People v. Ponce CA2/4

Filed 5/28/15 P. v. Ponce CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B250042

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA088447)
v.

CARLOS ESPARZA PONCE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, James B.
Pierce, Judge. Affirmed.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Carlos Esparza Ponce contends that the trial court failed
to recognize and properly exercise its discretion when it denied his motion requesting the
appointment of a particular attorney. He further contends that the court’s error violated
federal and state guarantees of equal protection and therefore requires reversal of his
murder conviction. For the reasons explained below, we agree with defendant on the first
contention but not the second. Because we find the error to be harmless, we affirm the
judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
A. Procedural Background
On December 19, 2011, the District Attorney for the County of Los Angeles (“the
People”) filed an information charging defendant with the 2008 murder of Richard Vera
(Pen. Code § 187, subd. (a)).1 The People alleged the murder was committed for the
benefit of a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)) and involved the
personal and intentional use and discharge of a firearm by a principal (§ 12022.53, subds.
(b), (c), (d) & (e)(1)). The People also alleged defendant had one prior strike conviction
(§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and two prior prison terms within the
meaning of section 667, subdivision (b).
Deputy public defender Gregory Cummings represented defendant at his
preliminary hearing and arraignment. Defendant sought to terminate Cummings and
proceed in propia persona on January 26, 2012. The court advised defendant against
doing so and continued the proceedings to give him time to review the waiver form and
reconsider his position. When defendant returned to court four days later, he reaffirmed
his desire to terminate Cummings and proceed in pro. per. The court accepted
defendant’s waiver of his right to counsel and granted him pro. per. status effective
January 30, 2012. Defendant represented himself for the next few months.
On May 11, 2012, defendant filed a motion seeking appointment of private
attorney Edmont T. Barrett. In a declaration in support of his motion, defendant averred

1
All further statutory references are to the Penal Code unless otherwise indicated.
2
that Barrett represented him in a different criminal case and in the course of that
representation had listened to tape recordings pertinent to the instant case. Defendant
further claimed he had an actual conflict with the public defender, and accused his former
counsel –deputy public defender Cummings – of “unprofessional[]” behavior, namely
attempting to deliver discovery to defendant by entrusting it to a sheriff’s department bus
driver. Defendant also submitted a memorandum of points and authorities consisting
entirely of a lengthy excerpt from Harris v. Superior Court of Alameda County (1977) 19
Cal.3d 786 (Harris), in which the Supreme Court held that a trial court erred in declining
to appoint specific counsel requested by indigent defendants affiliated with the
Symbionese Liberation Army.
At the hearing on defendant’s motion, the court and defendant engaged in the
following colloquy:
“Defendant Ponce: The Harris motion would be for appointment of a specific
attorney, a specific attorney because there’s a conflict.
“The Court: You need an attorney appointed?
“Defendant Ponce: Yeah. Appointment for counsel.
“The Court: I’m not going to let you pick him.
“Defendant Ponce: Well, see, because - -
“The Court: Who did you have before? What office was it, APD or PD?
“Defendant Ponce: It was a public defender.
“The Court: Okay. We have to go back to that office. I can not - - I don’t have the
discretion to appoint a specific attorney.
“Defendant Ponce: I understand that, your honor. But I do have a conflict of
interest with the public defender’s office, so I can not be represented by a public
defender.
“The Court: That’s for them to decide.
“Defendant Ponce: So how we go - -
“The Court: I have to refer it to the public defender’s office. If they declare a
conflict, then I have to appoint the alternate public defender’s office. I don’t appoint

3
specific people of that office. I appoint the office. It’s up to them to decide who in the
office is going to represent you. If the APD declares a conflict, then it goes to what we
call a panel of attorneys called ICDA, independent counsel.
“Defendant Ponce: I understand that.
“The Court: But that’s the third choice. I still have - - the first refusal is to the
public defender’s office, and they’ll decide if there’s a conflict or not. There may be a
conflict.
“Defendant Ponce: There is.
“[¶] . . . [¶]
“The Court: I don’t fully understand your declaration in regards to Mr. Edmund
[sic] Barrett. What are you saying about him?
“Defendant Ponce: He was my previous attorney on my other case in Department
M with Mr. - - Judge Ferrari.
“The Court: Yes.
“Defendant Ponce: Okay. Well, what I’m saying is I would like him appointed. I
was requesting if I could get him appointed.
“The Court: I see. Well, see, again, I cannot pick and choose.
“Defendant Ponce: The recordings on this case were used on the other case, so
he’s familiar with the evidence, and there is a conflict of interest with the - - see, the
whole conflict was on my other case. The alleged victim had been represented on - - I
guess on a previous conviction in Long Beach court by the public defenders. So the
public defender’s office on that case declared a conflict of interest based on that.
“The Court: They did?
“Defendant Ponce: Yes.
“The Court: On the other case. That’s where Mr. Barrett was appointed?
“Defendant Ponce: Yes.
“The Court: But you understand that, if it gets to the ICDA, that is after the public
defender’s office and after the APD’s office, alternate public defender’s office, declare
conflicts, and they may, then it’s up to the panel of attorneys to appoint somebody. They

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don’t go down the list and say, oh, Mr. Barrett represented him in the past, so let’s
appoint him. They don’t do it that way. It just goes in order on the ICDA panel. But we
haven’t gotten to that yet. I still have to make the referral to the public defender’s office.
They will check for conflicts in regards to this representing the victim in the past and so
forth. If they declare a conflict, then I will appoint the APD. That’s the order in which
the court goes. [¶] I’m not going to go to Mr. Barrett directly. You might get to the
ICDA list, but the chances of getting Mr. Barrett are long and far. I can’t control that list.
And just because he heard tapes that may be used in this case has nothing to do - - that
doesn’t move him up the list. That’s all I’m saying to you.
“Defendant Ponce: I understand that. That’s the whole point of the Harris motion.
“The Court: I have to go through the PD’s office and the APD’s office.
“[¶] . . . [¶]
“Defendant Ponce: I’m saying - - all right. I was under the impression it was up to
your decision. It was at your discretion.
“The Court: No. It is not.
“Defendant Ponce: Okay. Well, let’s go ahead and do that then. I’ll go ahead and
relinquish my pro per status and do that.”
The court withdrew defendant’s pro. per. status and appointed the public defender
to represent him. The public defender subsequently declared a conflict, as did the
alternate public defender. The court appointed Leonard Garber, an attorney from the
ICDA panel, to represent defendant. Defendant did not object to the appointment at any
point, and Garber represented defendant from June 28, 2012 forward, through and
including defendant’s May 2013 jury trial and July 2013 sentencing.
The jury returned a guilty verdict on the murder count and findings of true on the
gang and weapons allegations. Defendant admitted his priors and was sentenced to a
total of 81 years to life, with 836 days of precustody credit. He timely appealed.

5
 DISCUSSION
Defendant’s sole contention on appeal is that the trial court’s ruling that it had no
discretion to appoint attorney Barrett “was wrong, and its error requires reversal of the
judgment here.” We agree with the former point but not the latter.
“A criminal defendant’s right to counsel is guaranteed by both the federal
Constitution’s Sixth Amendment (applicable to the states through the Fourteenth
Amendment), and by the California Constitution article I, section 15.” (People v. Sapp
(2003) 31 Cal.4th 240, 256.) The Sixth Amendment gives “a defendant who does not
require appointed counsel [the right] to choose who will represent him.” (United States v.
Gonzalez-Lopez (2006) 548 U.S. 140, 144.) However, “the right to counsel of choice
does not extend to defendants who require counsel to be appointed for them.” (Id. at p.
151.) The same is true under the California Constitution, which “gives a criminal
defendant the right to an attorney who must competently represent the defendant” but
“does not give an indigent the right to select a court-appointed attorney.” (People v.
Jones (2004) 33 Cal.4th 234, 244; see also People v. Noriega (2010) 48 Cal.4th 517, 523
(Noriega).) In addition, the trial court has a statutory mandate to inform defendants of
their right to counsel and “assign” counsel to represent defendants who desire but cannot
afford counsel. (§ 987, subd. (a); see People v. Crayton (2002) 28 Cal.4th 346, 361.)
Section 987.2 sets forth the process by which the court is to assign or appoint
counsel for indigent defendants. Subdivision (e), which the parties agree is the pertinent
provision here, provides: “In a county of the first, second, or third class, the court shall
first utilize the services of the public defender to provide criminal defense services for
indigent defendants. In the event that the public defender is unavailable and the county
has created a second public defender and contracted with one or more responsible
attorneys or with a panel of attorneys to provide criminal defense services for indigent
defendants, and if the quality of representation provided by the second public defender is
comparable to the quality of representation provided by the public defender, the court
shall next utilize the services of the second public defender and then the services of the
county-contracted attorneys prior to assigning any other private counsel. Nothing in this

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subdivision shall be construed to require the appointment of counsel in any case in which
the counsel has a conflict of interest. In the interest of justice, a court may depart from
that portion of the procedure requiring appointment of the second public defender or a
county-contracted attorney after making a finding of good cause and stating the reasons
therefor on the record.”2
Although use of the words “shall” and “may” is not dispositive (People v.
Allen (2007) 42 Cal.4th 91, 101-102), “[u]nder ‘well-settled principle[s] of statutory
construction,’ we ‘ordinarily’ construe the word ‘may’ as permissive and the word ‘shall’
as mandatory, ‘particularly’ when a single statute uses both terms” (Tarrant Bell
Property, LLC v. Superior Court of Alameda County (2011) 51 Cal.4th 538, 542). Thus,
courts have interpreted section 987.2, subdivision (e) to require courts to “‘first utilize the
services of the public defender in providing criminal defense services for indigent
defendants, if the public defender is available to try the matter.’ (Williams v. Superior
Court (1996) 46 Cal.App.4th 320, 329.)” (Joshua P. v. Superior Court of Los Angeles
County (2014) 226 Cal.App.4th 957, 964.) Defendant suggests in his opening brief that
“[t]here is a question as to whether the court was correct when it held that it was required
to appoint the Public Defender in the first place, before considering appointing anyone
else,” but does not press the issue because “the Public Defender declared a conflict and
was not appointed to represent appellant.”
Instead, defendant argues “that the trial court was wrong when it informed Mr.
Ponce (1) that it had to appoint the Alternate Public Defender if the Public Defender
declared a conflict . . . and (2) that it had no discretion to appoint Mr. Barrett out of
sequential order from the ICDA panel . . . .” The plain language of section 978.2,
subdivision (e) supports this contention. The final sentence of the statute expressly vests
in the court the discretion to “depart from that portion of the procedure requiring
appointment of the second public defender or a county-contracted attorney after making a

2
Los Angeles County is a “count[y] of the first class.” (Gov. Code §§ 28020-
28022; § 987.2, subd. (j).)

7
finding of good cause and stating the reasons therefor on the record.” More importantly,
the California Supreme Court has long recognized that “[t]he appointment of counsel to
represent an indigent rests, as always, in the sound discretion of the trial court.” (Drumgo
v. Superior Court of Marin (1973) 8 Cal.3d 930, 934-935; see also Harris, supra, 19
Cal.3d 786 at p. 795; People v. Chavez (1980) 26 Cal.3d 334, 345-346 (Chavez); People
v. Cole (2004) 33 Cal.4th 1158, 1185-1186; People v. Alexander (2010) 49 Cal.4th 846,
871-872 (Alexander).) The court’s adherence to a rigid appointment process, simply
because “[t]hat’s the order in which the court goes,” was not an appropriate exercise of
this discretion. “[I]n this context, as in other contexts, the boundaries of ‘judicial
discretion’ cannot be embraced by an ‘absolute rule’ but must be judged by the
circumstances of the particular case.” (Chavez, supra, 26 Cal.3d at p. 345.) “The
exercise of the court’s discretion in the appointment of counsel should not have been
restricted by an inflexible rule, but rather should have rested upon consideration of the
particular facts and interests involved in the case before it.” (Id. at p. 346.)
The People suggest that the court was not permitted to deviate from the standard
appointment procedure because defendant failed to demonstrate any “just cause”
warranting such a departure. In other words, they suggest that the court implicitly
declined to “mak[e] a finding of good cause” and therefore could not “depart from that
portion of the procedure requiring appointment of the second public defender or a
county-contracted attorney.” (§ 987.2, subd. (e).) This contention might have more
traction if the court had considered the substance of defendant’s request before telling
him, “I don’t have the discretion to appoint a specific attorney,” and, somewhat
contradictorily, “I’m not going to let you pick him.”3 It is clear from the transcript that
the court’s ruling was predicated not upon an evaluation of “good cause” but rather upon
its belief that it lacked both the discretion and inclination to deviate from the standard

3
The record indicates that defendant, who was pro. per. at the time, brought a hard
copy of his handwritten motion to the hearing. The court paused the proceedings to read
the motion and give defendant an opportunity to file it with the court. We emphasize,
however, that the court did not take this step until it had already told defendant several
times and in no uncertain terms that it would not be appointing Barrett.
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order. On the record before us, we cannot conclude that the court made a reasoned
assessment of “the circumstances of the particular case.” (Chavez, supra, 26 Cal.3d at p.
345.)
At the same time, we are not persuaded by defendant’s contention that “there
clearly was good cause for the court to appoint Mr. Barrett.” “In deciding whether a
particular attorney should be appointed to represent an indigent defendant, a trial court
considers subjective factors such as a defendant’s preference for, and trust and
confidence in, that attorney, as well as objective factors such as the attorney’s special
familiarity with the case and any efficiencies of time and expense the attorney’s
appointment would create.” (Alexander, supra, 49 Cal.4th at p. 871.) Defendant claims
that his “written and oral requests to appoint Barrett satisfied the subjective part of the
analysis. And, more importantly, the objective part was more than amply fulfilled by the
fact that Barrett, by virtue of his representation of appellant at the prior case, was familiar
with the prosecution’s key evidence in the present proceeding, namely, the recordings of
the in-jail conversations.” We disagree.
Defendant’s subjective expression of a preference for a particular attorney “is not
a determinative factor requiring the appointment of that attorney – even in combination
with other relevant factors such as the subject attorney’s competence and availability.”
(Harris, supra, 19 Cal.3d at p. 796.) Even if we were to assume that defendant’s request
for Barrett constituted a sufficiently weighty subjective consideration, a point about
which we are skeptical in light of the considerable “depth of the relationship between the
petitioners and their requested counsel in Harris” (People v. Cole, supra, 33 Cal.4th at p.
1187), the strength of the objective considerations in this case is minimal. Barrett’s
limited familiarity with some of the evidence – in the context of a different, unrelated
case involving criminal threats, burglary, and assault with a deadly weapon – is not
compelling. People v. Cole is instructive in this regard. There, the Supreme Court found
no abuse of discretion in the court’s denial of requested counsel where the preferred
attorney had represented the defendant for 11 months in the same case and had traveled
across the country to interview and develop a rapport with potential witnesses in New

9
Hampshire and Massachusetts. (People v. Cole, supra, 33 Cal.4th at pp. 1179, 1187.)
The investment of that attorney’s time, and his concomitant facility with the evidence in
the case, substantially exceeds Barrett’s alleged familiarity here.
The same is true of the attorneys in Harris, a case on which defendant principally
relies. In Harris, which involved very “specific and unusual facts” (People v. Lancaster
(2007) 41 Cal.4th 50, 70, fn. 5), defendants faced charges of aggravated kidnapping,
robbery, assault with a deadly weapon, and false imprisonment stemming from their
involvement with the Symbionese Liberation Army (Harris, supra, 19 Cal.3d at p. 789).
The attorneys as to whom defendants sought appointment shared certain “political and
social perceptions” with their clients (Id. at p. 793), represented them in related criminal
proceedings also concerning their alleged activities as members of the Symbionese
Liberation Army, and were endorsed by the attorneys ultimately appointed. (Id. at pp.
789-791.) The Supreme Court concluded that the trial court abused its discretion in not
appointing requested counsel. Specifically, the trial court failed to consider that the prior
representation “not only established a close working relationship between [defendants]
and [the requested attorneys] but also served to provide those attorneys with an extensive
background in various factual and legal matters which may well become relevant in the
instant proceeding – a background which any other attorney appointed to the case would
necessarily be called upon to acquire.” (Id. at p. 798.) It would require “expenditure of
considerable energy and time . . . to bring their level of familiarity with those facts and
issues to a point comparable with that already reached by [requested counsel].” (Id. at p.
799.) Here, in contrast, defendant stated only that Barrett “ha[d] listened to the tape
recordings in evidence in [the previous] case,” and therefore was “familiar with the
evidence” in the instant case. Defendant did not assert that the tapes were complex,
extensive, or otherwise so critical that Barrett’s knowledge of them was significant. In
short, the objective considerations defendant presented the court were not “of the
consequence” of those in Harris. (Harris, supra, 19 Cal.3d at p. 799.)
Nonetheless, because the court failed to exercise its discretion to make such an
assessment itself, “we must determine whether that error warrants reversal of defendant’s

10
conviction.” (Chavez, 26 Cal.3d at p. 348.) Defendant acknowledges that “[t]here are
several [Supreme Court] cases that appear to hold that when a trial court errs by failing to
appoint counsel requested by a defendant, the error does not require reversal per se but is
subject to harmless error inquiry.” That line of cases includes Chavez, supra, 26 Cal.3d
at pp. 348-349, People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [characterizing Chavez
as holding that “error in refusing representation by attorney of choice . . . compel[s]
reversal after judgment only upon a showing of prejudice”], and Noriega, supra, 48
Cal.4th at p. 525 [Chavez “stated that the error did not require automatic reversal of the
defendant’s conviction”]. We find these cases persuasive and controlling.4 We
accordingly consider whether defendant has demonstrated a reasonable probability that
the trial court’s erroneous denial of his motion for the appointment of attorney Barrett
altered the outcome of the trial. (Noriega, supra, 48 Cal.4th 517, at p. 525 [citing People
v. Watson (1956) 46 Cal.2d 818].)
The People correctly observe that defendant has not attempted to demonstrate
prejudice resulting from the court’s refusal to appoint Barrett. On that basis alone, we are
constrained to conclude that defendant is not entitled to reversal of his conviction (see
Noriega, supra, 48 Cal.4th at p. 525; cf. id. at p. 522-523 [“Because defendant here has
not even attempted to show that the performance by his replacement counsel, Morreale,
was in any way deficient, he has not established a violation of his federal constitutional

4
Defendant asserts that “the State Supreme Court has also indicated the question is
unresolved.” He supports this assertion with citation to Alexander, supra, 49 Cal.4th at p.
873, where the Supreme Court stated, “Because we conclude there was no abuse of
discretion, we do not consider whether defendant was prejudiced by Kopple’s absence
from the case or whether any error in removing her would have been reversible without
showing prejudice.” We are not convinced this dictum demonstrates that the question is
unresolved. The Supreme Court was discussing the removal of a defendant’s desired
attorney, not her appointment, and in any event has held that demonstration of prejudice
is required even in that situation, which “poses a greater potential threat to the
defendant’s constitutional right to counsel than does the refusal to appoint an attorney
requested by the defendant. . . .” (People v. Jones, supra, 33 Cal.4th at p. 244.) (See
Noriega, supra, 48 Cal.4th at pp. 520, 525.)

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right to the effective assistance of counsel.”]); “it is not enough for an appellant to
identify an error in the proceedings in the trial court without affirmatively establishing
‘how the error caused a miscarriage of justice.’ [Citations.]” (People v. Singh (2015)
234 Cal.App.4th 1319, 1330-1331.) Even if defendant had attempted to demonstrate
prejudice, however, we are not convinced he would be able to do so in light of the
overwhelming evidence demonstrating his guilt beyond a reasonable doubt.5
We also reject defendant’s contentions that reversal per se is required on grounds
not yet considered by the Supreme Court. First, he contends that the failure to exercise
discretion “has often been ruled per se reversible” and should be in this context. We
disagree. Contrary to defendant’s contention, Chavez, which we find closely analogous
to the instant case, did “involve[ ] a trial court’s failure or refusal to exercise discretion or
a court’s making a decision on the basis of a misunderstanding of the law.” In Chavez, as
here, the trial court appointed an attorney other than that requested by defendant without
considering the reasons for defendant’s request. (See Chavez, supra, 26 Cal.3d at p.
341.) The Supreme Court concluded, as we do here, that the trial court “improperly

5
The People’s case against defendant included the following: (1) police interviews
with defendant’s fellow gang member in which he described defendant as a high-ranking
“shot caller” for the Westside Longos and reported twice overhearing defendant and a
lower-ranked accomplice discussing their plans to shoot Richard Vera for “slipping,” or
being under the influence while he was supposed to be “on point” for the gang; (2)
recorded interview statements from that same witness indicating that the accomplice
warned him to stay away from the area on the day of the shooting and placing both
defendant and the accomplice at the scene of the crime approximately 40-50 minutes
before the shooting; (3) forensic evidence linking the accomplice to the shooting and
confirming the eyewitness’s testimony about items he saw the accomplice carrying on the
day of the murder; (4) jailhouse recordings of defendant describing his plans to “dome”
Vera and boasting about the shooting, including a graphic description in which defendant
compared the appearance of Vera, who was shot in the head, to that of a watermelon
splitting open; (5) additional jailhouse recordings in which defendant stated that the
accomplice, who did the actual shooting, had been “going crazy” and “chasing ghosts”
since that day; (6) evidence that the accomplice committed suicide in 2010; and (7)
testimony from a gang expert explaining why the murder of a fellow Westside Longo
would have benefitted the gang. The jury deliberated for only 30 minutes before
returning its verdict.

12
adhered to a fixed policy of appointing its ‘own’ counsel in every case.” (Id. at p. 346.)
The court nonetheless considered whether the error was prejudicial and concluded it was
not. (Id. at p. 348.) We are obligated to undertake the same analysis and reach the same
conclusion – for largely the same reasons as Chavez. For here, as there, “neither
defendant nor . . . his counsel ever suggested during pretrial proceedings, at trial, or in
the course of the posttrial sentencing hearing, that the defense was hampered in any way
by the failure to [ ] appoint [requested] counsel.” (Ibid.) Moreover, defendant never
contended that his appointed attorney “was anything but fully competent, or that counsel
was given inadequate opportunity to prepare the defense: from all indications, defendant
was fully satisfied with his representation.” (Ibid.)
Defendant’s second argument for per se reversal is equally unavailing. Defendant
argues that treating defendants who have retained counsel differently from indigent
defendants “who have shown that the court should have appointed counsel of their
choice” is a violation of equal protection of the laws. This contention is flawed in two
fundamental ways. First, the United States Supreme Court explicitly has held “the right
to counsel of choice does not extend to defendants who require counsel to be appointed
for them.” (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 151.) Second, even if
defendant were able to overcome that hurdle, he has not persuaded us that the court
should have appointed counsel of his choice. Unlike Harris, in which the Supreme Court
concluded that the trial court properly could have exercised its discretion to appoint
requested counsel and abused its discretion in declining to do so (Harris, supra, 19
Cal.3d at pp. 796, fn. 9, 799), the facts supporting Barrett’s appointment were far from
compelling. As discussed above, the objective considerations such as “the attorney’s
special familiarity with the case and any efficiencies of time and expense the attorney’s
appointment would create” (Alexander, supra, 49 Cal.4th at p. 871), are weak at best.
Nothing in the record compelled the appointment of attorney Barrett.

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 DISPOSITION
The judgment of the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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