood level enhancement, and
    contempt of court. Samaniego also sought the admission of several arrests:
    three arrests for alien smuggling, inflicting corporal injury on a significant
    other, preventing or dissuading a witness from testifying, contempt of court,
    and an out-of-state failure to appear charge.
    At the hearing on the motions, defense counsel described Aranda’s list
    of prior offenses as “pretty extensive,” but when the court commented that a
    lot of them were “just contacts,” defense counsel agreed that a lot were
    “contacts or no files.” Defense counsel explained that many of the files were
    purged based on age. The court said it did not see conduct indicating moral
    18
    turpitude or felony convictions, and defense counsel said there was a
    domestic violence arrest in 2000. But the court said it was only an arrest, not
    a conviction, and so not admissible. If defense counsel provided a prior
    conviction, the court would rule on it, but the court had not seen anything
    that it could grant.
    The defense also sought to introduce numerous arrests and convictions
    for Palomino. It asked to introduce the following convictions: (1) a 1998
    infraction for resisting arrest; (2) a 1998 misdemeanor public nuisance;
    (3) a 1999 felony burglary; (4) a misdemeanor battery and reckless driving;
    (5) a 2007 conviction for driving under the influence and on a suspended
    license; (6) an infraction for public fighting in 2012; and (7) a 2014 felony for
    driving under the influence of alcohol. The defense also wanted to impeach
    Palomino using several arrests for driving on a suspended license, driving
    under the influence of alcohol, possession of narcotics paraphernalia, being
    under the influence of a controlled substance, resisting arrest, and contempt
    of court.
    In discussing Palomino’s prior misconduct, defense counsel explained
    there was a felony DUI and the remaining convictions were misdemeanors.
    The court agreed to permit reference Palomino’s felony DUI, but it explained
    misdemeanor DUI did not constitute moral turpitude.
    At trial, Palomino testified that he considered himself to be an alcoholic
    and he had been convicted four times for driving under the influence.
    B. Legal Principles
    “A prior felony conviction involving moral turpitude is admissible to
    impeach a witness.” (People v. Gutierrez (2018) 
    28 Cal.App.5th 85
    , 88
    (Gutierrez), citing Cal. Const., art. I, § 28, subd. (f)(4), Evid. Code, § 788;
    People v. Anderson (2018) 
    5 Cal.5th 372
    , 407 (Anderson).) Additionally,
    19
    under the “Right to Truth-in-Evidence” provision of the California
    Constitution (Cal. Const., art. I, § 28, subd. (f)(2)), evidence of past
    misconduct is admissible for impeachment as long as the conduct involves
    moral turpitude because it shows a willingness to lie. (People v. Wheeler
    (1992) 
    4 Cal.4th 284
    , 292, 295-296 (Wheeler).) Although the misconduct
    giving rise to a misdemeanor is admissible for impeachment, the conviction
    itself is not admissible. (Id. at pp. 297-300.) “[I]mpeachment evidence other
    than felony convictions entails problems of proof, unfair surprise, and moral
    turpitude evaluation which felony convictions do not present.” (Id. at p. 296.)
    Evidence of prior misconduct or a prior felony conviction for purposes
    for impeachment is subject to court discretion under Evidence Code
    section 352, weighing probative value against prejudicial impact. (Gutierrez,
    supra, 28 Cal.App.5th at p. 89; Anderson, supra, 5 Cal.5th at p. 407 [prior
    felony conviction]; People v. Clark (2011) 
    52 Cal.4th 856
    , 931 (Clark) [other
    prior misconduct].) Thus, the rule now is that “the conduct underlying a
    felony conviction is admissible when it is relevant to impeach a witness,
    unless the trial court finds that it is more prejudicial than probative.”
    (Gutierrez, at p. 89.) Courts consider “the nearness or remoteness in time of a
    prior conviction.” (People v. Mendoza (2000) 
    78 Cal.App.4th 918
    , 925.)
    Additionally, “[a] witness may be impeached with any prior conduct involving
    moral turpitude whether or not it resulted in a felony conviction, subject to
    the trial court’s exercise of discretion under Evidence Code section 352.”
    (Clark, at p. 931.)
    We review the court’s decisions regarding admission of evidence under
    Evidence Code section 352, weighing its probative value against the undue
    consumption of time or the danger of undue prejudice, confusing issues, or
    misleading the jury, for an abuse of discretion. (People v. Williams (2008) 43
    
    20 Cal.4th 584
    , 634-635.) We generally will not disturb the trial court’s exercise
    of its discretion unless it acted arbitrarily, capriciously, or in a patently
    absurd manner. (Ibid.; People v. Homick (2012) 
    55 Cal.4th 816
    , 865.)
    C. Aranda’s Criminal History
    Samaniego contends that Aranda’s arrests for alien smuggling,
    inflicting corporal injury on a significant other, and preventing or dissuading
    a witness from testifying involve moral turpitude, and that his possession of a
    knife should have been deemed a crime of moral turpitude and so should
    have been admitted to impeach his credibility. He further contends that
    Aranda’s other arrests and convictions for driving on a suspended license,
    fighting in public, contempt of court, and driving under the influence with an
    excess blood alcohol level were relevant to rebut Aranda’s claims that he had
    not committed any crimes from 2001 to 2015, although he concedes none of
    this conduct itself involves moral turpitude.
    The evidence Samaniego sought to introduce against Aranda was
    remote in time to Aranda’s testimony, with arrests dating back two decades.
    It also was incomplete, with unknown dispositions and purged files because
    of their age. The defense offered no specific proof regarding the conduct
    underlying arrests, so there were problems of proof that at a minimum would
    have consumed time to address. (Wheeler, 
    supra,
     4 Cal.4th at p. 296; see
    Clark, supra, 52 Cal.4th at p. 932.) Given the uncertainty regarding the
    alleged unlawful conduct, its remoteness in time, and its lack of relevance to
    moral turpitude, we cannot say that the court abused its discretion by
    excluding these details. (Gutierrez, supra, 28 Cal.App.5th at p. 88; see Evid.
    Code, § 352 [appropriate to exclude evidence if its probative value is
    outweighed by its prejudicial impact].)
    21
    D. Palomino’s Criminal History
    Although Palomino’s criminal record is lengthier, Samaniego’s desire to
    use the information suffers from similar problems. Other than the 1999
    felony burglary, none of Palomino’s excluded convictions necessarily involved
    crimes of moral turpitude. (See, e.g., Clark, supra, 52 Cal.4th at p. 932
    [theft-related crimes are probative of credibility]; People v. Chavez (2000) 
    84 Cal.App.4th 25
    , 29-30 [simple battery is not a crime of moral turpitude];
    People v. Castro (1985) 
    38 Cal.3d 301
    , 307, 317 [possession of controlled
    substance not a crime of moral turpitude].) And, as was the case with
    Aranda, introducing Palomino’s arrests would have entailed problems of
    proof; Samaniego did not offer evidence that Palomino committed these
    crimes, merely that Palomino was arrested. (See Wheeler, 
    supra,
     4 Cal.4th at
    p. 296; Clark, at p. 932.)
    E. No Prejudice from Exclusions
    While we conclude that the court did not abuse its discretion by
    excluding the evidence of most of the witnesses’ prior arrests and convictions,
    we also note that there is no reason to believe this decision prejudicially
    harmed Samaniego.
    Although defense counsel did not use evidence of past arrests and
    misdemeanor convictions to impeach the witnesses, defense counsel
    challenged the witnesses’ credibility in other ways. Aranda was questioned
    about participation in gang activity, and defense counsel pointed out various
    lies. Aranda admitted that he had lied to law enforcement, and his charges
    were reduced from first-degree murder to accessory after the fact only after
    he began to cooperate with the district attorney. During closing arguments,
    defense counsel argued that Aranda was not a credible witness, that he had
    colluded with Palomino to lie, and that if he were really afraid of cooperating
    22
    with police, he would not have voluntarily gone to the police station the night
    of the shooting.
    The defense also challenged Palomino’s credibility. Palomino admitted
    to drinking three of four drinks the night of the shooting. He testified that
    when police contacted him, he said he was not there, and he did not tell police
    what happened. He also testified to being an alcoholic, drinking since the age
    of 13 or 14, being convicted of three or four DUIs, and he said he was a drug
    addict. Although he did not go into detail, Palomino mentioned that he was
    at his probation officer’s office when police asked him about the shooting in
    2015, and he cut off his ankle bracelets but was arrested a couple months
    later. During closing arguments, defense counsel described Palomino as “a
    mess” —an alcoholic with a “ton of DUI’s” who was a drug user. He
    commented that Palomino’s body language indicated he did not want to
    testify, and that only the real shooter would have willingly taken credit for
    shooting Aranda—something Palomino had indicated he would do. Defense
    counsel also argued that Palomino’s story was inconsistent with the facts
    because he could not remember anyone walking from Gloria’s door to the car,
    but he did remember the car mysteriously appearing and making a U-turn.
    The jury was instructed with CALCRIM No. 316, which told it to
    consider whether a witness was convicted of a felony, a crime, or other
    misconduct in evaluating credibility. Thus, the jury had reason to question
    the witnesses’ credibility in evaluating the evidence.
    However, the challenges to these witnesses’ credibility could easily be
    overcome by the evidence that pointed to Samaniego as the shooter. Edgar
    identified Samaniego as the shooter. Palomino’s mother told police that
    Palomino told her immediately following the shooting that Samaniego had
    shot someone. Other testimony showed that Aranda was not the shooter.
    23
    For example, Edgar, Gloria, and Aranda all agreed that when Edgar left
    Gloria’s home, there was no conflict between him and Aranda, eliminating
    any motive for Aranda to be involved in the crime. Edgar’s testimony also
    placed Aranda behind the shooter, appearing only after the shooting started
    and disappearing shortly thereafter. Although Edgar offered Aranda’s
    nickname “Kiki” in the minutes immediately following the shooting, once he
    recovered, he did not identify Aranda as the person who shot him.
    Additionally, Samaniego’s defense was primarily a misidentification
    defense, and the two perpetrators had different appearances. Witnesses
    testified that Palomino was darker-skinned and older than the person
    witnesses described as the shooter. Edgar described the shooter as Hispanic
    and the other person as possibly mixed-race, Puerto Rican, or Black. He said
    the shooter was about five feet eight inches tall and wore a sweater with two
    grey stripes across the chest and sleeves. Isidro O.’s description was similar.
    He said the shooter wore a striped shirt and was white, with short hair,
    about five foot nine to five foot ten. In addition to the differences in skin
    tone, the two assailants had different hair styles. The shooter had slicked-
    back, collar-length hair, and the other person had short hair, all one length.
    Samaniego’s attorney argued that Samaniego did not fit the description
    of the shooter because he did not have slicked-back, collar-length hair. But
    there was testimony that starting around the time of the shooting, when
    Samaniego was 15 years old, he was bald except for a tail on the back of his
    head, visible only if the hair were pulled around the sides. Aside from the
    tail, which was long, Samaniego kept his head shaved tight. DMV photos of
    Samaniego in 2011 matched the description of the shooter that Edgar had
    provided. And police reviewing a photograph of Samaniego taken near the
    time of the shooting and included with a field interview noted similarities
    24
    between the description of the shooter and Samaniego and believed a 2011
    photograph of Samaniego showed facial similarities to the composite of the
    shooter. Thus, witness descriptions of the shooter matched Samaniego’s
    appearance at the time, and the description of a tail Samaniego wore
    explained the potential differences in the description of the hairstyle.
    Further, Samaniego’s post-arrest behavior pointed to him as the
    shooter. He made threats to Aranda when they were placed in the same
    holding cell, saying he would deal with witnesses his own way and that he
    could get at anybody he wanted. Police were also concerned by information
    that Samaniego was looking for the location of cooperating witnesses while he
    was in custody.
    Given this evidence against Samaniego, it is not reasonably probable a
    different outcome would have been achieved even had additional, potentially
    non-verifiable challenges to the credibility of Aranda and Palomino been
    offered at trial. (See People v. Watson (1956) 
    46 Cal.2d 818
    , 836-837
    (Watson); People v. Ghebretensae (2013) 
    222 Cal.App.4th 741
    , 751-752
    [Watson standard applies to evaluate exclusion of impeachment evidence].)
    II.
    USE OF JURY INSTRUCTION CALCRIM NOS. 3471 and 3472
    Samaniego next argues the court erred by providing CALCRIM
    Nos. 3471 and 3472, contending the instructions were inapplicable and
    confusing. The People maintain that because defense counsel did not object
    to these instructions at the time of trial, the challenge is forfeited, and
    Samaniego was not prejudiced from their inclusion.
    A. Legal Principles
    We review assertions of instructional error de novo. (People v. Waidla
    (2000) 
    22 Cal.4th 690
    , 733 (Waidla); People v. Fiore (2014) 
    227 Cal.App.4th 25
    1362, 1378.) We evaluate the correctness of jury instructions from the entire
    charge of the trial court and not from parts of an instruction or a single
    instruction. (People v. Musselwhite (1998) 
    17 Cal.4th 1216
    , 1248.) We also
    presume jurors understand and follow the court’s instructions. (People v.
    Sanchez (2001) 
    26 Cal.4th 834
    , 852.)
    Even if an instruction correctly states a principle of law, if it has no
    application to the facts of the case, it is an error to offer it. (People v. Guiton
    (1993) 
    4 Cal.4th 1116
    , 1129 (Guiton).) Thus, “instructions not supported by
    substantial evidence should not be given.” (People v. Ross (2007) 
    155 Cal.App.4th 1033
    , 1050 (Ross).) However, “giving an irrelevant or
    inapplicable instruction is generally ‘ “only a technical error which does not
    constitute ground for reversal.” ’ [Citation.]” (People v. Cross (2008) 
    45 Cal.4th 58
    , 67.) “[I]nstruction on an unsupported theory is prejudicial only if
    that theory became the sole basis of the verdict of guilt.” (Guiton, at p. 1130.)
    Prejudice resulting from this type of error is measured by the Watson test.
    (Id. at p. 1130; Ross, at pp. 1054-1055.)
    B. Including CALCRIM No. 3471 was Harmless Error
    The court instructed the jury with CALCRIM No. 3471, a self-defense
    mutual combat instruction that explains that a person who engages in
    mutual combat or starts a fight only has a claim to self-defense if he actually
    and in good faith tried to stop fighting, indicated that he wanted to stop
    fighting and that he had stopped fighting, and gave the opponent a chance to
    stop fighting.
    Samaniego argues that this instruction was irrelevant because mutual
    combat only applies in situations in which the defendant engages in physical
    combat. (See, e.g., Ross, supra, 155 Cal.App.4th at pp. 1043-1044, 1051-1052
    [describing combat as fighting by swords, via fisticuffs, using switchblades, or
    26
    facing off with guns].) Samaniego maintains that at most he verbally
    confronted Edgar, and there was no evidence of any physical altercation
    before the gunshots were fired.
    The People concede that this instruction was inapplicable because
    words alone do not constitute “start[ing] a fight,” as that phrase is used in
    CALCRIM No. 3471. Accordingly, this instruction should not have been
    given.
    However, Samaniego did not suffer prejudice as a result. There is no
    indication the jury applied this instruction to the facts before it. The
    prosecution did not argue mutual combat prevented Samaniego from
    claiming self-defense, and there was no evidence of a physical altercation, so
    there is no reason that the omission of this instruction would have changed
    the outcome of the case.
    Further, Samaniego does not claim there were problems with the self-
    defense instruction, and nothing indicates the jury rejected the self-defense
    theory solely because it believed Samaniego had started a physical
    altercation with Edgar before shooting Edgar. (See Guiton, 
    supra,
     4 Cal.4th
    at p. 1129.) Indeed, here the jury rejected any claim of self-defense by
    concluding that Samaniego had attempted to murder Edgar with
    premeditation.
    C. Instructing with CALCRIM No. 3472 was Not Erroneous
    Samaniego next claims that the jury was improperly instructed with
    CALCRIM No. 3472 because it was both legally incorrect and inapplicable.
    He argues CALCRIM No. 3472 should have been modified because there was
    evidence that Samaniego intended to provoke only a non-deadly confrontation
    to which Edgar responded aggressively in a manner that Samaniego
    interpreted to be deadly force, justifying his response with deadly force.
    27
    Samaniego also contends that if he instigated any confrontation, it was
    merely verbal, making the instruction inapplicable.
    Samaniego’s claim that CALCRIM No. 3472 is legally incorrect is
    without merit. CALCRIM No. 3472 explains that a defendant cannot claim
    self-defense if his wrongful conduct creates circumstances that justify the
    adversary’s attack. (People v. Enraca (2012) 
    53 Cal.4th 735
    , 761 (Enraca);
    CALCRIM No. 3472.) In Enraca, our Supreme Court held that the
    predecessor instruction, CALJIC No. 5.55, which was materially the same as
    CALCRIM No. 3472, was a correct statement of law.4 (Enraca, at p. 761.)
    Although the court used the language of “physical attack” as an
    example of a defendant’s wrongful conduct in Enraca, at least one appellate
    court has concluded CALCRIM No. 3472 is appropriate when a preliminarily
    verbal confrontation escalates into a physical one. In Eulian, supra, 247
    Cal.App.4th at pages 1327-1328, the victim began shouting as she stepped
    out of her vehicle. The defendant approached her quickly, pointing and
    yelling at her, poking his finger close to her face. The victim threw cat kibble
    toward the defendant, and she raised her leg in a manner that looked like she
    may have kicked or pushed the defendant with her leg. The defendant’s
    mother pulled him away by his arm; when he moved back toward the victim,
    the victim slapped him. The defendant punched the victim twice, then pulled
    her from her car and hit her two more times, after which she fell unconscious
    for a couple minutes. When she awoke, the defendant helped her to her feet
    and assisted her into her vehicle.
    4     We recognize that CALCRIM No. 3472 “might require modification in
    the rare case in which a defendant intended to provoke only a nondeadly
    confrontation and the victim responds with deadly force.” (People v. Eulian
    (2016) 
    247 Cal.App.4th 1324
    , 1334.) As we explain, the facts here do not
    create such a situation because of contradictory testimony.
    28
    The appellate court concluded there was a factual predicate for the use
    of CALCRIM No. 3472 because the jury could have concluded that the
    defendant provoked the conflict and continued to be the aggressor until the
    victim responded, at which point the defendant punched her and knocked her
    out. (Eulian, supra, 247 Cal.App.4th at p. 1334.) Under this interpretation,
    the defendant was the aggressor by screaming and jabbing his finger toward
    the victim’s face, continuing to argue with her until his mother pulled him
    away. The court explained that if the victim kicked the defendant before he
    punched her, the jury could have concluded that the victim did so in response
    to aggressive conduct. Thus, the defendant did not have the right to use force
    to settle a physical confrontation that he created. (Ibid.)
    The defendant in Eulian was charged with assault, not attempted
    murder or murder, but the facts share some similarities. Edgar testified that
    one of the people who confronted him spoke first, saying, “East Side Rascals,”
    which he understood to be a verbal threat or a gang challenge. Then, when
    Edgar turned back to them after passing by, he heard the shooter say, “This
    is what’s up,” and the gun was already pulled out. If the jury believed
    Edgar’s testimony, it was Samaniego who instigated the confrontation.
    Under this view of the events, Samaniego’s initial interaction was aggressive
    in its use of reference to gang membership and its implied threat. As the
    first to threaten, he was the first aggressor. And his use of the weapon
    almost immediately after confronting Edgar suggests he was prepared to use
    the weapon to engage in deadly force from the outset. Under this version of
    events, Samaniego’s conduct disqualified him from claiming self-defense.
    Palomino testified that Edgar, a big guy wearing a big jacket, exited
    the vehicle and “started saying stuff,” asking where Palomino and Samaniego
    were from. Palomino thought this meant Edgar was in a gang. Then Edgar
    29
    began arguing with Samaniego, and Samaniego began shooting. Palomino
    thought Edgar was acting like he had or may have been reaching for a gun.
    Under this recitation of the events, the initial aggressor was Edgar, because
    he got out of the vehicle and confronted Samaniego and Palomino. If the jury
    believed this version of the events, CALCRIM No. 3472 was irrelevant
    because Samaniego did not instigate a fight. But because there was a conflict
    in the facts, it was for the jury to determine whether Samaniego could
    properly claim self-defense in this case, and we cannot conclude the use of
    CALCRIM No. 3472 required any modification.
    Samaniego separately argues the instruction was incorrect, relying on
    People v. Ramirez (2015) 
    233 Cal.App.4th 940
    , which rejected the use of
    CALCRIM No. 3472 under the circumstances of that case. There, the
    instruction was inappropriate because it did not allow for the intent to use
    nondeadly force before the adversary’s sudden escalation to deadly force
    required a deadly response. (Ramirez, at pp. 946-947.) In such a
    circumstance, the defendant’s wrongful conduct does not preclude a self-
    defense claim because the defendant’s actions are not intended to create an
    excuse for deadly force; the deadly force comes in response to the victim’s
    sudden escalation.
    But Samaniego’s situation is not like Ramirez’s because there was
    evidence before the jury that Samaniego instigated the confrontation,
    brought a weapon, and almost immediately wielded the firearm and began
    shooting.
    Finally, even if the instruction should not have been given because it
    was irrelevant, Samaniego did not suffer prejudice as a result. As we
    explained ante, we presume the jury followed the instructions, and if there
    were no instigation of a fight—contrived or otherwise—to justify offering
    30
    CALCRIM No. 3472, the jury would have disregarded it as inapplicable
    under these facts.
    III.
    PRIOR THREATENING CONDUCT
    Samaniego contends the court erred by failing to instruct the jury to
    consider whether Edgar’s prior threats were justification for a quicker and
    harsher reaction than might otherwise be acceptable.
    Evidence the victim threatened the defendant is admissible to support
    a claim of self-defense because that information could impact the defendant’s
    state of mind at the time of the event. (People v. Minifie (1996) 
    13 Cal.4th 1055
    , 1065; People v. Humphrey (1996) 
    13 Cal.4th 1073
    , 1085, 1087 [battered
    women syndrome evidence relevant to reasonableness of defendant’s belief].)
    Although Samaniego is correct that evidence of a threat by the victim
    against the defendant is admissible, there was no such evidence in this case.
    First, it is not clear that the incident Samaniego references on appeal can
    even be characterized as a threat. In the days before the shooting, Edgar and
    Aranda ran into each other in front of Aranda’s grandmother’s house when
    Edgar stepped out of his vehicle and Gloria pulled him back inside. Aranda
    testified that Edgar said, “What’s going on?” It is not clear why this
    interaction constituted a threat at all. Further, although Aranda testified
    that he did not want to get jumped by Edgar and anyone else with him the
    night of the shooting, he did not testify that his fear was the result of any
    prior threat Edgar made. In fact, when asked if he had a reason to believe
    that Edgar might jump him, he said “[t]here was a possibility. I didn’t know
    the situation.” But he did not reference any prior interaction to justify this
    concern.
    31
    Second, there is no evidence that Samaniego was even aware of this
    prior interaction between Edgar and Aranda. Samaniego did not testify, and
    Palomino only testified that Aranda had told him that he was concerned
    about getting jumped by “some guys” and that he was going to argue with his
    ex-girlfriend’s boyfriend. But there was no testimony that Edgar had
    conveyed any specific threat to Palomino or Samaniego.
    Finally, even had Aranda perceived the earlier interaction as a threat,
    there is no evidence there was a threat to Samaniego. And Samaniego does
    not explain why a threat to a third party means he is entitled to the
    instruction. Thus, the failure to provide instruction that a prior threat by
    Edgar against Aranda may have justified a quicker or more harsh response
    by Samaniego was not error.
    IV.
    TRANSFERRED INTENT FOR SELF-DEFENSE
    A court has a sua sponte duty to instruct on all theories of a defense
    when there is substantial support in the evidence for it. (People v. Breverman
    (1998) 
    19 Cal.4th 142
    , 162 (Breverman). This duty arises when it appears a
    defendant is relying on the defense or when there is substantial evidence to
    support the defense and the defense is not inconsistent with the defendant’s
    theory of the case. (Id. at p. 157.) However, “[a] trial court has no sua sponte
    duty to revise or improve upon an accurate statement of law without a
    request from counsel.” (People v. Lee (2011) 
    51 Cal.4th 620
    , 638 (Lee).) The
    issue here is whether transferred intent constitutes a defense to which this
    rule applies and if so whether the lack of such an instruction prejudiced
    Samaniego.
    “Traditional self-defense applies where the defendant believes he or she
    is facing an imminent and unlawful threat of death or great bodily injury,
    32
    and believes the acts which cause the victim’s death are necessary to avert
    the threat, and these beliefs are objectively reasonable.” (People v. Curtis
    (1994) 
    30 Cal.App.4th 1337
    , 1357 (Curtis).) This defense is available to a
    defendant who intends to kill or injure a person posing a threat but instead
    injures or kills a third party under the doctrine of transferred intent. (Ibid;
    People v. Mathews (1979) 
    91 Cal.App.3d 1018
    , 1024.) Transferred intent can
    be used by a defendant because the lack of criminal intent follows the act to
    its consequences. (People v. Levitt (1984) 
    156 Cal.App.3d 500
    , 507-508
    (Levitt).)
    Although self-defense negates the malice aforethought requirement for
    murder, transferred intent is not a separate defense with a separate
    instruction. It is an extension of self-defense. The court had no sua sponte
    duty to provide a pinpoint instruction, and Samaniego did not request an
    instruction for transferred intent. (See Lee, 
    supra,
     51 Cal.4th at p. 638; see
    also Levitt, supra, 156 Cal.App.3d at pp. 507-508 [transferred intent
    instructions must be given upon request].)
    Even had the court erred in failing to provide an instruction for
    transferred intent, the failure to do so would be “an error of California law
    alone” at most, “subject . . . , to the Watson standard of reversal.”
    (Breverman, supra, 19 Cal.4th at pp. 165, 169, 171, 174.)
    It is not probable here that an error would have altered the outcome.
    The court instructed the jury with CALCRIM No. 505, which states that a
    “defendant is not guilty of murder or attempted murder if he was justified in
    killing or attempting to kill someone in self-defense or defense of another” as
    long as “[he] reasonably believed that he or someone else was in imminent
    danger of being killed or suffering great bodily injury,” reasonably believed
    33
    that the immediate use of deadly force was necessary, and only used the
    amount of force reasonably necessary to defend against the imminent danger.
    This was an appropriate instruction because the applicability of self-
    defense was a question of fact. If the jury believed Palomino’s testimony that
    Edgar engaged him first and was reaching for a weapon when Samaniego
    fired the gun, Samaniego may have had a valid claim of self-defense. If he
    properly claimed self-defense as to Edgar, that defense would extend to the
    bullets that unintentionally hit Alex.
    However, if the jury believed Edgar’s testimony that Samaniego
    confronted him and began firing almost immediately, or Aranda’s testimony
    that Palomino initially claimed that Samaniego accidentally fired the gun
    because “that fool tripped,” Samaniego would have no self-defense claim to
    justify shooting Edgar, and the doctrine of transferred intent would be
    inapplicable. The jury convicted Samaniego of the premeditated attempted
    murder of Edgar, so it did not find that Samaniego acted in self-defense.
    Accordingly, it is not probable that the jury would have concluded a claim of
    34
    self-defense justified Alex’s death because there was no conclusion that
    Samaniego acted in self-defense at all. (Watson, supra, 46 Cal.2d at pp. 836-
    837.)
    V.
    MANSLAUGHTER INSTRUCTIONS
    Samaniego asked for a voluntary manslaughter instruction under a
    theory of imperfect self-defense. The court denied his request, explaining
    that the theory lacked the support of substantial evidence because there was
    no testimony regarding Samaniego’s actual belief. Samaniego did not request
    a voluntary manslaughter instruction based on heat of passion.
    He now contends the court erred by failing to offer the jury instructions
    for manslaughter, claiming there was substantial evidence to support an
    imperfect self-defense theory as well as to conclude Samaniego acted in the
    heat of passion.
    A. Legal Principles
    A court is obligated to instruct a jury on all theories of a defense
    supported by substantial evidence, including lesser-included offenses.
    (Breverman, 
    supra,
     19 Cal.4th at pp. 155, 162.) Substantial evidence in this
    context means evidence that a reasonable jury could find persuasive and from
    which it could reasonably conclude the defendant was not guilty of the
    charged offense because he was instead only guilty of the lesser included
    offense. (People v. Mendoza (2000) 
    24 Cal.4th 130
    , 174 (Mendoza).) In
    making this determination, we construe the evidence in a light most
    favorable to the defendant (People v. Turk (2008) 
    164 Cal.App.4th 1361
    , 1368,
    fn. 5), but speculation is insufficient to meet this requirement (Mendoza, at
    35
    p. 174). We conduct this review de novo. (Waidla, 
    supra,
     22 Cal.4th at
    p. 733.)
    B. Imperfect Self-Defense
    Imperfect self-defense and heat of passion reduce an intentional,
    unlawful killing from murder to voluntary manslaughter. (Breverman,
    
    supra,
     19 Cal.4th at p. 154.) The defense “applies where the defendant
    believes he or she is facing an imminent and unlawful threat of death or
    great bodily injury, and believes the acts which cause the victim’s death are
    necessary to avert the threat, but these beliefs are objectively unreasonable.”
    (Curtis, supra, 30 Cal.App.4th at p. 1354.) However, imperfect self-defense
    cannot be used by a defendant whose wrongful conduct creates circumstances
    under which the victim’s actions are legally justified. (In re Christian S.
    (1994) 
    7 Cal.4th 768
    , 773, fn. 1.)
    As we previously explained, there is contradictory testimony about
    what occurred before the shooting began. Palomino testified that Edgar was
    in the vehicle and exited it to confront him and Samaniego, asking Palomino
    and Samaniego where they were from. He told the jury Edgar was wearing a
    big jacket. And he said that Edgar looked like he was reaching into a pocket,
    where he might have had a gun. But Palomino did not testify about any
    conversations he had with Samaniego in which they discussed the shooting.
    He did not provide any information about what Samaniego was actually
    thinking or whether Samaniego believed Edgar had or was reaching for a
    gun, or even whether Samaniego felt like his life was in danger. And
    although Palomino testified that he backed away from Edgar, that does not
    tell the jury what Samaniego, who had a gun and may have felt differently,
    thought or believed.
    36
    Other testimony likewise does not shed light on whether Samaniego’s
    actions were based on actual fear or the perceived need to act with deadly
    force. Aranda testified that immediately following the shooting, Palomino
    told him that “that fool tripped.” And Edgar testified that Samaniego spoke
    to him first, saying “East side,” which Edgar understood was a gang
    challenge or threat. When Edgar laughed and turned to Samaniego,
    Samaniego, who was five or six feet away, responded, “This is what’s up,” and
    already had a gun pointed at Edgar. Samaniego began firing shots at Edgar
    immediately, hitting Edgar in the chest before Edgar could get to the vehicle
    Alex was driving to dive through the window and escape. With no
    information about whether Samaniego actually believed he was facing an
    imminent and unlawful threat and whether he actually believed deadly force
    was necessary to protect himself, there was not substantial evidence to
    support the theory. (Curtis, supra, 30 Cal.App.4th at p. 1354.) Accordingly,
    the court properly declined to provide this instruction to the jury.
    C. Heat of Passion
    Murder can be reduced to voluntary manslaughter if the defendant
    acted in a heat of passion. This requires the victim’s conduct to be
    “sufficiently provocative to cause an ordinary person of average disposition to
    act rashly or without due deliberation and reflection”; as well as the
    defendant to kill while actually influenced by strong passion induced by the
    provocation. (Enraca, 
    supra,
     53 Cal.4th at p. 759.) The provocation can be
    verbal, so long as it is “ ‘such that an average, sober person would be so
    inflamed that he or she would lose reason and judgment.’ ” (People v.
    Manriquez (2005) 
    37 Cal.4th 547
    , 585-586 (Manriquez).) In addition to this
    objective component, the defendant must also actually and subjectively kill
    under a heat of passion. (People v. Steele (2002) 
    27 Cal.4th 1230
    , 1252.)
    37
    Samaniego argues that the same evidence supporting his claim for
    imperfect self-defense supports a heat of passion instruction, that a
    reasonable juror could have believed Edgar taunted Samaniego and acted
    aggressively, that Edgar’s conduct actually angered Samaniego, that an
    ordinary person would have reacted with passion, and that Samaniego
    reacted from passion.
    He takes the position that he merely needs to show that he felt any
    “ ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion.’ ” ’ ”
    (Breverman, 
    supra,
     19 Cal.4th at p. 163.) And he cites to People v. McCowan
    (1986) 
    182 Cal.App.3d 1
    , 15, a case in which the defendant “became enraged”
    when his ex-wife made an obscene gesture as he drove by, and that prompted
    him to shoot her. But McCowan is not helpful to Samaniego because there is
    not substantial evidence that either an ordinary, reasonable person would
    have become impassioned in this situation or that Samaniego actually was.
    Assuming the events occurred as Palomino described in his testimony,
    that the vehicle U-turned in the street in front of him and Samaniego and
    Edgar stepped out of the vehicle “saying stuff,” that does not explain why
    that would create a violent or intense response from the ordinary, reasonable
    person. (See Manriquez, 
    supra,
     37 Cal.4th at pp. 585-586 [reasonable people
    do not become homicidally enraged by verbal taunts, profanities, and
    challenges]; People v. Avila (2009) 
    46 Cal.4th 680
    , 706-707 (Avila); Enraca,
    
    supra,
     53 Cal.4th at p. 759 [insults and gang-related challenges induce
    insufficient provocation to require heat of passion instruction].) There is no
    evidence that Palomino himself felt such intense emotions, or that he lost all
    reason and judgment; in fact, he testified he backed away.
    38
    There is also no testimony that shows Samaniego felt any intense
    emotion inducing him to react in a violent or passionate manner. (Mendoza,
    supra, 24 Cal.4th at p. 174 [speculation does not warrant instruction].) Even
    39
    taking into consideration that an obscene gesture or taunting words could
    induce such rage to warrant this instruction, there is scant evidence that
    Edgar did either of these things.
    D. Harmless Error
    Finally, even were the omission of these instructions erroneous, any
    error would be harmless. Given the evidence before the jury, there is no
    reasonable probability Samaniego would have received a more favorable
    verdict had the court instructed the jury on voluntary manslaughter.
    (Watson, supra, 46 Cal.2d at pp. 836-837.) The jury convicted Samaniego of
    premeditated and deliberate attempted murder and murder, thereby
    implicitly rejecting any version of events that indicated heat of passion or any
    sudden response to the situation. (People v. Wharton (1991) 
    53 Cal.3d 522
    ,
    572 (Wharton) [premeditation and deliberation finding “manifestly
    inconsistent with having acted under heat of passion”].)
    VI.
    ADOPTIVE ADMISSIONS
    A. Additional Facts
    The People moved in limine to offer statements Samaniego made to
    Jessica during a telephone call from jail. Jessica told Samaniego that her dad
    said if Samaniego could look at him and tell him 100 percent that Samaniego
    did not do it, her dad would pay for the lawyer. Samaniego replied, “Yeah,
    you know, but . . . even it’s a yes or no, it’s a lot of money. It’s a lot of money,
    you know. I’m in here, you’re . . . you know, you’re guilty till proven innocent
    here. That’s all it is. And, and it’s not the first time I’ll get through. It’s the
    third time.” When Jessica was asked if she understood his response to
    insinuate guilt, she replied, “Not at all.”
    40
    Before closing arguments but after the court had already instructed the
    jury, the People asked for adoptive admissions instruction, and the court said
    it did not disagree that it probably was arguably an adoptive admission, but
    they should have dealt with it the previous day. It was not going to re-read
    the instructions, but it would not prevent the prosecutor from arguing the
    statements were adoptive admissions.
    The People played a portion of the conversation between Samaniego
    and Jessica and argued the conversation showed consciousness of guilt
    because Samaniego did not say he was not the shooter. The defense told the
    jury that the conversation between Jessica and Samaniego was not an
    adoptive admission; she did not understand his comment to be an admission,
    and the jury should not either.
    The jury requested transcripts from these conversations with Jessica.
    B. Legal Principles
    Under Evidence Code section 1221, a statement offered against a party
    is not inadmissible hearsay if the party manifests his or her adoption of the
    statement, with knowledge of the content of the statement. (People v. Carter
    (2003) 
    30 Cal.4th 1166
    , 1196 (Carter).) An adoptive admission occurs when
    the defendant participates in a private conversation in which the crime is
    discussed, and the defendant has an opportunity to deny responsibility but
    fails to do so. (People v. Davis (2005) 
    36 Cal.4th 510
    , 535.) An evasion or
    silence is a typical reply for such an admission. (People v. Charles (2015) 
    61 Cal.4th 308
    , 322 (Charles).) A defendant may not want the instruction
    because giving it “might cause the jury to place undue significance on bits of
    testimony that the defendant would prefer it not to examine so closely.”
    (Carter, at p. 1198.) “[A]s the Evidence Code makes clear, courts are required
    to so instruct only at a defendant’s request” when there is substantial
    41
    evidence to support it. (Ibid.) Additionally, a trial court may give the
    adoptive admissions instruction, whether or not requested, if it believes the
    instruction will be helpful to the jury, and it may do so over the defendant’s
    objections. (Charles, at p. 331.)
    We review instructional errors de novo. (Waidla, supra, 22 Cal.4th at
    p. 733.)
    C. Analysis
    Although a court is required to give the adoptive admission instruction
    at a defendant’s request, the law does not require it to do so upon request by
    the People. In those circumstances, the court may give the instruction if it
    believes doing so will help the jury. (Charles, supra, 61 Cal.4th at p. 331; see
    Evid. Code, § 1221.) Here, the instruction was not requested by Samaniego,
    so the court was not required to provide it.
    Samaniego argues this decision was erroneous because the prosecution
    argued the exchange was an adoptive admission, and the jury was unaware
    of the requirements for an adoptive admission. But Samaniego does not
    explain why the label of adoptive admission in the instant case affected the
    result. “The instruction is largely a matter of common sense--silence in the
    face of an accusation is meaningful, and hence may be considered, only when
    the defendant has heard and understood the accusation and had an
    opportunity to reply.” (Carter, supra, 30 Cal.4th at p. 1198.)
    Here, with or without the instruction, the circumstances call into doubt
    the weight or significance of Samaniego’s response to Jessica as an adoptive
    admission. The call took place while Samaniego was on a recorded jailhouse
    phone line, which Samaniego knew was being recorded. So, he may not have
    felt like he could speak freely. And his admission was neither a direct
    admission nor silence. He told Jessica that paying for an attorney was
    42
    expensive. He believed the system already viewed him as guilty, so he was
    not sure the money would matter. Defense counsel argued the context of the
    exchange showed it did not indicate any consciousness of guilt -- and the
    person making the statement did not view Samaniego’s response as
    demonstrating guilt. The jury had before it the information it needed to
    assess whether the exchange was evidence of guilt, so it is not evident that
    the instruction would have aided the jury in a meaningful way.
    VII.
    WEIGHT OF EYEWITNESS TESTIMONY
    A. Additional Facts
    At trial, Edgar testified that he was positive Aranda did not shoot him,
    and he identified Samaniego as the shooter. The prosecutor asked Edgar
    what made him believe Samaniego was the shooter, and Edgar responded,
    “He aged a little bit, but he’s the same guy. That’s him. I remember him.”
    The defense challenged Edgar’s memory: “As you sit here today, I
    mean, it’s been 18 years, right?” And Edgar replied, “I remember that face.
    When somebody has a gun in your face, yeah. Somebody is trying to kill you,
    yeah, I remember that face.” Then defense counsel challenged Edgar’s focus
    at the time of the shooting: “And the gun was in your face. Is it fair to say
    that your attention was drawn to the gun?” Edgar responded, “It was drawn
    to the shooter and the gun.” Edgar testified on cross by defense counsel, “I
    remember who shot me, and he’s sitting here.”
    On redirect, the prosecutor asked: “You said that you definitely saw
    the defendant here, Mr. Samaniego, with a gun in his hand shooting you,
    correct?” Edgar replied, “Yes.” The prosecutor queried, “And as you sit here
    43
    today, there’s no doubt in your mind that this defendant is the person that
    shot you and shot your friend in the car, Alex [ ]?” And Edgar answered,
    “Yes.”
    The court instructed the jury with CALCRIM No. 315, which provides a
    list of factors to consider in determining whether an eyewitness’s
    identification is accurate.5 It also instructed the jury with CALCRIM No.
    332, directing the jury to consider the opinions of the expert who testified
    about memory and the accuracy of identification.
    5     CALCRIM No. 315 was modified to exclude some factors. The jurors
    were instructed to consider the following factors in evaluating the
    identification testimony:
    • “Did the witness know or have contact with the defendant before the
    event?
    • How well could the witness see the perpetrator?
    • What were the circumstances affecting the witness’s ability to observe,
    such as lighting, weather conditions, obstructions, distance, [and]
    duration of observation?
    • How closely was the witness paying attention?
    • Was the witness under stress when he or she made the observation?
    • Did the witness give a description and how does that description
    compare to the defendant?
    • How much time passed between the event and the time when the
    witness identified the defendant?
    • Was the witness asked to pick the perpetrator out of a group?
    • Did the witness ever fail to identify the defendant?
    • Did the witness ever change his or her mind about the identification?
    • How certain was the witness when he or she made an identification?
    • Are the witness and the defendant of different races?
    • [Was the witness able to identify other participants in the crime?]
    • [Was the witness able to identify the defendant in a photographic or
    physical lineup?]
    • Were there any other circumstances affecting the witness’s ability to
    make an accurate identification?”
    44
    Samaniego challenges the trial court’s use of CALCRIM No. 315,
    arguing his convictions should be reversed because Edgar’s certainty during
    his in-court identification was crucial to a guilty verdict and was an improper
    factor for the jury to consider. We review challenges to jury instructions de
    novo. (People v. Posey (2004) 
    32 Cal.4th 193
    , 218.)
    Our Supreme Court recently addressed this issue in People v. Lemcke
    (2021) 
    11 Cal.5th 644
     (Lemcke). Lemcke held that listing the witness’s level
    of certainty among the factors a jury considers under CALCRIM No. 315 to
    evaluate eyewitness identifications does not render a trial fundamentally
    unfair or otherwise amount to a due process violation. (Lemcke, at pp. 647,
    660-661.) Nothing in the instruction operates “to ‘lower the prosecution’s
    burden of proof’ ” because “the instruction does not direct the jury that
    ‘certainty equals accuracy.’ [Citation.]” (Id. at pp. 647, 657, 658.)
    The defendant in Lemcke presented a rigorous identification defense,
    his counsel cross-examined investigating officers to explore problematic
    aspects of identification procedures, and he called an eyewitness expert who
    “testified at length about the weak correlation between certainty and
    accuracy, particularly with respect to in-court identifications.” (Lemcke,
    supra, 11 Cal.5th at p. 660.) In the end, although the court acknowledged
    that “an enhanced or modified version of the certainty instruction might well
    be advisable,” it explained that the inclusion of witness certainty as a factor
    for jurors to consider nonetheless did not establish a due process violation.
    (Id. at p. 661.)
    The case before us is comparable. Like the defendant in Lemcke,
    Samaniego presented a rigorous defense challenging his identification as the
    shooter, challenging the credibility of witnesses, and noting the lack of
    physical evidence connecting him to the scene. Samaniego offered expert
    45
    testimony to challenge the accuracy of an in-court identification, the type he
    now contends was problematic. And his attorney questioned the credibility of
    various witnesses. Further, the jury was instructed that the People bore the
    burden of proving beyond reasonable doubt that it was the defendant who
    committed the crime (CALCRIM No. 315) and that it was required to
    consider the expert’s testimony (CALCRIM No. 332). And the prosecutor
    reiterated the People’s burden of proof in closing arguments. These actions
    helped ensure fairness.
    We recognize that the Supreme Court has directed trial courts to omit
    the certainty factor from CALCRIM No. 315 going forward, until the Judicial
    Council can consider how the language might be better worded to minimize
    any possible juror confusion on that point. (Lemcke, supra, 11 Cal.5th at
    pp. 668-669.) However, “nothing in CALCRIM No. 315’s instruction on
    witness certainty operates to ‘lower the prosecution’s burden of proof.’ ” (Id.
    at p. 657.) It leaves it to the jury to decide the credibility of a witness’s level
    of certainty and what weight to assign the certainty. (Ibid.) Additionally,
    nothing in CALCRIM No. 315 suggests to a jury that it should ignore expert
    testimony regarding witness certainty. (Id. at p. 658.)
    Here, like in Lemcke, other instructions undercut the claim that the
    certainty language lowers the burden of proof. (Lemcke, supra, 11 Cal.5th at
    p. 658.) The court instructed the jury that Samaniego was presumed
    innocent and that the prosecution bore the burden of proving the crimes
    beyond a reasonable doubt, and CALCRIM No. 315 states that the People
    bear the burden of proving beyond a reasonable doubt that it was the
    defendant who committed the crime. Under these facts, the reference to
    witness certainty was not error.
    46
    VIII.
    CLOSING ARGUMENTS
    Samaniego contends the prosecutor’s closing arguments improperly
    sought an outcome based on juror passion and sympathy for the victims. He
    also contends that it was improper for the prosecutor to ask the jurors to find
    justice for the victims by holding Samaniego accountable for his actions with
    a guilty verdict.
    A. Forfeiture
    As a preliminary matter, we agree with the People that the defendant
    forfeited his claim of prosecutorial misconduct because he failed to “ ‘make a
    timely and specific objection and ask the trial court to admonish the jury to
    disregard the impropriety. [Citations.]’ ” (Clark, supra, 52 Cal.4th at p. 960,
    quoting People v. Cole (2004) 
    33 Cal.4th 1158
    , 1201 (Cole); see also People v.
    Dennis (1998) 
    17 Cal.4th 468
    , 521 (Dennis).)
    B. Specific Instances of Prosecutorial Misconduct
    Even if we were to determine the claims were properly before us, we
    would conclude they fail on the merits.
    “A prosecutor’s misconduct violates the Fourteenth Amendment to the
    United States Constitution when it ‘infects the trial with such unfairness as
    to make the conviction a denial of due process.’ [Citations.] In other words,
    the misconduct must be ‘of sufficient significance to result in the denial of the
    defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that
    does not render a trial fundamentally unfair nevertheless violates California
    law if it involves ‘the use of deceptive or reprehensible methods to attempt to
    persuade either the court or the jury.’ [Citations.]” (Cole, supra, 33 Cal.4th
    at p. 1202.)
    47
    Still, prosecutors have wide latitude during closing argument to argue
    vigorously. (People v. Harrison (2005) 
    35 Cal.4th 208
    , 244 (Harrison).) We
    will not reverse a conviction for prosecutorial misconduct “unless it is
    reasonably probable that a result more favorable to the defendant would have
    been reached without the misconduct.” (People v. Crew (2003) 
    31 Cal.4th 822
    ,
    839 (Crew).) “ ‘[A] prosecutor may not invite the jury to view the case
    through the victim’s eyes, because to do so appeals to the jury’s sympathy for
    the victim.’ ” (People v. Leon (2015) 
    61 Cal.4th 569
    , 606, quoting People v.
    Leonard (2007) 
    40 Cal.4th 1370
    , 1406.)
    Additionally, referring to facts not in evidence constitutes
    misconduct because it tends to make a prosecutor his or her own witness,
    “ ‘offering unsworn testimony not subject to cross-examination.’ ” (People v.
    Hill (1998) 
    17 Cal.4th 800
    , 828 (Hill).) However, prosecutors can discuss and
    draw inferences from evidence. (People v. Lucas (1995) 
    12 Cal.4th 415
    , 473.)
    And “[w]hen the issue ‘focuses on comments made by the prosecutor before
    the jury, the question is whether there is a reasonable likelihood that the jury
    construed or applied any of the complained-of remarks in an objectionable
    fashion.’ [Citations.]” (Harrison, 
    supra,
     35 Cal.4th at p. 244.) We “view the
    statements in the context of the argument as a whole.” (Cole, 
    supra,
     33
    Cal.4th at p. 1203.)
    1. References to Justice
    a. Additional Facts
    Several times throughout the closing argument, the prosecutor told the
    jury the case was about getting justice. After asking the jurors to come to a
    “reasonable and just decision,” he told them the case was really about
    “finding justice and finding the truth and finding closure for Alex [ ].” He
    said the case was Alex’s “opportunity to be heard through the evidence and
    48
    his opportunity to find justice . . . .” He continued: “It’s also about
    Edgar . . . . This was his opportunity to take that stand and get justice and to
    be heard. And that’s what really this case is all about. When it’s over, from
    the beginning until the end, that’s really what it’s about.”
    The prosecutor told the jury: “[W]hat’s sad about cases like this is they
    are dirty. They’re not like what you would like to see. There’s no DNA.
    There’s no video. There’s nothing there. But do we just throw away cases
    like that and say, well, we don’t have that, so let’s not follow up with tips we
    get from crime stoppers or from confidential informants because they’re dirty
    or they’re not clean like DNA? Or do we want to find justice?”
    Near the end of his closing argument, referencing Aranda and
    Palomino as cooperating witnesses, the prosecutor said, “If you believe that
    we gave the other two a deal that is way too sweet, that’s on me. That’s on
    my office. That’s not on Edgar [ ]. That’s not on Alex [ ]. So even if you
    believe that, don’t just throw out everything because you think we screwed
    up, which we didn’t. But don’t let the defense convince you of that because
    that’s not justice. That’s not teaching anybody a lesson. You’re not teaching
    the government or the people a lesson. You’re punishing Edgar [ ] and you’re
    punishing Alex [ ].”
    In his rebuttal, after explaining why the People concluded it was not
    Aranda or Palomino who shot Edgar and Alex, the prosecutor explained,
    “We’re trying to find the truth. We’re trying to find what’s going on. . . .
    We’re looking for the shooter in this case. We want justice, and that’s what
    happened.”
    Near the end of his rebuttal, the prosecutor concluded: “So as I started
    and I will end you with, if you look at all the evidence and you look at it in a
    reasonable manner, and you—and you realize what we’re here to do—and as
    49
    I started, I said we’re here to find justice. We’re here to find the truth. We’re
    here to find the truth for Edgar [ ] and we’re here to find the truth for Alex [ ].
    That’s what we’re doing. That’s what this case is about is hearing their
    voices and finding the truth and holding the defendant accountable for what
    he did and what happened in this case.”
    b. Analysis
    Viewed in the full context of the closing argument, the prosecutor’s
    comments did not rise to a level of denying Samaniego the right to a fair trial.
    The prosecutor did not rely on passion to persuade the jury about
    Samaniego’s guilt. He asked the jury to be reasonable in its evaluation of the
    evidence and its decision-making. He told the jury the People bore the
    burden of proving Samaniego’s guilt beyond a reasonable doubt, and the
    People had to prove that Samaniego did not act in self-defense. The
    prosecutor spent the vast majority of the closing arguments explaining why
    the evidence supported the People’s theory that Samaniego was the shooter,
    discussing the elements of the various charges against the defendant,
    explaining why the jury should conclude Samaniego acted with the required
    malice aforethought, and why the shooting was deliberate. He acknowledged
    the conflicting stories presented by Edgar and Palomino and argued why the
    jury should believe Edgar. The prosecutor explained why the evidence
    pointed to Samaniego as the shooter and not to one of the other witnesses,
    identifying the corroborating evidence and similarity of several of the
    witnesses’ recitations of the events.
    And the prosecutor’s rebuttal comment that “we want justice” was
    made in the context of explaining that the People sought the truth and that it
    was Samaniego and not Aranda who shot Edgar and Alex. Taken together,
    these comments show the prosecutor was requesting a just and reasonable
    50
    verdict based on the evidence, and it is not reasonably probable that absent
    these comments the jury would have reached a different conclusion. (See
    Crew, 
    supra,
     31 Cal.4th at pp. 839-840.)
    Although we conclude that these comments were not so impassioned or
    so inflammatory that they give rise to bias that prejudiced the defendant or
    caused an unfair trial, we disapprove of the prosecutor’s references to the
    jury as present at the trial to “find justice.” Communities are served by
    jurors doing their work in a lawful, unbiased fashion. (See People v. Fields
    (1983) 
    35 Cal.3d 329
    , 362 [appeals to passion and prejudice invite departure
    from duty to view evidence objectively].) The job of “doing justice for the
    victim” is not the jury’s. The role of a jury is to apply to the law fairly and
    even-handedly to the facts, whether this leads to a conviction or an acquittal.
    2. References to Crime Stoppers
    a. Additional Facts
    While discussing how Detective Adams came into the information that
    led to reopening the case, the prosecutor explained that she got her
    information from confidential informants. The prosecutor said that a juror
    might think, “ ‘I don’t like this whole confidential informant thing, you know?
    This doesn’t sound right.’ ” But “That’s what we have. We have Crime
    Stoppers. We have different things where people can call in and can
    anonymously give information. And think about this. This is a case where
    people know what happened, but nobody can talk about it. So, in order to
    find justice, in order to get the voice for the victims in this case, we have to
    listen to voices of people that don’t want to get involved. And that’s what gets
    them on the radar. That’s what gets Palomino—and that’s where Palomino’s
    name comes up. . . .”
    51
    b. Analysis
    The prosecutor did not tell the jurors the information used to solve the
    crime came from an anonymous caller to Crime Stoppers. He referred to
    Crime Stoppers as one example of the types of anonymous information police
    relied on to solve some crimes. And he did this in the context of explaining
    that police relied on anonymous or confidential sources when investigating
    crimes in a community where the public was reluctant to share information
    with police for fear of retaliation, as was the case here. He also made the
    reference to rebut the implication that the information was inaccurate
    because of its confidentiality or anonymity, commenting that tips from Crime
    Stoppers or confidential informants might be “dirty,” but they were
    necessary. The prosecutor did not misstate the evidence on this point.
    As we previously noted, even if these various statements Samaniego
    now complains of were to have risen to the level of misconduct, none of them
    was so serious that an objection and admonition would have been inadequate
    to cure the harm; thus, the argument is forfeited. (Wharton, supra, 53 Cal.3d
    at p. 566.) Finally, the trial court instructed the jury that arguments were
    not evidence, and that it was up to the jury to decide facts based on evidence.
    (See CALCRIM Nos. 200 & 222.) We presume the jury understood and
    followed these instructions. (People v. Hajek and Vo (2014) 
    58 Cal.4th 1144
    ,
    1178.)
    IX.
    INEFFECTIVE ASSISTANCE OF COUNSEL
    Samaniego alleges his attorney provided ineffective assistance of
    counsel for a litany of reasons, including many of the issues we addressed
    ante. Among the remaining alleged errors by his attorney are the attorney’s
    failure to (1) request CALCRIM No. 350 regarding defendant’s character;
    52
    (2) object to Detective Adams’s testimony that his photograph looked like the
    composite developed by Edgar; (3) object to the admission of the gunshot
    residue report on Aranda; and (4) object to testimony regarding confidential
    informants.
    To demonstrate ineffective assistance of counsel, Samaniego bears the
    burden of demonstrating his attorney’s performance (1) fell below an
    objective standard of reasonableness under prevailing professional norms,
    and (2) the deficient performance prejudiced the defense. (Strickland v.
    Washington (1984) 
    466 U.S. 668
    , 687-688.) We evaluate counsel’s conduct
    with deference and “indulge a strong presumption that counsel’s acts were
    within the wide range of reasonable professional assistance.” (Dennis, 
    supra,
    17 Cal.4th at p. 541.)
    When the alleged error is a failure to object or to act, it is difficult in a
    criminal case to determine why trial counsel did not do what appellant now
    claims was required. Defense counsel has latitude in deciding how to defend
    a criminal case. “ ‘ “[If] the record on appeal sheds no light on why counsel
    acted or failed to act in the manner challenged[,] . . . unless counsel was
    asked for an explanation and failed to provide one, or unless there simply
    could be no satisfactory explanation,” the claim on appeal must be rejected.’
    [Citation.]” (People v. Mendoza Tello (1997) 
    15 Cal.4th 264
    , 266.) Often,
    “such a case is more appropriately decided in a habeas corpus proceeding.”
    (Id. at pp. 266-267.)
    While we do not know specifically why Samaniego’s attorney made the
    strategic decisions he did, we do not conclude that they clearly or obviously
    demonstrated ineffective assistance. For example, we can glean that he
    decided not to request CALCRIM No. 350 because the record does not reveal
    that there was substantial evidence of a character trait which would create
    53
    doubt regarding Samaniego’s guilt. Similarly, defense counsel’s failure to
    object to certain testimony by Detective Adams about the similarities
    between Samaniego’s DMV photographs and the composite developed by
    Edgar may have been because he was challenging that action by arguing the
    photographs were not actually all that similar, using testimony from the
    expert to make this point. We simply do not know on this record why defense
    counsel made the strategic decisions he did, and we are not inclined to
    speculate.
    If Samaniego has a remedy for this claim, it is by a separate habeas
    corpus petition in the trial court, and we note no such companion petition was
    filed in this matter.
    X.
    CUMULATIVE ERROR
    Samaniego asks us to review the cumulative impact of the alleged
    errors previously addressed. He notes that even independently harmless
    errors can “rise by accretion to the level of reversible and prejudicial error”
    (Hill, supra, 17 Cal.4th at p. 844), and he maintains that here multiple errors
    have violated due process by resulting in an unfair trial (see Chambers v.
    Mississippi (1973) 
    410 U.S. 284
    , 298-303). However, rather than explain how
    the accumulation of harmless errors has denied due process here,
    Samaniego’s main focus is that he was denied a fair trial because his attorney
    provided ineffective assistance of counsel, and the court did not replace his
    attorney when requested during the Marsden hearing process.
    Because Samaniego failed to meet his burden to demonstrate
    ineffective assistance of counsel, the ineffective assistance of claim does not
    form a basis for his cumulative error charge. We concluded ante that most of
    the claims of error lacked merit, and as we explain post, the court did not err
    54
    in denying the Marsden requests. The only error we found regarded the
    inclusion of CALCRIM No. 3471. Even accepting this instruction as
    erroneously offered, the result was not prejudicial to Samaniego. Because the
    court committed no other error, the cumulative error doctrine has no
    application. (People v. McWhorter (2009) 
    47 Cal.4th 318
    , 377 [no cumulative
    error when no error]; People v. Butler (2009) 
    46 Cal.4th 847
    , 855 [rejecting
    cumulative effect claim when court found “no substantial error in any
    respect”].) Accordingly, we conclude there is no due process violation here.
    (See People v. Holt (1984) 
    37 Cal.3d 436
    , 458 [cumulative error claim
    assessed for reasonable probability of more favorable result].)
    XI.
    MARSDEN HEARINGS
    Samaniego contends the court erred by refusing to hold one requested
    Marsden hearing and by declining to appoint new public defense counsel
    despite Samaniego’s repeated requests.
    A. Legal Principles
    Upon request, the trial court must conduct a Marsden hearing at which
    the defendant states specific reasons for the requested dismissal of counsel.
    (People v. Sanchez (2011) 
    53 Cal.4th 80
    , 89.) If the defendant fails to specify
    adequate reasons for the requested substitution, the court may properly deny
    the request. (People v. Bean (1988) 
    46 Cal.3d 919
    , 947-948; People v. Silva
    (1988) 
    45 Cal.3d 604
    , 622.) “A trial court should grant a defendant’s Marsden
    motion only when the defendant has made ‘a substantial showing that failure
    to order substitution is likely to result in constitutionally inadequate
    representation.’ ” (People v. Hines (1997) 
    15 Cal.4th 997
    , 1025; People v.
    Webster (1991) 
    54 Cal.3d 411
    , 435 (Webster) [court has discretion to deny
    55
    motion if defendant fails to show failure to substitute would substantially
    impair defendant’s right to counsel].)
    The court considers whether counsel has consulted with the defendant,
    failed to present a defense, adequately investigated facts and law, and
    whether counsel has made omissions due to inadequate preparation.
    (Marsden, supra, 2 Cal.3d at p. 123.) If the defendant shows “ ‘ “appointed
    counsel is not providing adequate representation or that defendant and
    counsel have become embroiled in such an irreconcilable conflict that
    ineffective representation is likely to result,” ’ ” the defendant is entitled to
    relief. (People v. Streeter (2012) 
    54 Cal.4th 205
    , 230.)
    Inadequate representation exists when counsel has a conflict of interest
    that undermines the attorney’s duty of loyalty to the client or there is an
    actual conflict that affects the attorney’s performance. (People v. Doolin
    (2009) 
    45 Cal.4th 390
    , 417.)
    Disagreements about trial tactics are insufficient to demonstrate an
    irreconcilable conflict. (People v. Alfaro (2007) 
    41 Cal.4th 1277
    , 1320
    (Alfaro).) Lack of rapport or a breakdown in communication likewise are
    insufficient to demonstrate an irreconcilable conflict; otherwise, defendants
    “ ‘ “effectively would have a veto power over any appointment” ’ ” leading to
    eventual appointment of preferred attorneys, which is not the law. (People v.
    Memro (1995) 
    11 Cal.4th 786
    , 857.) The failure to file a motion that the
    attorney determines is futile also does not establish a constitutionally
    deficient performance. (People v. Gutierrez (2009) 
    45 Cal.4th 789
    , 804-805.)
    “We review the denial of a Marsden motion for abuse of discretion.”
    (People v. Taylor (2010) 
    48 Cal.4th 574
    , 599.) There is no abuse of discretion
    “ ‘unless the defendant has shown that a failure to replace counsel would
    56
    substantially impair the defendant’s right of assistance of counsel.’
    [Citation.]” (Ibid.; People v. Mungia (2008) 
    44 Cal.4th 1101
    , 1128.)
    B. The Marsden Hearings
    1. June 8, 2016 Hearing
    Samaniego told the court he had a conflict of interest with his court-
    appointed attorney because he had requested full discovery numerous times
    over the preceding eight months and his attorney had not provided it to him.
    The full discovery was mostly audio tape, and the attorney was playing the
    recordings for him, but Samaniego wanted transcripts. Samaniego also
    wanted more than a month to review written transcripts to be prepared for
    the preliminary hearing.
    Samaniego told the court that his attorney had lied because the
    attorney knew one codefendant had become a cooperating witness and when
    asked where that person was housed, his attorney said he did not know.
    Samaniego did not believe his attorney was qualified or experienced
    enough for such a “big” and “high-profile” case.
    Finally, Samaniego accused his attorney of doing everything last
    minute instead of when he was directing his attorney to act, and he
    complained that his attorney did not want to subpoena all the witnesses,
    which was what Samaniego wanted to do.
    Defense counsel told the court the district attorney had taken six weeks
    to share discovery, and that he had spoken with the prosecutor numerous
    times before he eventually received it. The discovery was complicated by
    codefendants who had become cooperating witnesses and by the involvement
    of confidential informants, necessitating redaction of some material. The
    prosecutor’s office had not transcribed the audio, so his office was
    transcribing the relevant witness audio, but it was time-consuming. As his
    57
    office finished transcribing the relevant portions, he was giving copies to
    Samaniego, and Samaniego would have an opportunity to listen to all the
    relevant audio information before the preliminary hearing.
    Samaniego’s counsel told the court he had been completely candid with
    his client; no one informed him the former codefendants would be
    cooperating, and at the time he discussed the codefendants with Samaniego,
    he believed both were in custody.
    Defense counsel detailed his experience as a public defender over the
    course of approximately a decade, during which time he had handled
    thousands of cases and taken 50 cases to jury trial, including cases with
    serious crimes.
    Defense counsel told the court that he had a difference of opinion
    regarding subpoenaing every possible witness, and that was a strategy
    decision. He also said he had personally interviewed witnesses and tried to
    talk with anybody with information about the case.
    The court denied Samaniego’s motion, outlining its belief that defense
    counsel was providing more than adequate representation. It concluded
    there was no credible evidence that defense counsel had lied to Samaniego,
    and it was not uncommon for the district attorney’s office to take actions like
    persuading codefendants to become cooperating witnesses without informing
    defense counsel. It found that defense counsel had spent time with
    Samaniego and catered to some of Samaniego’s requests, including
    transcribing audio recordings. The court told Samaniego the attorney’s
    decision not to call all of the witnesses at the preliminary hearing was a
    strategic choice based on counsel’s 10 years of experience, and it commented
    that it could hurt the case to call all the witnesses at the hearing.
    58
    The court also found that defense counsel was not unqualified simply
    because he had never sat first chair at a murder trial; the attorney had
    participated in such trials as second chair and had handled other cases
    involving violence.
    Ultimately, the court determined there was no conflict between
    Samaniego and his attorney; if there were a conflict, it was not irreconcilable,
    and if it were irreconcilable, the court did not believe it would likely result in
    ineffective representation.
    2. July 27, 2016 Hearing
    Samaniego asked for his attorney to be replaced because defense
    counsel gave him paperwork late and told Samaniego he was seeking an
    extension of time because he wanted to go on vacation. Samaniego had told
    his attorney he needed the transcripts as soon as possible, and he still had
    not received two transcripts that he wanted before the preliminary hearing.
    Defense counsel had only visited him four times in the previous two
    months, and he never stayed longer than an hour. The investigator had
    visited maybe five times, but only for about 45 minutes each time, and he did
    not always have the right equipment or bring Samaniego new transcripts.
    Samaniego believed defense counsel was too busy for his case; he wanted an
    attorney who would meet with him at least twice a week for two or three
    hours each meeting. He did not feel ready for the preliminary hearing
    because he had not received all the transcripts.
    Defense counsel responded that he took a two-week vacation that had
    been planned eight months earlier and was unrelated to the continuance he
    requested. He was on vacation during the time period Samaniego referenced
    regarding his number of visits, and his investigator had visited Samaniego
    lots of times. Samaniego had not asked him to visit more frequently, or he
    59
    would have, but he had done a lot of work “behind the scenes.” It was not
    that he was not spending time on the case; he was spending it driving to
    various locations to interview witnesses.
    His office was completing transcripts, and he provided them to
    Samaniego as they were completed. He had given Samaniego everything he
    had received from the district attorney’s office. He was prepared and ready to
    move forward with the preliminary hearing that day, and he did not believe
    there was any reason he and Samaniego could not work together.
    The court said that Samaniego’s allegations that his attorney was not
    properly representing him fell flat; defense counsel was prepared as much as
    he could be. The court denied the motion.
    3. September 7, 2016 Hearing
    Samaniego claimed a conflict of interest with his attorney because his
    attorney had not supplied him with paperwork he had been requesting from
    the beginning. Samaniego wanted transcripts of audio recordings.
    Defense counsel had requested from the district attorney’s office any
    audio he had not yet received, and his office was in the process of transcribing
    a lot of the audio recordings they had, which was very time-consuming. He
    said if they did not feel prepared for trial in April, the district attorney would
    work with them on another trial date.
    The court denied the motion.
    Samaniego then told the court he wished to proceed in propria persona.
    The court advised against it and asked Samaniego if he wanted time to think
    about it. The court said it would not appoint an attorney to help him
    60
    represent himself and continued the potential Lopez6 hearing for a week to
    give Samaniego time to consider his options.7
    4. April 11, 2017 Hearing
    Samaniego alleged his attorney was providing ineffective assistance
    because he had not provided a written transcript for every audio recording
    and because Samaniego was not present at the trial readiness conference. He
    also complained that his attorney did not want to hire a gun expert or a crime
    scene reconstruction analyst, a forensic evidence expert, or a false statement
    expert. Samaniego did not trust his attorney, who had not visited in a long
    time, and he asked the court to appoint a different attorney. He told the
    court he had fired his court-appointed attorney on April 3.
    Defense counsel explained that Samaniego wanted some cell recordings
    and audio recordings that his office did not have but had requested, and he
    did not know how relevant those recordings were. He did not believe the
    prosecution planned to use them. He explained that when Samaniego
    requested a transcript of an audio recording, he made the request, and his
    office did its best to meet the request, providing them to Samaniego as they
    were completed. The defense attorney was fully prepared for the preliminary
    hearing and felt it went well. It proceeded because there was no legal basis
    for a continuance. He explained that the expert witness decisions were
    strategic ones; he did not believe the specific experts Samaniego wanted
    would assist in the case, and if there were an expert who would assist, he
    would consider using that person.
    6    People v. Lopez (1977) 
    71 Cal.App.3d 568
     [court ensures defendant
    understands right to appointed counsel at no cost].)
    7     Samaniego withdrew his request for a Lopez motion.
    61
    Defense counsel also relayed his activities in the matter: although he
    was prevented from speaking to the two cooperating witnesses, he visited
    prison three times to locate potential witnesses, and he interviewed
    numerous witnesses and other parties involved. He was involved in
    researching issues related to the recent passage of Proposition No. 57, which
    was applicable to the matter.
    The court acknowledged Samaniego’s frustrations and commented that
    the case was complicated by being a cold case. It acknowledged that
    Samaniego seemed to believe his attorney did not have his best interests at
    heart, but commented Samaniego’s dissatisfaction seemed subjective. The
    discovery was slow because of safety concerns, and some of the experts
    Samaniego was requesting could do damage to the case, so the defense had to
    be strategic about which experts to use. The court asked Samaniego to show
    more patience because his attorney had his best interests at heart, was doing
    a fine job, and was an experienced attorney. It concluded that defense
    counsel had properly represented the defendant and commented that there
    had “not been a breakdown in this relationship of such a kind that make it
    impossible for [defense counsel] to continue.” The court denied the motion.
    5. December 8, 2017 Hearing
    Samaniego said he still had not received all the discovery. He
    complained that when he told his attorney he wanted to discuss the case,
    defense counsel would say he was too busy and refuse to visit. He could not
    talk with his attorney on the phone because he was in administrative
    segregation.
    Defense counsel responded that he had a reasonable case load and tried
    to visit Samaniego as often as possible, but he could not see his client as
    frequently as his client wanted. He had made numerous requests for certain
    62
    discovery to the district attorney, and there were about 2,000 pages, with
    portions blacked out. He had gone through each page with the district
    attorney, and the district attorney believed the redacted items were not
    discoverable. There had been a pause in the case since the passage of
    Proposition No. 57 the previous year, but he had interviewed every witness
    willing to talk.
    The court denied the motion, telling Samaniego that he had not stated
    sufficient grounds for a new attorney based on the subjective feeling that
    things were not happening in his case when a lot was occurring. The court
    also commented that defense counsel was a “resident expert” on Proposition
    No. 57, which was going to be the most critical thing at the next phase of the
    case.
    6. August 17, 2018 Juvenile Hearing
    Samaniego challenged the timing of the juvenile transfer hearing
    because he had not received everything from his attorney, and he would not
    have enough time to prepare because each time his attorney visited, the
    attorney wanted to leave.
    The court told Samaniego the removal hearing was to decide whether
    he would be moving through the juvenile system or the adult system. It
    asked defense counsel if he felt he would not be prepared to proceed with the
    removal hearing in October, and defense counsel said he would be prepared.
    Samaniego again said he was tired of the case moving forward when he
    did not feel personally prepared, but the court said two months was enough
    time for the parties to be ready to proceed. It explained that additional time
    would not add to the case.
    Defense counsel gave his word that he would meet with his client to
    review his strategy for the juvenile transfer hearing, and he told the court
    63
    they had subpoenaed some records from the Sheriff’s Department that were
    still incomplete.
    7. October 15, 2018 Hearing
    After the case was transferred to juvenile court for a Proposition No. 57
    hearing, Samaniego moved to replace his counsel. He said his attorney was
    incompetent by failing to make a section 995 motion to dismiss all the
    allegations after arraignment. Samaniego had asked his attorney to seek a
    bail reduction or ask for a release on his own recognizance, and the attorney
    had done neither. He told the court his attorney rushes when they visit.
    The court explained that the jurisdictional issue had to be determined
    before any of the motions Samaniego wanted his attorney to file could be
    filed, and he was appearing in juvenile court so the court could make a
    jurisdictional decision because he was 17 at the time of the crime. It
    explained that defense counsel had a lot of witnesses lined up to testify on
    Samaniego’s behalf at the jurisdictional hearing, and in the court’s view,
    defense counsel had “done everything he could do to get this case prepared for
    this removal hearing.”
    Samaniego told the court he believed defense counsel’s briefing was
    missing information, and that the attorney had decided what to put in the
    papers without sharing the briefs before they were filed. He said his attorney
    and the attorney’s supervisor had been pressuring him to sign a plea
    agreement.
    Defense counsel explained that he discussed potential plea bargains
    with Samaniego, as well as negotiation tactics, and his supervisor
    participated to offer a second opinion.
    The court told Samaniego that his attorney had filed a very lengthy
    pleading, and the brief raised every possible issue that could be raised. It
    64
    understood Samaniego wanted to focus on whether he was guilty beyond a
    reasonable doubt, but that was not considered in the juvenile court hearing,
    where the issue was whether the case should be litigated in juvenile court or
    adult court. And the court said defense counsel was required to address a
    potential plea with his client and told Samaniego it would be rare in a case
    involving a murder charge for an attorney not to discuss that possibility. The
    court suggested Samaniego cooperate with his attorney and denied the
    motion.
    8. December 4, 2018 Hearing
    Samaniego told the court he had “a big conflict of interest” with his
    attorney; he did not want to talk to his attorney or his office. He did not
    receive paperwork before the Proposition No. 57 hearing, and his attorney
    had omitted information from the briefing before the juvenile court that he
    thought should have been included. Samaniego complained that the juvenile
    court placed a lot of weight on the victim being shot in the back, which he
    said was factually inaccurate because the bullet lodged in Edgar’s back, but
    Edgar was not shot in the back.
    The court pressed Samaniego about the juvenile court briefing.
    Samaniego wanted his attorney to highlight the fact that one of the
    confidential informants did not name him as a shooter, just placed him at the
    scene. He told the court he was very unhappy with what counsel presented
    in juvenile court; he wanted that court to know he had been working before
    the arrest, and that he voted three years in a row. He was upset the juvenile
    court considered an old case that he pled guilty in, and he wanted his
    attorney to tell the court that the victim in that case was not hurt that badly
    even though he was charged with great bodily harm. He also wanted the
    65
    juvenile court to understand that he was not hanging out with gang
    members, he was helping them because he had a moving company and they
    were working for him.
    Samaniego wanted his attorney to ask for bail reduction or file a
    section 995 motion to dismiss allegations. Also, there had never been a bail
    review, and he was not a threat to society.
    Samaniego also complained that the court he did not have a direct
    phone number for his attorney, that he only got his attorney’s voicemail, and
    that his attorney had gone on vacation three or four times without telling
    Samaniego. When defense counsel visited, he only stayed for about an hour
    each visit before the attorney began checking his watch.
    Samaniego also claimed that his attorney’s supervisor had dropped off
    a package and said their office was not going to help Samaniego. Finally, he
    told the court the parties continued to move court dates, and he still did not
    have all the discovery. When asked, Samaniego clarified that there were a
    lot of blank pages in the discovery, and he wanted his attorney to challenge
    the protective order.
    Defense counsel told the court he had explained his strategy to
    Samaniego, discussed the odds of success, and explained how juvenile
    jurisdiction operated differently than criminal court. He also explained that
    there is a presumption of guilt in determining jurisdiction in juvenile court.
    After the juvenile court reinstated criminal proceedings, defense
    counsel’s office filed a writ to challenge the decision; he had not told
    Samaniego about this at the time because Samaniego refused his visit.8
    8   Samaniego’s request for judicial notice of the petition for writ of
    mandate in case No. D074913 is granted.
    66
    He explained the discovery took so long because the use of cooperating
    witnesses necessitated redactions. Then, he began paying attention to
    Proposition No. 57 because there was a question of Samaniego’s eligibility for
    a juvenile transfer. When the case was transferred to juvenile court for a
    hearing, defense counsel spent months preparing for the transfer hearing,
    and a bail reduction hearing was not available in juvenile court.
    Defense counsel explained that he would consider filing a section 995
    motion; he had not done so sooner because they began contemplating the
    juvenile transfer hearing right after the preliminary hearing.
    He had previously provided Samaniego with his direct phone number.
    Defense counsel said he visited Samaniego as often as he could, and the
    visits averaged about two hours in length. He visited Samaniego 16 times in
    2018 and spoke with him approximately twice a month by phone. He told the
    court he did not challenge the confidential informants in juvenile court,
    which were validly included in the probation officer’s report, but he did
    convince the juvenile court to strike some of the informants’ statements as
    lacking credibility.
    The attorney’s supervisor went to see Samaniego while defense counsel
    was on vacation. He could not imagine his supervisor telling Samaniego that
    his office would not help Samaniego, but it was possible he said that what
    Samaniego wanted done was not feasible.
    Additionally, information from confidential informants was not used at
    the preliminary hearing; witnesses testified about what they observed or
    heard from Samaniego, and Samaniego had reports about what the witnesses
    would say. He had asked the district attorney about the redacted pages, and
    he could still challenge the information if it was important.
    67
    Defense counsel said he was “ready, willing, and able to take this case
    on,” that he had about 20 presenting cases, but that he was in the best
    position to help Samaniego.
    The court explained that bail review requests were not common in
    certain instances because it makes the case more public and harder to seat
    an impartial jury. It asked if the conflict about which Samaniego was
    complaining was that his attorney was doing things Samaniego did not like
    and commented, “In other words, he doesn’t do it your way.”
    The court explained that a defendant cannot select a particular
    appointed attorney; there has to be a legal basis for relieving defense counsel,
    and none existed. While Samaniego could retain a private attorney, there
    was no legal basis under Marsden to justify substituting a different attorney.
    Samaniego said he did not trust defense counsel because he had lied
    “numerous times,” telling him he would request bail reduction or release on
    his own recognizance. He also said his attorney had lied about planning to
    visit him and agreeing to take into consideration Samaniego’s ideas.
    9. Denial of Marsden Hearing January 16, 2019
    On January 16, 2019 at a status conference, Samaniego requested
    another Marsden hearing. The court said it could see there had been at least
    five Marsden hearings denied, the most recent one five weeks earlier. It
    denied the request for the hearing, explaining, “I don’t think it would be
    fruitful, and it would be a waste of court time and resources as well as the
    attorney’s time and resources.”
    Samaniego told the court there was a conflict of interest between him
    and defense counsel, and he did not want the proceeding to go forward. The
    court said it was not going to stop the proceedings, it was denying the request
    for a Marsden hearing.
    68
    10. March 4, 2019 and March 8, 2019 Hearings
    About six weeks later, Samaniego told the court his attorney was
    ineffective because he would not submit a second writ petition to challenge
    the outcome of the juvenile hearing. He wanted defense counsel to seek a
    bail reduction hearing, and defense counsel had not. Samaniego was upset
    his attorney had not filed any motions, like a section 995 motion, and his
    attorney was not objecting to anything. Samaniego said no one from the
    public defender’s office came to see him anymore, and when he asked his
    attorney to visit, the attorney said he could not make it. And Samaniego
    complained that too much of the discovery was redacted and said the district
    attorney withheld information from the juvenile hearing that would have
    helped him. He told the court that defense counsel had failed to prove he was
    17 at the time of the alleged crime, and his attorney just did whatever he
    wanted; he did not trust his attorney.
    Defense counsel explained that the appellate court had denied the writ.
    He told the court he did not seek the bail reduction because sometimes the
    court would increase the amount of bail and did not believe it was worth the
    risk. He explained there was no obligation to file a section 995 motion, and
    he did not believe one was warranted because a cooperating witness had
    testified at the preliminary hearing, which was enough to bind the case over
    for trial. He visited Samaniego upwards of 20 times in 2018, each meeting at
    least an hour in duration. He addressed the redacted pages with the district
    attorney, and nothing relevant to the case had been blacked out. Defense
    counsel also noted that there is a presumption of guilt in juvenile court, and
    that the whole reason they were before the juvenile court was because
    Samaniego met the age requirement.
    69
    The court told Samaniego his case was a complicated one, with
    extensive motion work. The court said that a bail reduction hearing could go
    either way, the appeal of the juvenile court’s decision had been denied, and
    defense counsel had visited him. The court also explained why a section 995
    motion may not have been the best strategy and why Samaniego was not
    entitled to the redacted information. The court denied the motion.
    At that point, Samaniego asked the court for a waiver to represent
    himself. In a follow-up hearing, Samaniego told the court his attorney had
    been “stepping all over [him],” and he could not let that happen anymore.
    The court said it would give Samaniego a couple weeks to consider whether
    he wanted to represent himself. Although the court did not think it was in
    Samaniego’s best interest, it would allow him to do so.
    11. Pretrial Complaints
    On March 22, Samaniego told the court he did not want to represent
    himself, but he had a conflict of interest with his attorney because defense
    counsel failed to call helpful witnesses at the juvenile hearing, and they had
    never been on the same page. He asked the court for standby counsel, and
    the court told him the county did not have standby counsel, so he would be on
    his own. The court explained there were no grounds to fire his attorney, so
    he could retain defense counsel or represent himself. Samaniego said he
    would represent himself if he could not have a different lawyer.
    Defense counsel did not believe there was a legal conflict between
    them, and he knew the case better than anyone in the courtroom.
    Samaniego said he was not sure what to do, and the court offered him
    some additional time to think about it. The court set a hearing for April 12.
    On April 12, Samaniego said he did not want to represent himself, but
    he wanted to present a letter, which the court received into evidence. The
    70
    letter detailed Samaniego’s dissatisfaction with his attorney. It stated that
    he wanted to communicate with his attorney three times a week to discuss
    motions and defense strategy. To ensure that occurred, his attorney needed
    to persist in calling him because of Samaniego’s limited access to the phone.
    He expressed what plea deal he would be willing to accept and stated that
    defense counsel should not waste his time by presenting any other offers. He
    concluded with a statement that he needed all exculpatory evidence and full
    discovery.
    On July 8, at the end of a hearing, Samaniego told the court that there
    was still a conflict between him and his attorney and the investigator. The
    court responded, “Okay.”
    12. July 31, 2019 Hearing
    Samaniego told the court his attorney saw him four times in the
    previous month or two, but they did not discuss jury instructions or what the
    defense strategy would be. He wanted defense counsel to request
    instructions for involuntary and voluntary manslaughter, but his attorney
    had not. He was also upset because his attorney asked him to sign a plea
    deal.
    Defense counsel reported that he would ask for voluntary or
    involuntary manslaughter, but it would be up to the court and depend on the
    state of the evidence. He explained the contract was a statement about what
    Samaniego was willing to offer. The district attorney had agreed to accept a
    nine-year stipulated offer, but Samaniego had turned that down.
    The court told Samaniego it appeared that the defense attorney was
    working hard and in Samaniego’s best interest. It denied the motion.
    71
    C. Denial of Motions Did Not Abuse Discretion
    Samaniego contends the court erred in denying each of the Marsden
    motions because his attorney performed inadequately outside the courtroom
    and because his attorney failed to adequately prepare for trial and the
    juvenile court fitness hearing. He maintains that the record demonstrates
    his attorney failed to “investigate and present evidence that was significant
    to the key issues in his case and his fitness hearing.” He further argues that
    he told the court he did not trust his counsel and that he “disagreed on
    defense strategy” because he wanted alternative defenses presented, not just
    a misidentification defense. And he contends that none of the Marsden
    hearings rectified his dissatisfaction or distrust over the lengthy period of the
    attorney client relationship; he never found his attorney’s representation was
    effective.
    Samaniego must show that the court abused its discretion in denying
    his motions with evidence presented to the court to demonstrate that his
    attorney was not providing adequate representation or that he and defense
    counsel were embroiled in such an irreconcilable conflict that the result
    would be ineffective assistance. (People v. Jones (2003) 
    29 Cal.4th 1229
    ,
    1244-1245.) But Samaniego does not detail what specifically showed
    constitutionally inadequate representation by his attorney. His arguments
    on appeal highlight that the crux of his disagreement was over strategy, not
    due to any conflict of interest, and the evidence in the record shows that his
    distrust was not based in evidence, but only related to Samaniego’s
    misperceptions about the defense counsel’s access to evidence.
    Samaniego told the court at each of the Marsden hearings that his
    attorney did not spend enough time with him. He said his attorney did not
    visit him frequently enough; when they visited, his attorney looked at his
    72
    watch; his attorney took vacations without telling him; and once he
    complained that he did not have his attorney’s direct phone number. Defense
    counsel reported meeting with Samaniego for at least an hour each time they
    met and sometimes closer to two or three hours, and his visits averaged about
    two hours in length. He acknowledged looking at his watch because he had
    other clients and work to conduct, and he told the court at least once that he
    could not see his client as frequently as he wanted. He was spending a
    significant amount of time on Samaniego’s case and was not burdened by
    other cases, and he had provided Samaniego with a direct phone number.
    The court explained it was often in a defendant’s best interest for the
    attorney to work in his office to put together the case. At one hearing, the
    court explicitly found that defense counsel had spent time with Samaniego
    and catered to some of Samaniego’s requests, including efforts at transcribing
    audio recordings. The court implicitly determined that the amount of time
    counsel was spending with Samaniego was not inadequate. Further, the
    court explained that Samaniego had not stated sufficient grounds for a new
    attorney based on his subjective feeling that things were not happening in his
    case when a lot was occurring. We cannot say the court abused its discretion
    in drawing this conclusion based on the number and length of meetings
    defense counsel reported he or his office participated in.
    Samaniego also expressed concerns about the discovery he was
    receiving. He complained his attorney was withholding discovery, that the
    discovery was provided too slowly, and that some discovery material was
    missing. He wanted his attorney to challenge the protective order that
    resulted in redactions of some of the material, and his attorney failed to file
    such a motion.
    73
    The trial court inquired about these concerns, but his attorney
    explained that he had little control over these issues. Defense counsel did not
    withhold discovery he had received from Samaniego at any point. The initial
    discovery came in the form of audio tapes, which Samaniego’s attorney and
    his office played for Samaniego. Defense counsel requested the recordings
    that his office did not have but that Samaniego wanted, even those the
    attorney did not believe the prosecution planned to use and were not
    relevant. But Samaniego wanted transcriptions of the recordings, and those
    were not supplied by the district attorney. So, defense counsel supplied
    Samaniego with transcripts of the audio as his office completed the time-
    consuming task of transcribing the material.
    At hearings where this was the primary complaint, the court concluded
    that allegations that the attorney was not properly representing Samaniego
    fell flat, and once the court asked Samaniego to show more patience, noting
    that discovery was slow because of witness safety concerns necessitating
    redactions. The record reflects that counsel was adequately sharing
    discovery information with Samaniego.
    Further, with respect to complaints about redactions within the
    thousands of pages of written material, defense counsel told the court he had
    gone through each page with the district attorney, the district attorney
    believed the redacted items were not discoverable, and he said nothing
    relevant to the case had been blacked out. This was not a concern specific to
    Samaniego’s attorney; redactions would have occurred because of witness
    safety concerns.
    Samaniego challenged the adequacy of representation by questioning
    his attorney’s experience and arguing that his attorney had failed to properly
    represent him at the juvenile transfer hearing. Samaniego complained that
    74
    his attorney did not give him an opportunity to review the briefs seeking a
    determination that the juvenile court should retain jurisdiction, and those
    papers excluded information Samaniego thought was important. He also told
    the court his attorney failed to prove his was 17 at the time of the crime,
    failed to call helpful witnesses at the juvenile hearing, and he argued that his
    attorney should have challenged the juvenile court’s finding.
    The court considered defense counsel’s decade of experience, including
    cases involving violence, and determined the attorney’s experience level was
    sufficient to adequately represent Samaniego.
    The court explained the reason the matter was being heard in juvenile
    court was because Samaniego was 17 at the time of the shooting, indicating
    his attorney did not fail to prove this. The court’s impression of the witnesses
    called by defense counsel was different from Samaniego’s; in its view, defense
    counsel had “done everything he could do to get this case prepared for this
    removal hearing.” The court explained to Samaniego that his attorney had
    filed a lengthy pleading which raised every possible issue that could be
    raised, and it explained that Samaniego’s concerns regarded guilt or
    innocence, but that information would not have appropriately been before the
    juvenile court at that time. Finally, defense counsel filed a writ to challenge
    the juvenile court’s determination, but the appellate court denied it. The
    court’s review of these charges demonstrates they lacked merit. Thus, it was
    not an abuse of discretion to deny his Marsden motions for these reasons.
    Some of Samaniego’s other complaints were likewise unfounded. For
    example, Samaniego repeatedly told the court he did not trust his attorney
    because, he alleged, defense counsel had lied numerous times. When pressed,
    Samaniego specified that the lie was that his attorney knew the codefendants
    had become cooperating witnesses and lied about not knowing where those
    75
    witnesses were housed. Defense counsel denied this, explaining no one had
    informed him the former codefendants would become cooperating witnesses,
    and at the time he discussed the issue with Samaniego, he believed both were
    in custody. The court concluded there was no credible evidence defense
    counsel had lied to his client. (Webster, 
    supra,
     54 Cal.3d at p. 436 [with
    questions of credibility, court is “entitled to accept counsel’s explanation[s]”].)
    The other “lie” Samaniego identified was an alleged promise his
    attorney made to request bail reduction or a release on his own recognizance,
    along with agreeing to consider Samaniego’s ideas. Samaniego’s concern was
    a strategy-related one. And although counsel agreed to consider Samaniego’s
    ideas, he decided against many of them. For example, defense counsel did
    not believe a bail reduction hearing was worth the risk of the court increasing
    the bail amount. The court viewed this complaint as one related to strategy,
    explaining that bail review requests were not common in certain instances
    because it makes the case more public and harder to seat an impartial jury.
    (See Alfaro, 
    supra,
     41 Cal.4th at p. 1320.)
    Samaniego also told the court he did not trust his attorney because his
    attorney was pressuring him to enter a plea agreement. Defense counsel
    clarified that he had discussed potential plea bargains, and later he provided
    Samaniego with a statement about what Samaniego might be willing to offer,
    and he told the court that Samaniego declined a nine-year stipulated offer.
    The court told Samaniego that defense counsel was required to address a
    potential plea with his client, and it explained that it would be rare in a case
    involving a murder charge for an attorney not to discuss that possibility.
    Samaniego’s misconceptions about the role of an attorney and his
    tactical decisions are not sufficient to demonstrate inadequate representation
    or irreconcilable differences; thus, the court’s determination that these
    76
    alleged “lies” or discussions about a potential plea could not form the basis of
    a substitution of counsel did not abuse discretion.
    Samaniego’s remaining complaints related to tactical and strategic
    decisions. He wanted his attorney to hire particular expert witnesses, to call
    certain witnesses at the preliminary hearing, and to file a section 995 motion
    to dismiss certain charges. His attorney explained that these tactics were
    considered. He told the court he did not believe the specific experts
    Samaniego wanted would assist in the case. He did not file a section 995
    motion because a cooperating witness had testified at the preliminary
    hearing, and that was sufficient to bind the case over for trial. The court
    likewise explained to Samaniego why a section 995 motion may not have
    been strategically wise before denying the motion on that basis.
    We agree with the trial court that these decisions were tactical ones,
    left within the discretion of the attorney. As disagreements about tactical
    decisions do not constitute an irreconcilable conflict (Cole, supra, 33 Cal.4th
    at p. 1192), the court did not abuse its discretion by concluding these
    disagreements did not warrant a substitution of counsel.
    Finally, we turn to Samaniego’s concern that his attorney would not
    seek jury instructions for voluntary and involuntary manslaughter. While
    Samaniego may have been concerned about that, his attorney told the court
    that it would ask for those instructions, but it would depend on the state of
    the evidence, and it would be up to the court. The court considered this
    information before denying the motion, concluding that it appeared that
    defense counsel was working hard and in Samaniego’s best interest. And
    counsel did request a voluntary manslaughter instruction, which, as we
    previously discussed, was not supported by the evidence. It does not appear
    that Samaniego’s claim that his attorney did not consider his ideas was valid.
    77
    Citing McCoy v. Louisiana (2018) ___ U.S. ___ [
    138 S.Ct. 1500
    ],
    Samaniego implies that his disagreements with counsel were not about
    strategy for how to achieve his objectives, but about actual defense objectives.
    In McCoy, the attorney conceded guilt for three murders to avoid a death
    sentence even though the defendant wanted to pursue an acquittal. (Id. at
    p. 1506.) The Supreme Court held that the attorney could not force a
    defendant to concede guilt and could only make “strategic choices about how
    to best achieve a [defendant’s] objectives.” (Id. at p. 1508.) Samaniego
    attempts to cast his situation as similar to the defendant in McCoy by
    claiming that his defense objectives were not honored. But his claims do not
    show that defense counsel ignored Samaniego’s objectives. Like the
    defendant in McCoy, Samaniego’s objective was to maintain his innocence,
    and defense counsel can make strategic choices for how to best achieve the
    objective. (Ibid.)
    We recognize that Samaniego’s January 16, 2019 request for a Marsden
    hearing was improperly denied, and Samaniego once mentioned a conflict
    with the defense team without specifically requesting a Marsden hearing.
    However, these events do not constitute prejudicial error because the court
    subsequently held a Marsden hearing at which Samaniego an opportunity to
    express all his concerns and the court concluded he was receiving adequate
    representation. The court’s denial of that motion did not abuse its discretion.
    XII.
    RESTITUTION
    Citing People v. Dueñas (2019) 
    30 Cal.App.5th 1157
    , Samaniego argues
    the court violated his due process, equal protection, and Eighth Amendment
    rights by imposing fines and fees without a finding he had the ability to pay.
    He acknowledges he made no request to present argument or evidence on the
    78
    issue but maintains that was because he could not have anticipated the
    assessments could be challenged as excessive fines. He notes that he
    requested a hearing three days after sentencing, and he contends any finding
    of forfeiture demonstrates ineffective assistance of counsel.
    A restitution fine under section 1202.4, subdivision (b), is a punishment
    for a crime. (People v. Castellano (2019) 
    33 Cal.App.5th 485
    , 489.) Inability
    to pay “may not be considered a compelling and extraordinary reason not to
    impose the restitution fine; inability to pay may be considered only when
    increasing the amount of the restitution fine above the minimum required by
    statute.” (Ibid; People v. Romero (1996) 
    43 Cal.App.4th 440
    , 448 [ability to
    pay is a relevant factor in setting restitution fine exceeding minimum].) The
    statutory minimum restitution fine is $300 per case. (§ 1202.4, subd. (b)(1).)
    The trial court imposed a restitution fine of $10,000 under
    section 1202.4, subdivision (b), exceeding the $300 statutory minimum. (See
    ibid.) Samaniego did not object to the fine even though he had a statutory
    right to challenge it. (See id., subd. (c).) His failure to challenge the fine
    forfeits his challenge now based on ability to pay. (Avila, 
    supra,
     46 Cal.4th at
    p. 729 [failure to object to fine under section 1202.4 based on ability to pay
    caused forfeiture]; People v. Frandsen (2019) 
    33 Cal.App.5th 1126
    , 1153-1154
    (Frandsen) [failure to challenge assessments and restitution forfeited
    argument on appeal].)
    Samaniego argues that assessments under Penal Code section 1465.8
    and Government Code section 70373 are “fines” for purposes of the Eighth
    Amendment’s prohibition on excessive fines (People v. Cowan (2020) 
    47 Cal.App.5th 32
    , 45, review granted June 17, 2020, S261952 (Cowan)), and
    that because Cowan had not been decided at the time of his trial, his attorney
    could not have reasonably anticipated an ability to challenge the assessments
    79
    as excessive fines. Thus, he maintains that he did not forfeit the right to
    challenge the $294 in assessments and fees without an ability-to-pay hearing.
    Alternatively, he contend his attorney’s failure to request an ability-to-pay
    hearing demonstrates ineffective assistance of counsel because there could be
    no tactical reason for failing to ask the court not to impose them.
    Samaniego had the opportunity and incentive at sentencing to object
    for lack of ability to pay the restitution fine, but he did not. If Samaniego
    chose not to object to the $10,000 restitution fine based on inability to pay, he
    would not have objected to the additional $294 in fees. Accordingly, we
    conclude Samaniego forfeited any challenge to the assessments and fees for
    failure to object to their imposition at sentencing. (See People v. Gutierrez
    (2019) 
    35 Cal.App.5th 1027
    , 1033 [failure to challenge restitution fine greater
    than minimum for inability to pay forfeits objection to fees on same grounds];
    Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155.)
    Further, although he maintains that he was excused from raising the
    issue because he was sentenced before the Cowan opinion was issued, he was
    sentenced several months after we issued our opinion in People v. Kopp
    (2019) 
    38 Cal.App.5th 47
    , 95-96, review granted, Nov. 13, 2019, S257844
    (Kopp), in which we explained that assessments imposed under Penal Code
    section 1465.8, as well as Government Code section 70373 and former
    80
    Government Code section 29550.1 could properly be challenged by a
    defendant for inability to pay.9
    Samaniego maintains that had the court considered ability to pay, it
    would have determined he lacked the ability to do so because there was
    nothing in the record that indicates he possessed any assets, he was
    represented by the public defender, and he was sentenced to a lengthy prison
    sentence.
    Samaniego’s counsel may have decided not to raise an ability-to-pay
    argument regarding the fees and assessments in this case if he determined
    the challenge would have been futile. Although Samaniego claims there is
    nothing in the record to suggest ability to pay, it was Samaniego’s burden to
    prove this, and it is just one factor for assessing whether a fine is
    disproportionately punitive when an excessive fines objection is interposed.
    (Cowan, supra, 47 Cal.App.5th at p. 49, review granted; Kopp, supra, 38
    Cal.App.5th at pp. 96, 98, review granted.)
    Further, the record indicates that Samaniego previously had a moving
    company that hired others. He also had potential access to funds to pay for
    private counsel through Jessica’s family. Thus, there was evidence in the
    record of an ability to pay, and Samaniego has not cited any evidence in the
    record indicating that during his incarceration he will be unable to pay at
    least some of the $294 imposed as nonpunitive fees. He therefore has not
    9     In contrast to our conclusion in Kopp that court facilities assessment,
    the court operations assessment fees, and the criminal justice administration
    fee are not punitive in nature, a panel of the First District, Division Four,
    concluded in Cowan that because assessments imposed under Government
    Code section 70373 and Penal Code section 1465.8 are conditioned on
    committing a crime, they serve in part to punish the defendant. (Cowan,
    supra, 47 Cal.App.5th at p. 45, review granted.) We part with the panel in
    Cowan on this point.
    81
    shown that his counsel deficiently overlooked a meritorious challenge. (See
    People v. Ochoa (1998) 
    19 Cal.4th 353
    , 432 [“Counsel did not perform
    deficiently for failing to make what would have been a meritless request”].)
    Thus, we cannot conclude his failure to request the ability-to-pay hearing was
    the result of ineffective assistance of counsel in this instance.
    DISPOSITION
    The judgment is affirmed.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    O’ROURKE, J.
    IRION, J.
    82