People v. Pearson

IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, v. KEVIN DARNELL PEARSON, Defendant and Appellant. S212159 Los Angeles County Superior Court NA039436 August 17, 2026 Justice Corrigan authored the opinion of the Court, in which Chief Justice Guerrero and Justices Liu, Kruger, Groban, Evans, and Jackson* concurred. * Presiding Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.  PEOPLE v. PEARSON S212159 Opinion of the Court by Corrigan, J. In 2003, a jury convicted defendant Kevin Darnell Pearson of the first degree murder of Penny Sigler with special circumstances.1 It also found him guilty of: torture; robbery; rape; sexual penetration by foreign object; and kidnapping to commit rape and torture, along with other sex offenses; and found he used a deadly weapon.2 It found the special circumstances true based on his commission of the related crimes. It also found true the allegation that the movement of the victim during the kidnapping substantially increased the risk of harm.3 It set the penalty at death. Pearson’s convictions were affirmed but the penalty judgment was reversed because the trial court improperly excused a prospective juror for her views on capital punishment. (See People v. Pearson (2012) 53 Cal.4th 306, 327–333 (Pearson I).)4 We remanded solely for a 1 See Penal Code sections 187, 189, subdivision (a), 190.2, subdivision (a)(17), (a)(18). 2 See Penal Code sections 206, 209, subdivision (b)(1), 211, 212.5, subdivision (c), 261, subdivision (a)(2), 264.1, subdivision (a), 289, subdivision (a)(1), 667.61, subdivision (e)(3), 12022, subdivision (b)(1); 12022.3. 3 See Penal Code section 667.61, subdivision (d)(2). 4 We also reversed the personal deadly weapon use allegations for insufficient evidence and the torture-murder special circumstance allegation for instructional error, and concluded the trial court improperly sentenced defendant for 1  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. new penalty trial and resentencing. (Pearson I, at p. 334.) A penalty phase retrial resulted in a second death verdict in 2013. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm. I. FACTS5 A. Prosecution Evidence After 11:00 p.m. on December 29, 1998, Sigler left her Long Beach home to go to the store. A friend had given her a food stamp booklet containing six dollars of stamps and asked her to buy him soda and a candy bar. The following day, Sigler’s naked body was found on a freeway embankment in Long Beach. Her body was partially covered in mulch, 10 to 15 feet from the bottom of the embankment, below a drainage ditch. The area could only be accessed from the street by scaling a six-foot chain link fence supported by wooden stakes. A substantial amount of blood was found in the drainage ditch and on the fence. Police recovered one of Sigler’s shoes, a broken wooden stake, and a food stamp book cover. An autopsy recorded 114 wounds and 25 broken bones. Sigler died from traumatic injuries to her head and neck, including multiple skull, face, and neck fractures and numerous lacerations. One ear was partially torn off, consistent with being struck with a wooden stake. Injuries to her neck and petechia in her eyes were consistent with someone standing on her neck with a boot. Her genital and anal regions were bruised and lacerated. Her vaginal tissue was torn, consistent with both forcible rape and forcible rape in concert based on a single act of rape. (See Pearson I, supra, 53 Cal.4th at pp. 318–319, 322–324, 333.) 5 The facts as recited here were presented to the jury during defendant’s penalty retrial. 2  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. penetration by a wooden stake. A wooden splinter was found embedded four to five inches deep at the back of her vagina. Bruising and lacerations around her abdomen and thighs were consistent with being struck by a wooden stake. There were bite marks on her breast and thigh. Arm lacerations were consistent with defensive wounds and scraping against the top of a chain link fence. All of her injuries were inflicted before her death. Monte Gmur lived next door to defendant in Long Beach. Gmur had a music studio in his house and regularly invited acquaintances to use it. He considered defendant a friend and saw him almost daily. One night between Christmas and New Year’s Eve in 1998, defendant, Warren Hardy, and Hardy’s brother Jamelle Armstrong, along with their friend Chris, came to Gmur’s house around 6:00 p.m. They drank for three to four hours, becoming “boisterous” and “stupid drunk” but able to walk normally. Defendant was wearing brown Dickies pants, a khaki shirt, and work boots. Hardy wore a belted black jacket and a black leather hat. At some point, defendant asked Gmur if they could use a spare room to “put Chris on the block,” which Gmur understood to mean they would beat Chris to initiate him into their gang. When Gmur refused, the group went outside and returned after a few minutes. Gmur later heard Hardy on the phone saying, “Chris is cool,” and they would “call him Playboy.” At around 1:00 a.m. the following morning, defendant, Hardy, and Armstrong arrived at the Los Angeles home of Tiyarie Felix. Felix was Hardy’s girlfriend and the mother of their child. Defendant carried a duffle bag, which he took with him when he left. 3  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. Later that day, Gmur heard about police activity in the area and asked defendant on the phone what they had done. Defendant replied they had “killed a white woman” but Gmur did not believe him. The next day, defendant spoke to Gmur in person and recounted the following version of events. Defendant, Hardy, Armstrong, and Chris left Gmur’s house and walked to the train station, where Chris left the group. Thereafter, defendant saw Hardy across the street punching a woman. Hardy asked the woman if she had any money, which she denied. Hardy went through her pockets and found cash. Hardy threw the woman onto the ground and began to beat her with a stake and stomp on her. The three men removed her clothes and put them in a bag. One of her shoes went missing. They lifted her body over a fence, threw her belongings into a dumpster and caught a bus to Los Angeles. After several unsuccessful attempts, Gmur eventually contacted police on January 5, 1999, and reported defendant’s admissions. Defendant was arrested the next day. He initially denied any involvement in Sigler’s murder but admitted his presence when detectives told him he had been linked to the crime. His descriptions of events continued to evolve. Defendant next told detectives that he, Hardy, and Armstrong left Chris at the train station and were walking to catch a bus when defendant heard someone scream. He looked back and saw Hardy punching a woman. She spun away and ran toward a fence, whereupon Hardy picked up a stake and hit her in the back. The woman climbed over the fence and the three men followed. Hardy dragged her to a drainage ditch, ripped off her clothing, unzipped his pants, and demanded oral copulation. Defendant told Hardy he could get AIDS because the woman was bleeding. Hardy repeatedly hit the woman in the head and upper body 4  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. with the stake, then thrust it into her vagina, penetrating six to eight inches. Armstrong eventually convinced Hardy to stop. Defendant and Armstrong took off their shirts, wrapped them around the woman’s wrists and legs, and moved her body further up the embankment. They put her clothing into a bag and walked toward the bus stop. They threw the stake away in a field and boarded a bus to Los Angeles where they threw the bag into a trash can. They walked to Felix’s house and spent the night. Defendant also gave two taped statements which were played for the jury. In his first recorded statement, defendant added that, after the victim fell over the fence, Hardy chased, stomped, and punched her and beat her with the stake. The stake was about two feet long and an inch and a half wide. Defendant left his bloody shirt at Felix’s house. He did not see anyone bite the victim and denied that he or Armstrong tried to have sex with her. After the interview, he took the detectives to the crime scene and the locations he described. Neither the clothes nor the stake were recovered. Hardy and Armstrong were arrested and interviewed.6 Detectives returned to defendant, saying his statements 6 They were tried separately for special circumstances murder, and both were sentenced to death. We affirmed Hardy’s judgment of death in People v. Hardy (2018) 5 Cal.5th 56 and the United States Supreme Court denied certiorari. (See Hardy v. California (2019) 586 U.S. 1116.) We reversed Armstrong’s death judgment for improper excusal of prospective jurors based on their death penalty views and remanded for further proceedings. (See People v. Armstrong (2019) 6 Cal.5th 735, 749–764.) The high court denied Armstrong’s petition for a writ of certiorari. (See Armstrong v. California (2019) 589 U.S. 1044.) 5  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. conflicted with those of Hardy and Armstrong. Defendant again modified his recitation of events. In his new version, he elaborated that, after Chris left the group, defendant, Hardy, and Armstrong were walking down the street yelling, “Merry Christmas, Happy New Year,” when a woman across the street responded in kind. They walked over and started a conversation. At some point, Hardy asked her if she had money and defendant began going through her pockets. When she tried to escape, defendant and Armstrong pulled her to the ground and ripped off her clothing, as Hardy continued searching for money. Hardy and Armstrong began stomping on the woman, and Hardy said that they “have to finish this.” Defendant and Armstrong threw the woman over the fence into a drainage ditch. The three men followed and Armstrong dragged the victim to an area behind a business. Defendant raped her while Armstrong held her down. Hardy beat her with a wooden stake while defendant and Armstrong stomped on her. Defendant was wearing steel-toed work boots. Hardy and Armstrong took turns shoving the stake into the victim’s vagina. Defendant and Armstrong used their shirts to drag her up the embankment, collected her clothes, and left. They found six dollars worth of food stamps, which Hardy later spent at a market in Los Angeles. The recording of this latest statement was also played for the jury. In 1999, Janisha Williams lived in Long Beach with her mother, Rosemary Furtado. Williams was a friend who had known defendant for about 10 years. About a week before his arrest, he came to speak with Furtado and described how he had kicked a woman six times in the head and helped move her body. After defendant’s arrest, he and Williams exchanged letters in which he acknowledged that he had kicked the victim in the 6  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. head six times and helped move her body and that “now he has to pay.” Williams testified she and defendant were members of the Capone Thug Soldiers (CTS) gang, which had about 30 members. Defendant was known as “Scrappy” and had a hot temper. The gang engaged in violent conduct and would initiate new members by “jumping them in.” Williams had seen defendant hit people on bicycles with sticks and kick them. Furtado had known defendant nine to 12 years and considered him like a son. Sometime before his arrest, defendant came to speak to her, but she was busy. He wrote to her from jail admitting he had kicked the victim four or five times. He wrote that the victim had been raped but he did not remember who had done so. Defendant claimed Hardy and Armstrong beat the victim and he kicked her after she was unconscious. Furtado had considered defendant a “very sweet” person but modified her views after his convictions. Steven Lam, Furtado’s husband and Williams’s stepfather, overheard some of defendant’s conversation with Furtado. Defendant was crying and said he had done “something that he shouldn’t have.” After his arrest, defendant wrote Furtado a letter wherein he admitted kicking the victim six times in the head but denied killing her. Lam had known defendant for seven years and believed he was a good person. His opinion changed after defendant was convicted in the earlier trial. In January 1999, police recovered several items from Felix’s home, including Dickies pants and some boots that Gmur identified as defendant’s, a tan shirt, and Hardy’s black leather jacket and hat. Blood stains on the clothing and boots matched Sigler’s DNA. Armstrong’s blood and semen were found on 7  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. another shirt. A store clerk identified Hardy as a customer who used some food stamps around New Year’s Day 1999. The food stamps matched the booklet cover recovered at the crime scene. In February 2002, while defendant was awaiting trial, ten razor blades were found under the mattress in his jail cell. A six by 24 inch piece of plastic was found under his bunk. Officers also recovered magazines, rolled up newspapers, 60 pieces of cloth, and a bottle of bleach. All were items of contraband that could be fashioned into weapons. Sigler’s son testified he was in ninth grade when his mother was murdered. He dropped out of high school after her death, and the murder still affected him both emotionally and physically. B. Defense Evidence Defendant presented his retrial defense through three witnesses: Delisa King, Eugeniuz Bland, and James McGee. In 1990, when defendant was about 13 years old, he came to live with King, Bland, and their six children. King knew defendant’s mother Collette and had visited her house, which was unkempt and unsanitary. Defendant attended high school in Long Beach and had joined the ROTC but did not graduate. He and King’s son Jarod were members of CTS, which King described as a rap group, not a gang. Defendant joined the Job Corps. He moved from King’s home around 1995 and lived with Jarod. King trusted defendant with her children and still loved him. She believed the crimes were uncharacteristic for him. Bland went to high school with defendant’s mother and considered defendant a part of his family. He knew CTS to be a rap group and was not aware that its members engaged in criminal activity. He did not know defendant to be violent and 8  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. thought the crimes were out of character for him. Although he considered the crimes to be “pretty horrendous” and thought defendant should be punished, Bland still loved defendant and his opinion of him had not changed. James McGee grew up with King and Bland and often saw defendant at their home. Defendant joined in family activities and played cards with McGee. Defendant never acted violently and seemed passive. He thought defendant was a good person and considered the crimes unlike him. His convictions did not change McGee’s mind about defendant’s character. The parties stipulated that defendant had no prior convictions before this case. II. DISCUSSION A. Penalty Retrial Issues 1. Reappointment of Original Trial Counsel for the Retrial Defendant makes various challenges to the reappointment of his original trial counsel to represent him at the penalty retrial.7 For the reasons discussed below, we reject his claims. a. Background Upon remand following reversal of the initial death judgment, defendant first appeared before Judge Tomson T. Ong at the Long Beach courthouse on March 21, 2012. He was present with attorney Nancy Sperber, who had represented him at his first trial before Judge Ong. Judge Ong granted Sperber’s request to continue the matter to April 5, 2012, to allow further 7 Defendant claims violations of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as “their state counterparts.” 9  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. discussions with the district attorney’s office about whether it would retry the penalty phase. Meanwhile, on March 27, 2012, Sperber e-mailed Conrad Petermann,8 who had represented defendant on appeal, to inform him of her reappointment as defense counsel. Petermann left Sperber a phone message explaining that he had filed a habeas petition on defendant’s behalf alleging Sperber had rendered ineffective assistance of counsel at the first trial. In light of the habeas petition, Petermann urged Sperber to declare a conflict of interest and withdraw as defense counsel for the retrial. The next day, March 28, 2012, Sperber sent a letter to Judge Patricia M. Schnegg, explaining that she had appeared on March 21 before Judge Ong “in order to continue my representation of the defendant, pending a decision as to that issue from the Capital Case Committee.” Sperber indicated that Judge Ong’s clerk relayed “that [her] continuing representation had been approved” and she had confirmed this with a Mr. Keo Senesombath, apparently an employee of the superior court. After hearing from Petermann about the pending habeas petition, Sperber “immediately informed Mr. Senesombath of 8 After original briefing was completed in this case, we granted Petermann’s petition to withdraw as appellate and habeas counsel for health reasons. Eric S. Multhaup was appointed to replace him. (See People v. Pearson, S212159, Supreme Ct. Mins., Dec. 12, 2018.) Petermann’s original habeas petition including allegations of ineffective assistance was ultimately denied. Claims relating to the first penalty phase were denied as moot in light of the reversal and remand on direct appeal. (In re Pearson, S191872, Supreme Ct. Mins., July 12, 2017.) Defendant filed a second habeas petition in 2016 which is currently pending before us. (See In re Pearson, S235715, matter pending.) 10  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. these facts, and again, he confirmed that I should continue to represent Mr. Pearson, and that I should prepare my proposal for consideration.” Sperber stated that she was willing to represent defendant for a set rate. An order dated April 2, 2012, stated, “The Judicial Panel, having reviewed Counsel’s motion submitted pursuant to the Memorandum of Understanding Re: Central District Capital Case Appointment,” reappointed Sperber “as counsel to represent [Pearson] on the re-trial of the penalty phase.” On April 5, 2012, defendant was present when Sperber informed the court that she had spoken to appellate counsel Petermann, who expressed his belief she should not be representing defendant on remand because he had filed a habeas corpus petition on defendant’s behalf alleging her ineffective assistance at the first trial. Sperber told the court: “I informed the judges downtown of [the habeas petition]. It was my understanding that they were served with the petition and they were aware of it.” She understood that the Capital Case Committee had reviewed the matter and “felt that I should, nevertheless, be re-appointed and be representing Mr. Pearson. I have a copy of that order. It looks like it was signed on April 2nd of this year.” The court expressed surprise at the ineffective assistance claims in light of Sperber’s “outstanding service at trial.” Sperber indicated she would raise the issue with “the judges downtown. I will let them know of the situation.” Judge Ong noted for the record that he “is not involved in the appointment process.” The prosecution elected to retry the penalty phase. On August 15, 2012, appellate counsel Petermann filed a motion to remove Sperber as defendant’s trial counsel. The motion recounted arguments made in his habeas petition, which 11  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. alleged various constitutional violations, including ineffective assistance of counsel, and asserted that Sperber had “committed numerous errors both during the guilt and penalty phases of the trial.” Petermann argued that Sperber labored under a conflict of interest and should be relieved as counsel for the retrial. When Petermann appeared for hearing on his motion on August 30, 2012, the court indicated it would continue the matter to allow Petermann to present additional supporting information. The court then asked defendant about his wishes and whether he had authorized Petermann to file “the motion.” Defendant said that he had. In light of defendant’s response, the court stated it would “treat [Petermann’s filing] as a Marsden motion” (People v. Marsden (1970) 2 Cal.3d 118) and scheduled a Marsden hearing for September 13, 2012. It told Petermann that his “appearance is not necessary.” Petermann objected but acquiesced and left the courtroom. The trial court thereafter held an unrelated in camera hearing.9 Also, on August 30, following a recess, Sperber told the court that she and her investigator conferred with defendant, who said he only gave Petermann permission to file the motion “because [defendant] thought he was protecting my bar license by doing that, by saying he authorized it.” The following colloquy between the court and defendant ensued: THE COURT: Mr. Petermann has filed papers in this courtroom, okay. The person with legal standing to file 9 At the hearing, Sperber and a representative from the public defender’s office discussed her access to case files from the prior trial. 12  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. papers [here] is your trial lawyer, okay. . . . [¶] That’s Ms. Sperber and that’s why I asked you, since [Petermann’s] filing papers, I want to know if you authorized him and [t]old him to file those papers in this courtroom. . . . [¶] Did you give him permission to file those papers in this courtroom? THE DEFENDANT: I — once again, I did give him permission because he is my appellate attorney. THE COURT: No, no, no, no. Did you give him permission to file it in trial court? He has permission to file [the habeas petition] in the Supreme Court. Did you give him permission to file in my court, trial court, the [removal] motion that he filed? He filed a motion to ask Ms. Sperber to be excused as a lawyer in this case. Did you give him that permission to file that motion? THE DEFENDANT: No, no. THE COURT: All right. Are you sure? THE DEFENDANT: I — THE COURT: Positive. Right. I want to make sure. THE DEFENDANT: I’m trying to — okay. You saying [sic] he can file it in — THE COURT: In the Supreme Court. He is the lawyer. Okay. He’s your appellate lawyer. In the trial court, Ms. Sperber is the lawyer. Your appellate lawyer has filed a motion, okay, in the trial court, okay, on your behalf, okay, when he’s not that attorney of record. So my question to you is, did you give him permission to file that motion in the trial court? THE DEFENDANT: No. 13  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. The court also asked defendant if, when he said earlier that he had authorized Petermann to file the removal motion, he did so “because you thought you were protecting Ms. Sperber’s interests.” Defendant replied: “Let me clarify. What I was saying to Ms. Sperber is that Mr. Petermann came to see me at the county jail. He was explaining everything that was going on with the appeals process and that usually the appellate — appellate cases, all trial attorneys are referred to as incompetent attorneys when they file any paperwork. That’s what I was letting Ms. Sperber know that, I gave him permission to file that. But when you asked did I say it, I thought that you was talking about for the higher court, not for the trial.” Sperber urged that Petermann was interfering with her attorney-client relationship with defendant, and the court signed an order limiting jail visitations to Sperber and her investigator. Sperber later clarified that, under the jail procedure adopted, she was to be called for authorization if another attorney tried to visit defendant. Before the scheduled Marsden hearing on September 13, Petermann filed a supplemental brief in the trial court, enlarging upon the allegations in the habeas petition. He asserted that Sperber had been ineffective at the first trial by failing to call “mental state experts” at the guilt phase and to pursue various mitigation themes at the penalty phase. Petermann maintained that Sperber now had a conflict of interest because she “may face the dilemma of pursuing her client’s multiple defenses that by implication require the admission of serious omissions in the previous preparation of her client’s defense.” On September 13, Sperber moved to strike Petermann’s motion because defendant did not authorize him to file it. The 14  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. court asked defendant directly if he was “now withdrawing this motion to remove Ms. Sperber from his case,” to which he responded, “Yes.” The court struck Petermann’s unauthorized motion. b. Right to Presence When Appointment was Made Defendant first contends he had a statutory and constitutional due process right to be present when Sperber was initially reappointed as trial counsel by the Capital Case Committee. The claim lacks merit. Defendants have the right to appointed counsel if they cannot afford to engage one. (See Gideon v. Wainwright (1963) 372 U.S. 335, 341–345; U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In capital cases, that right is codified in Penal Code10 section 987, subdivision (b), which provides in part that “[i]f the defendant is unable to employ counsel, the court shall assign counsel to defend them.” As the Attorney General observes, neither that provision nor section 987.05, cited by defendant, provides any right for a defendant to be present when the initial appointment is made. “Section 987.05 states that a trial court shall appoint an attorney who represents, on the record, that he or she will be ready to proceed with the preliminary hearing or trial within the statutory time or, in unusual circumstances, by a reasonable time as determined by the court.” (People v. Ng (2022) 13 Cal.5th 448, 504.) The statute deals most directly with ensuring that appointed counsel will have sufficient time to prepare for presenting defendant’s case and that he or she will be ready and able to do so within a reasonable time. It does not provide that 10 Subsequent statutory references are to the Penal Code unless noted. 15  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. defendant’s presence is required when the appointment is made.11 “ ‘A criminal defendant accused of a felony has the constitutional right to be present at every critical stage of the trial . . . .’ [Citations.] ‘A critical stage of the trial is one in which a defendant’s “ ‘absence might frustrate the fairness of the proceedings’ [citation], or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his 11 Section 987.05 states in full: “In assigning defense counsel in felony cases, whether it is the public defender or private counsel, the court shall only assign counsel who represents, on the record, that he or she will be ready to proceed with the preliminary hearing or trial, as the case may be, within the time provisions prescribed in this code for preliminary hearings and trials, except in those unusual cases where the court finds that, due to the nature of the case, counsel cannot reasonably be expected to be ready within the prescribed period if he or she were to begin preparing the case forthwith and continue to make diligent and constant efforts to be ready. In the case where the time of preparation for preliminary hearing or trial is deemed greater than the statutory time, the court shall set a reasonable time period for preparation. In making this determination, the court shall not consider counsel’s convenience, counsel’s calendar conflicts, or counsel’s other business. The court may allow counsel a reasonable time to become familiar with the case in order to determine whether he or she can be ready. In cases where counsel, after making representations that he or she will be ready for preliminary examination or trial, and without good cause is not ready on the date set, the court may relieve counsel from the case and may impose sanctions upon counsel, including, but not limited to, finding the assigned counsel in contempt of court, imposing a fine, or denying any public funds as compensation for counsel’s services. Both the prosecuting attorney and defense counsel shall have a right to present evidence and argument as to a reasonable length of time for preparation and on any reasons why counsel could not be prepared in the set time.” 16  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. opportunity to defend against the charge’ [citation].” ’ [Citation.] A defendant ‘has no right to be present [at] routine procedural discussions that could not affect the outcome of the trial.’ [Citation.] ‘Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding.’ [Citation.] We review de novo a defendant’s claim that he was entitled to be present during a chambers conference.” (People v. Oyler (2025) 17 Cal.5th 756, 795 (Oyler).) “The burden is on a defendant to show that the ‘ “absence prejudiced his case or denied him a fair and impartial trial.” ’ ” (People v. Caro (2019) 7 Cal.5th 463, 479.) Defendant cites no case holding that the initial appointment of counsel is a critical stage of trial requiring his presence. “[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 151; People v. Hernandez (2012) 53 Cal.4th 1095, 1106.) As defendant had no constitutional right to have any particular counsel appointed, including someone other than Sperber, it seems doubtful that he nevertheless had a constitutional right to be present when that appointment was made. Although defendant argues he was deprived “of his right to make an informed decision regarding the appointment of conflict free counsel,” he does not explain how his presence, at the time of Sperber’s appointment, would have facilitated such decisionmaking. Indeed, any claim of prejudice appears belied by the circumstance that defendant later expressly withdrew Petermann’s motion to remove Sperber as his trial counsel. 17  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. To be sure, a defendant has a right to be present at a proceeding to determine whether counsel actually has a conflict of interest or otherwise should be removed. (See People v. Perry (2006) 38 Cal.4th 302, 313.) Sperber’s initial appointment by the Committee was not such a proceeding but one more akin to a “routine procedural matter for which the defendant’s attendance is not required.” (Id. at p. 314; see Oyler, supra, 17 Cal.5th at p. 795.) Further, defendant was not deprived of his right to make an informed decision as to counsel or denied the opportunity to litigate the issue. Once counsel has been appointed, if a defendant has an objection or reservation about the lawyer who has been provided, he may personally seek counsel’s replacement through the Marsden process. (See Marsden, supra, 2 Cal.3d at pp. 123–126; see also People v. Smith (1993) 6 Cal.4th 684, 690–697 (Smith).) We turn now to the court’s handling of that process here. c. Marsden Hearing/Conflict of Interest A defendant is entitled to seek substitution of appointed counsel “whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (Smith, supra, 6 Cal.4th 684, 696; see People v. Carter (2024) 15 Cal.5th 1092, 1099.) “Essentially, a claim of conflict of interest constitutes a form of ineffective assistance of counsel.” (People v. Perez (2018) 4 Cal.5th 421, 435.) 18  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. On appeal here, defendant has taken conflicting positions regarding his claim of error. In his opening brief, defendant argued the trial court erred by treating the conflict of interest issue presented by Petermann’s motion as a Marsden motion. He urged the motion was initiated by Petermann, not himself. Instead, he suggested that Petermann’s motion “was and is premised on published legal authority, technical principals [sic], and supporting facts well beyond [defendant’s] knowledge, understanding, or cognizance.” In his supplemental opening brief, however, defendant changed his approach to contend that Marsden actually does apply, and the court erred by not conducting an adequate hearing. He argues Petermann’s habeas petition, which alleged ineffective assistance of counsel at the first trial, “triggered the trial duty to inquire and to hold a Marsden-type hearing.” Initially, to the extent defendant claims the court should have conducted a Marsden hearing, the assertion fails. “If a defendant who asserts inadequate representation seeks to discharge appointed counsel and obtain a substitute attorney, the court must allow the defendant to explain the basis for this contention and to present specific instances of counsel’s inadequate performance.” (People v. Wilson (2023) 14 Cal.5th 839, 863–864 (Wilson).) However, legal authority provides that “a trial court is required to hold a Marsden hearing only when the defendant requests one — ‘the trial court is not required to conduct a Marsden hearing on its own motion’ [citation] or in response to ‘criticism of appointed counsel that has been levied by a nonparty[.]’ ” (Oyler, supra, 17 Cal.5th at p. 797.) We have clarified that Marsden “was intended to afford protection to the defendant’s right to counsel as guaranteed by the Sixth Amendment, and the constitutional right to counsel is 19  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. personal to the defendant and ordinarily cannot be asserted vicariously.” (People v. Martinez (2009) 47 Cal.4th 399, 419 (Martinez).) Further, “[w]e would risk encouraging interference with the attorney-client relationship were we to hold that a trial court must conduct a Marsden hearing when a third party complains concerning the representation received by a defendant.” (Id. at p. 420.) Defendant did not seek to remove Ms. Sperber as his counsel and clarified that he had not authorized Petermann to do so on his behalf. However, in light of his claims here, we turn to the facts reflecting what occurred in the trial court. Following Petermann’s presentation, and defendant’s initial indication that he had authorized Petermann to make it, the court said it would “treat it as a Marsden motion.” It informed Petermann that he need not remain and scheduled a Marsden hearing for a later date. Petermann was never appointed or retained to represent defendant in the trial court. He did not seek such an appointment, nor did defendant request it. After a recess following Petermann’s departure from the courtroom, the trial court, in defendant’s presence, directly addressed the potential for conflict and clarified defendant’s understanding and wishes in that regard. Sperber informed the court that she had spoken to defendant during the recess and he said he had authorized Petermann’s motion to remove Sperber because he believed he was protecting Sperber’s bar license by doing so and that he did not, in fact, want Sperber removed as counsel. Defendant clarified that Petermann, during a jail visit, “explain[ed] everything that was going on with the appeals process and that usually . . . appellate cases, all trial attorneys are referred to as incompetent attorneys when they file any paperwork.” Defendant had given Petermann permission “to 20  PEOPLE v. PEARSON Opinion of the Court by Corrigan, J. file that” but when the court had previously asked if defendant had authorized Petermann’s motion, defendant “thought that [the court] was talking about for the higher court, not for the trial.” On the date of the scheduled Marsden hearing, Sperber reminded the court that defendant had “indicated that he did not authorize Mr. Petermann to file these motions” to remove Sperber as counsel and “Mr. Pearson has never expressed to me a desire to [have Sperber] be relieved as counsel.” The court asked defendant: “Mr. Pearson, there has been paperwork filed by Mr. Petermann to try to remove Ms. Sperber from this case. The first question that I have is are you now withdrawing this motion to remove Ms. Sperber from this case?” Defendant responded he was, and the trial court struck Petermann’s motion. As the record reflects, defendant was well aware of Petermann’s opinion as to Sperber’s handling of the first trial and Petermann’s view that she should not continue to represent him on retrial. Upon questioning from the trial court, defendant personally spoke to his knowledge of the circumstances and clarified he did not wish to remove Sperber as his trial counsel and had not intended to authorize Petermann to seek her removal. At no t