Cases Rejecting Ineffective Assistance Claims
Category > Cases Rejecting Ineffective Assistance Claims
Defendant was not prejudiced by counsel's failure to object to the prosecutor's misstatement that fear by someone other than the victim would satisfy the force or fear element of robbery.The prosecutor misstated the law during closing argument by suggesting the fear of the victim's girlfriend was sufficient to satisfy the force or fear element of the robbery of the victim. However, defendant was not prejudiced by defense counsel's failure to object to the misstatement, where the prosecutor later urged the jury find the felony-murder special circumstance because defendant formed the intent to rob the victim before entering the bedroom, and defense counsel argued that the jury must find a robbery of the victim, not his girlfriend, in order to find the robbery-murder special circumstance.id: 16915
The prosecutor violated defendant's Massiah rights and likely committed misconduct by interrogating defendant after the complaint was filed, but the failure to object forfeited the issue on appeal.The prosecutor violated defendant's Sixth Amendment rights under Massiah by interrogating her concerning the subject matter of a felony complaint previously filed against her. However, defendant's failure to object at trial precluded appellate review of the issue. Moreover, while the interrogation may be viewed as prosecutorial misconduct, it was not so egregious as to justify outright dismissal of the charges. Finally, reversal of the conviction was not required due to the ineffective assistance of trial counsel in failing to object to the use of the statement at trial because it was impossible to conclude on the face of the record that trial counsel lacked a tactical reason for failing to object.id: 18853
Defense counsel's failure to object to character evidence under section 1103 was a mistake but not prejudicial in light of the evidence. Defendant was convicted of resisting an officer. Evidence of the officer's purportedly violent conduct before defendant
resisted arrest did not open the door for the prosecution to offer evidence of defendant's violent character. Trial counsel erred by failing to object to the admissibility of the evidence pursuant to Evidence Code section 1103. While the objection would have been meritorious, the failure to object was not prejudicial under Strickland due to the overwhelming evidence of guilt and the defendant's destroyed credibility.id: 19492
Defense counsel's failure to object to the prosecutor's misstatements regarding murder and manslaughter did not constitute ineffective assistance since the victim's calling
defendant a "faggot" was not sufficiently provocative to require a manslaughter instruction.The prosecutor committed misconduct by misstating the law on
murder and voluntary manslaughter. The misstatements included a claim that voluntary manslaughter was a "legal fiction" and sudden quarrel or heat of passion could form the basis for
second degree murder. Since defense counsel did not object to the improper comments, defendant forfeited any claim of prosecutorial misconduct. Defense counsel was not ineffective
in failing to object because the evidence did not support a manslaughter instruction as the victim's calling defendant a "jota" or "faggot" was insufficient to cause an average person to lose reason and judgment.id: 18987
Defense counsel's testimony regarding defendant's nickname, which contradicted defendant's testimony was not prejudicial.Defendant argued he was denied effective assistance as a result of defense counsel's decision to testify. He argued that counsel sabotaged his defense by testifying that defendant had been called El Chile as a child, whereas defendant, in his own testimony, had denied that he was called El Chile. However, there was no reasonable probability that the testimony prejudiced defendant's case as the issue of whether or not defendant was known as El Chile was of minor consequence at trial in light of defendant's detailed confession to both murders.id: 12346
Alleged incompetence of counsel in failing to investigate the jailhouse informants was not prejudicial given the strength of the prosecution's case.Special referee found that defense counsel's assertedly deficient investigation resulted not only in the absence of evidence concerning the informants' false and misleading testimony with the regard to inducements, but also in the failure to discover evidence of one informant's membership in the Aryan Brotherhood. Assuming the evidence would have been discovered by a reasonable investigation and would have been admissible as additional impeachment material at trial, counsel's alleged failing was still not prejudicial given the strength of the prosection's case based on the evidence other than the testimony of the jailhouse informants.id: 12299
Counsel's failure to present mitigating evidence at the penalty phase was not prejudicial where its presentation would have elicited damaging rebuttal and there was no reasonable probability of a different result.An independent referee determined trial counsel was ineffective for failing to present available mitigating evidence at the penalty phase of defendant's capital trial. The Supreme Court determined that assuming counsel was deficient reversal was not required due to the lack of prejudice. While available mitigating background evidence might have evoked sympathy there was no connection between that evidence and the charged crimes. Moreover, the mitigating evidence would have elicited damaging impeachment and rebuttal evidence, with an inevitable adverse effect on the actual defense strategy at trial. There was no reasonable probability the result would have been different had the mitigating evidence been presented.id: 12334
Defense counsel's failure to investigate and present mitigating evidence of abuse and drug use as well as other penalty phase deficiencies was not prejudicial.Defendant was sentenced to death following his capital murder trial. In a habeas corpus petition defendant argued trial counsel was deficient for: 1) failing to investigate and discover mitigating evidence was a result of his ignorance of the types of evidence a jury might consider mitigating, 2) failing to present evidence that defendant was abused as a child and was a member of a dysfunctional family, 3) failing to prepare which left him unaware of the scope of the aggravating evidence, and 4) delivering an unfocused closing argument where he undercut his client's case by telling the jury defendant's mental and emotional problems were not mitigating. Assuming defense counsel was incompetent for these reasons it was not reasonably probable a jury would have reached a more favorable penalty phase verdict had counsel represented him with greater competence.id: 12344
Counsel's failure to investigate a mental defense at the capital trial was harmless where he could later show no evidence supporting a defense.There was evidence that defendant used drugs the night of the crime and that he adopted a persona of "Tony" during his confessions. These circumstances suggest a possible mental defense. Other evidence including two psychiatric reports prepared on the issue of competency to stand trial contraindicated a mental defense. Moreover, petitioner informed counsel he feigned a mental defense when he assumed the persona of "Tony." The question is close on the issue of counsel's ineffective assistance in failing to investigate a mental defense at the capital trial. However, the failure to do so was not prejudicial where the only possible mental defenses could have been 1) insanity, and 2) lack of an intent to kill, and the evidentiary hearing produced no credible evidence of either. id: 17168
Counsel failed to properly investigate the capital case in certain respects but the deficiencies were not prejudicial.Following petitioner's capital conviction a referee found defense counsel's investigation of the case was inadequate in that he failed to obtain a prosecution witness's school records showing her low IQ and failed to have the police interview tapes transcribed. The latter would have shown the witness revealed petitioner's confession to her only after police threatened her with an arrest. However, petitioner did not show the ineffectiveness of counsel since petitioner was not prejudiced by the alleged deficiencies of counsel.id: 17385
Defense counsel's failure to investigate avenues to corroborate a possible third party culpability defense was deficient but harmless where he could not show a more favorable outcome was reasonably probable.Defendant was convicted of murdering two people and sentenced to death. The key issue in the case was identity and one witness testified to seeing one victim arguing with another person on the night of the killing. Because defense counsel failed to investigate the available avenues most likely to corroborate the witness's testimony and failed to provide any viable tactical justification for the omission, his performance was deficient. However, the error was not prejudicial where he failed to show that an adequate investigation would have been sufficient to raise a reasonable probability of a more favorable outcome.id: 18943
Updated 3/4/2024Trial counsel was not ineffective in failing to advise the defendant of two weak potential defenses before recommending a pleaDefendant was a physical therapist who pled guilty to sexual penetration by a foreign object (Penal Code289(a)(1)) of a person incapable of giving legal consent because of a mental disability and lewd conduct by a caretaker under section 288. He moved to withdraw his plea arguing that defense counsel rendered ineffective assistance by failing to inform him of the defenses of consent, and the lack of “caretaker” status. However, a reasonable attorney could have concluded the jury would not have consented to the alleged penetration, and would also have concluded that defendant was indeed a caretaker for purposes of section 288. id: 27506
Updated 2/22/2024Defendant failed to show IAC where the record did not disclose why counsel failed to call a percipient witness to testify.Defendant argued trial counsel rendered ineffective assistance by failing to call a percipient witness. However, the record did not disclose counsel’s reasons and it’s possible there was a tactical justification for not calling the witness. id: 27018
Updated 2/4/2024Trial counsel was not ineffective for failing to advise defendant about a potential SVP commitment after serving his prison term.Trial counsel did not render ineffective assistance by failing to advise defendant before the plea that he could be subject to a lifetime commitment as a sexually violent predator after service of his prison term because the SVP commitment is a collateral consequence of a guilty plea.id: 27578
Updated 2/3/2024Trial counsel did not render IAC by failing to object to the qualifications of a SART nurse regarding the genesis of sex-related injuries. Defendant argued that trial counsel rendered ineffective assistance by not objecting to the SART nurse’s expert qualifications regarding the genesis of sex-related injuries. However, the record showed the expert’s opinion was based on her special knowledge, training, skill, experience and education on a topic beyond common experience. id: 27746
Trial courts should inquire into defendant’s financial circumstances before imposing a sexual offender fine, but trial counsel was not ineffective for failing to object.Defendant’s convictions of Penal Code sections 228, subd. (a) and 288.3 triggered the imposition of sex offender fines for each count pursuant to section 290.3. He argued on appeal that trial counsel rendered ineffective assistance by failing to object to the imposition of fines based upon his inability to pay. However, the record does not show why counsel failed to object, and there may have been valid reasons. Going forward, trial courts should inquire sua sponte into a defendant’s financial circumstances before imposing a sexual offender fine.id: 25934
Conceding guilt as to felony murder during closing argument did not establish IAC on the record, although the issue could be relitigated in collateral proceedings where counsel could explain his choice.During closing argument, defense counsel conceded defendant was guilty of felony murder, but argued the jury should reject the felony murder special circumstance. Counsel’s decision did not amount to ineffective assistance of counsel on the record absent an explanation by counsel, and defendant could later litigate the claim in collateral proceedings where counsel could explain the tactical choice.id: 25562
Counsel’s failure to make Sanchez objection during MDO proceedings did not establish IAC where there was no showing that counsel lacked a legitimate tactical reason for not objecting.Defendant argued that his trial counsel rendered ineffective assistance of counsel by failing to raise a Sanchez objection (People v. Sanchez (2016) 63 Cal.4th 665) to case-specific hearsay expert testimony offered at his mentally disordered offender hearing. Although Sanchez applies in MDO proceedings to the extent it clarifies the admissibility of expert testimony under the Evidence Code, defendant failed to show that his attorney would have had no legitimate tactical reason for failing to make a Sanchez objection.id: 25359
Supreme Court says conceding guilt in death penalty case without defendant's consent is not automatically ineffective assistance.Defendant confessed to a brutal murder, and there was overwhelming evidence of his guilt. The state sought the death penalty and refused to engage in plea negotiations. After conducting an investigation, defendant's attorney concluded that defendant's guilt was not subject to reasonable dispute. At the guilt phase of trial, defense counsel conceded defendant's guilt and urged the jury to spare his life. Counsel tried to explain this strategy to defendant, but defendant neither approved nor protested the strategy. During the penalty phase, counsel presented evidence of defendant's troubled upbringing and mental health problems, but the jury recommended the death penalty. The state courts held that counsel could not concede defendant's guilt without his affirmative, explicit consent. The Supreme Court reversed and held that counsel's failure to obtain defendant's express consent to a strategy of conceding guilt in a capital case does not automatically render counsel's representation ineffective.id: 20122
Defense counsel did not render ineffective assistance by improperly stating defendant admitted to being present at the shooting. Defense counsel did not render ineffective assistance during opening statement by referencing a partial confession defendant made to police that the prosecution did not intend to introduce into evidence. She stopped when the matter was brought her attention, she later reminded the jurors that they should only consider the evidence presented at trial, and the statement that defendant admitted to being present was not a critical concession.id: 23773
Evidence showed defendant committed escape by force where he cut off his GPS monitoring device, mailed it to the sheriff and then flew to Pennsylvania.While on home detention, defendant cut off his global positioning system (GPS) electronic monitoring device, mailed it to the sheriff, and flew to Pennsylvania. This conduct constituted escape by force in violation of Penal Code section 4532, subd.(b)(2). Trial counsel did not render ineffective assistance of counsel by recommending a guilty plea and not challenging the legality of the charge. id: 23881
Trial counsel did not render ineffective assistance by failing to seek an instruction telling jurors not to consider a witness’s guilty plea as evidence of defendant’s guilt.Defendants argued trial counsel rendered ineffective assistance by failing to request a limiting instruction telling jurors not to rely on a witness’s guilty plea as evidence of their guilt. However, the jury was instructed not to consider a witness’s conviction against defendants. Assuming counsel erred by not seeking to apply the concept to a guilty plea, any error was harmless given the strength of that witness’s testimony - if the jurors believed the witness, convictions were inevitable. id: 23961
Defense counsel did not render ineffective assistance by failing to properly address the conflict created by the prosecutor in threatening members of the defense team where it was not reasonably probable that more action would have led to a better result.The prosecutor precipitated a serious conflict of interest between defendant and defense counsel by threatening to prosecute the defense investigator and perhaps defense counsel for reasons the parties would later agree were groundless. Defense counsel failed to do all it could to remedy this problem when it occurred. However, the record did not establish prejudice for purposes of the ineffective assistance of counsel claim where it was not reasonably probable that defendant would have received a better result absent the error in properly addressing the potential conflict created by the prosecutor.id: 23984
Defense counsel was not ineffective for failing to challenge conditions of mandatory supervision where such a challenge might have resulted in more time in custody. Defendant argued the trial court erred by imposing mandatory supervision conditions requiring him to submit to psychiatric counseling, and release confidential mental health information. However, defendant forfeited the claims by failing to object to the imposition of either condition. Defense counsel did not render ineffective assistance by failing to object in light of the valid tactical reason that there was little to be gained here by arguing those points and much to be lost given his exposure to more time in custody.id: 23993
Trial counsel was not ineffective for failing to seek a discount of the portion of the restitution award compensating the victim for future lost wages to account for its present day value.Defendant argued his trial counsel rendered ineffective assistance by failing to seek a discount of the portion of the restitution award compensating the victim for future lost wages to account for its present-day value. However, it was possible that trial counsel had a rational tactical ground for not seeking a time value discount, and the court therefore rejected the claim. id: 23608
Trial counsel was not ineffective for failing to present the Stoll expert.Trial counsel did not render ineffective assistance by failing to present a Stoll expert to conclude defendant did not have the characteristics of a child molester. Counsel engaged an expert and provided a brief report to the court, but ultimately decided not to call the witness. Defendant failed to establish that counsel lacked a tactical reason for not presenting the witness.id: 23189
Defense counsel was not ineffective for failing to argue for a lesser sentence within the agreed range of the plea bargain.Defendant argued that counsel rendered ineffective assistance by failing to argue for a lesser sentence within the agreed range of the plea bargain. However, the aggravating facts in the case were serious and there were no apparent mitigating facts. Defendant therefore failed to establish prejudice.id: 23349
Defendant could not establish prejudice for an IAC claim against trial counsel at the penalty phase of his capital trial based on the failure to investigate mental health defenses and present better social history evidence.Defendant argued trial counsel rendered ineffective assistance at the penalty phase of his capital trial by not retaining a mental health expert to investigate the possibility of neuropsychological deficits, and by failing to present other available evidence of defendant’s social history. However, defendant could not meet the prejudice prong of the ineffective assistance of counsel test since it was not reasonably probable that he would have received a better result if counsel had investigated and presented the evidence in question. id: 23555
There was no ineffective assistance of counsel in failing to interview the victim who did not recant until after the defendant entered her guilty plea.Defendant argued the trial court erred by denying her motion to withdraw the guilty plea because trial counsel rendered ineffective assistance by failing to discover before the guilty plea that the domestic violence victim had recanted his statement to the police. However, the record shows the victim’s undisclosed change of heart was not known until after she entered the guilty plea.id: 22711
Trial counsel did not render ineffective assistance at the penalty phase by failing to present evidence that defendant was sexually abused as a child where defendant denied that fact before trial to counsel and a psychiatrist. The capital defendant alleged in his habeas corpus petition that trial counsel rendered ineffective assistance by failing to present evidence of his sexual abuse as a child. However, defendant failed to show how trial counsel could reasonably have discovered the abuse as counsel asked defendant about his background, but defendant never mentioned abuse, saying instead that he had a normal background. Defendant made similar statements to the psychiatrist. Defendant mentioned the abuse for the first time 17 year after his arrest for murder. Moreover, there was no reasonable probability that, but for trial counsel’s alleged failings, the penalty phase result would have been different.id: 22295
Appellate counsel did not render ineffective assistance in failing to request a recall of a remittitur where the request would have been denied. Shortly after the court issued an opinion in defendant’s appeal, the Supreme Court published People v. Trujillo (2006) 40 Cal.4th 165, which challenged the law and found probation report admissions were inadmissible to prove a strike prior. Defendant argued appellate counsel rendered ineffective assistance by failing to request that the remittitur be recalled. The issue involved a dispute about whether the potential availability of petitioning for a writ of certiorari should affect the retroactivity of a state Supreme Court decision that does not involve a federal constitutional right. The issue was not addressed, as the request to recall would have been denied anyway since the appellate opinion from the 1992 conviction could have been used to prove the strike.id: 22233
Appellate counsel did not render ineffective assistance by failing to challenge a settled issue that would be overturned shortly after the appeal.Appellate counsel did not render ineffective assistance by failing to argue the 1992 probation report admission was inadmissible to prove a prior strike. At the same time, the case that would reach that conclusion (People v. Trujillo (2006) 40 Cal.4th 165) was pending before the Supreme Court. However, appellate counsel could not be expected to argue against the prevailing law.id: 22232
Trial counsel did not render ineffective assistance by failing to object under Apprendi to the trial court’s determination that the 1992 evading conviction was a strike in that serious bodily injury qualified as great bodily injury. Defendant’s alleged strike prior was a 1992 conviction for evading police. To constitute a strike, the prosecution had to show it caused serious bodily injury. The trial court properly made that determination and trial counsel did not render ineffective assistance of counsel by failing to argue the serious bodily injury issue (including whether serious bodily injury was to equivalent of great bodily injury) should have been resolved by the jury.id: 22231
Trial counsel did not render ineffective assistance in failing to request a pinpoint instruction on defendant’s cultural defense to the charges of mayhem and torture of his son. Defendant was convicted of torture and mayhem of his 12 year-old son for not listening to him. Trial counsel was not ineffective in failing to request a jury instruction directing the jury to consider whether evidence of defendant’s cultural background raised a reasonable doubt as to whether he had the requisite intent to inflict torture and mayhem on his son when disciplining him. The instruction he proposed on appeal would have constituted an improper opinion on the evidence. id: 21826
Claim that the statements were coerced did not preserve a challenge as to the adequacy of the Miranda warnings and there was no IAC by failing to object where the defendant represented herself at the retrial. Defendant argued the trial court erred by admitting statements she made to the police because the Miranda warnings were defective. At her first trial where she was represented by counsel, she argued the statements were coerced but did not challenge the adequacy of the warnings. She represented herself following a mistrial, and again argued coercion but did not challenge the warnings. This was not sufficient to preserve the issue of defective Miranda warnings for the appeal. Because she represented herself at the second trial she could not claim ineffective assistance of counsel in failing to make a proper objection. Even though retained counsel failed to object at the first trial, the court at the second trial permitted new arguments.id: 21939
Counsel was not ineffective in conceding there were no changed circumstances following the SVP defendant’s petition for release.After being recommitted as a sexually violent predator, defendant filed a petition for release in pro per. Counsel was then appointed. The trial court did not subsequently abuse its discretion in dismissing the petition where defendant did not oppose the dismissal motion and conceded there were no changed circumstances at the hearing. Moreover, counsel was not ineffective in not opposing the motion where there were no circumstances to support the conclusion that defendant’s condition had so changed that he was no longer dangerous.id: 21404
Trial counsel was not ineffective for failing to object to the sexual assault victim’s testimony that she was raised Catholic.Defendant, a school district police officer, was convicted of sexual assault of a 21 year-old woman. He argued trial counsel was ineffective for failing to object to the victim’s testimony that she had been raised a Catholic. However, the testimony was not admitted to bolster the victim’s testimony, but rather, to help explain why a grown woman in the victim’s situation would cooperate with the officer. Her Catholic upbringing was relevant and admissible on the issue of consent and whether she was under duress.id: 21523
Defendant's failure to show expert testimony would have been helpful prevented him from successfully challenging trial counsel's competence in failing to produce an eyewitness identification expert.Defendant argued that trial counsel rendered ineffective assistance by failing to present expert testimony on eyewitness identification at trial. However, because defendant did not show that trial counsel failed to consult an expert or that such an expert would have been able to provide favorable testimony, he did not show trial counsel was deficient in failing to present expert eyewitness identification testimony.id: 21628
Supreme Court says counsel not ineffective for abandoning doomed defense.Under California law, when a defendant pleads both not guilty and not guilty by reason of insanity, the court must hold a bifurcated trial, with guilt determined at the first part and the viability of defendant’s insanity plea at the second. Defendant pleaded not guilty and not guilty by reason of insanity to murder. At the first part of his trial, he presented medical evidence that he was insane in an effort to show that he was incapable of the premeditation necessary for first-degree murder. The jury nevertheless convicted defendant of first-degree murder. Prior to the second phase of the trial, defendant’s parents, who were to testify as to defendant’s struggle with mental illness, refused to testify. For that reason, and because the jury had already rejected the medical evidence that defendant was insane when he committed the murder, defendant, on the advice of counsel, abandoned his insanity plea before the second part of the trial. The state courts rejected defendant’s claim that his counsel was ineffective, but in federal habeas proceedings, the Ninth Circuit held that counsel rendered ineffective assistance by recommending that defendant drop his insanity defense before the second phase of the trial. In a unanimous decision by Justice Thomas, the Supreme Court held that the Ninth Circuit erred in finding that counsel was ineffective because there was nothing to lose by pursuing an insanity defense prior to the second phase of the trial. The Court held that even under a de novo standard counsel did not act ineffectively by recommending the withdrawal of a defense that he reasonably believed was doomed to fail.id: 21410
Supreme Court says that counsel’s participation in guilty plea by phone does not violate established rights. When defendant pleaded no contest to reckless
homicide in state court, his attorney was not physically present in the courtroom and instead
participated by speaker phone. During the hearing, the court gave defendant the opportunity to
speak privately with his attorney over the phone if he had questions about his plea, and defendant
said he was satisfied with his legal representation. In federal habeas proceedings, the Seventh
Circuit held that counsel’s absence from the courtroom deprived defendant of his right to
counsel. In a per curiam summary reversal, the Supreme Court held that none of its prior
decisions had held that counsel’s participation in a plea hearing by phone was equivalent to the
complete denial of counsel. Because a federal court may grant habeas relief only based on
“clearly established Federal law” as determined by the Supreme Court, the Court held that the
Seventh Circuit erred in finding that counsel’s absence constituted a complete denial of counsel.id: 21351
Counsel did not render ineffective assistance in failing to object to the admission of the confession of a confederate as counsel sought to minimize defendant’s involvement in relation to that of the others.Defendant argued the trial court erred by admitting evidence that a co-participant confessed to participating in the murder and attempted robberies. However, trial counsel failed to object to the testimony of the interrogating officer, and may have had a valid reason for not objecting. The evidence against defendant was strong, and trial counsel reasonably focused on minimizing defendant’s role and shifting blame onto the others.id: 21195
Trial counsel was not ineffective by failing to request pinpoint instructions on unintentional temporary possession of the gun in the car.Defendant was convicted of being a felon in possession of a firearm under Penal Code section 12021, subd.(a)(1) and carrying a concealed firearm in a vehicle under section 12025, subd. (a)(3). He argued that trial counsel rendered ineffective assistance of counsel by failing to request a pinpoint instruction suggesting that the unintentional temporary possession of the gun would constitute a defense. However, contrary to defendant's claim, the evidence in support of such a theory was not uncontradicted. Moreover, counsel could reasonably have concluded that a specific instruction would not help the defense. A specific instruction highlighting the defense theory would include the limits of such a defense which were unfavorable to defendant. It was reasonable for defense counsel to argue a common sense rather than legalistic interpretation of possession.id: 16780
Trial counsel did not render ineffective assistance by referring to defendant as "strange" and "paranoid."Defendant argued trial counsel rendered ineffective assistance by referring to him as "strange" and "paranoid" during closing argument. However, read in context defense counsel's comments were reasonable attempts to counter the prosecutor's arguments and to help the jurors accept defendant's testimony as credible.id: 20256
Supreme Court says defendant's instruction not to offer mitigating evidence barred ineffective assistance finding.At his death penalty sentencing hearing, defendant refused to allow his counsel to present testimony from hi sex-wife and mother as mitigating evidence, he interrupted counsel when counsel tried to proffer other evidence, and he told the trial judge that he did not wish to present mitigating evidence and asked the court to impose the death penalty. The Ninth Circuit held that despite defendant's instructions, counsel's failure to investigate defendant's past history constituted ineffective of counsel and that a more thorough investigation would have revealed substantial mitigating evidence. The Supreme Court held that defendant's instruction to counsel not to offer mitigating evidence meant that counsel's failure to investigate potential mitigating evidence cannot have been prejudicial and therefore could not constitute ineffective assistance.id: 20194
Counsel did not render ineffective assistance by failing to pursue a "taint hearing" to determine the complaining witness's competency and credibility before trial.Defendant was convicted of several counts of child molest. He argued counsel rendered ineffective assistance by failing to pursue a "taint hearing" (a procedure used in New Jersey) to
determine the complaining witness's competency and credibility prior to trial. However, there is no evidence of procedures which would trigger the need for a taint hearing and the victim could be challenged by way of cross-examination. Any error in failing to pursue such a hearing was harmless where cross-examination of the witnesses did not produce any evidence of overly suggestive or coercive interviewing of the victim.id: 19559
Defendant did not show trial counsel disregarded a clearly expressed desire to present a guilt phase defense.Trial counsel presented no defense at the guilt phase of defendant's capital trial. However, in habeas corpus proceedings defendant did not sustain his burden of showing that his trial attorney disregarded a clearly expressed desire to present a guilt phase defense under People v. Frierson (1985) 39 Cal.3d 803. Defendant was dissatisfied with counsel's approach and counsel was aware of this. However, defendant expressed dissatisfaction clearly and openly with the strength of the prosecution's case, the speed of the proceedings and his predicament - not with his attorney's failure to offer a guilt phase defense he later identified.id: 19371
Trial counsel was not ineffective in failing to investigate an alibi where he had admitted guilt and said he would manufacture an alibi.Trial counsel did not render ineffective assistance of counsel by failing to investigate an alibi defense where the defendant had repeatedly admitted his involvement in the killing, and told his codefendant (in a conversation overheard by police) that he would manufacture a false alibi.
id: 18950
Defense counsel did not render ineffective assistance by failing to request severance of the street terrorism charge and bifurcation of the gang enhancements.Defendant argued trial counsel rendered ineffective assistance by failing to request severance of the street terrorism count and bifurcation of the gang enhancements. However, its unlikely a severance would have been granted. The strong cases here were the robbery and attempted murder, and the gang evidence was relatively benign in comparison. Defendant would not benefitted from the severance. Moreover, bifurcation of the gang enhancements was even more unlikely as virtually all of the gang evidence supporting the enhancements would have been admissible on the street terrorism charge.id: 18776
Advisory counsel did not render ineffective assistance by missing court sessions or failing to keep confidential the appointment of a defense pathologist.Defendant, who was granted pro per status at his capital trial, argued advisory counsel rendered ineffective assistance of counsel. First, advisory counsel's absence during portions of the trial did not constitute ineffective assistance because the court had made clear that defendant was in charge of the case and there is no requirement that advisory counsel be present for each session. Next, counsel was not ineffective in failing to keep confidential the appointment of a pathologist who was ultimately called by the prosecution in rebuttal with devastating results. It was the defendant's choice to subpoena the doctor against counsel's advice, and it was that subpoena that brought the doctor to court and resulted in the prosecutor's interview with him.id: 18695
Counsel did not render ineffective assistance at the penalty phase by failing to present mitigating evidence and making a brief closing argument.Defense counsel did not render ineffective assistance at the penalty phase by failing to present evidence that he was beaten by his parents, because the reason for the abuse was that defendant had molested his young sister, and counsel wanted to keep that information from the jury. Moreover, counsel's brief closing argument (three transcript pages) did not constitute the ineffective assistance where he summarized the key points.id: 18560
Defense counsel was not ineffective for failing to object to an amendment in the information.Defendant argued trial counsel rendered ineffective assistance by failing to object to the prosecutor's motion to amend the information to include a charge of petty theft with a prior under Penal Code section 666, without first proving the prior offense at the preliminary hearing. However, section 666 does not establish a separate substantive offense, but rather is a discretionary sentencing statute which allows the trial court to punish petty theft as a felony or misdemeanor. Moreover, the complaint charging robbery put defendant on notice that he could be convicted of the lesser included offense of petty theft, and it enumerated two petty theft priors for other purposes. Finally, defense counsel may have had a reasonable tactical reason not to object - as the only benefit he could gain would be delay through a dismissal and the refiling of charges.
id: 18100
Counsel was not ineffective for failing to move to exclude the child's testimony due to her inability to recall certain details after the court determined she was competent to testify.Defendant was convicted of molesting his three-year old stepdaughter. The court determined the witness was competent to testify. Defendant argued trial counsel rendered ineffective assistance in failing to move to exclude the minor's testimony on the ground that she was unable to perceive and recall the events as to which she testified. However, while the minor did not recall her interview or statements she made to anyone about the molestation, she did testify about the incident and provided certain details. While the details varied from the other evidence it was for the jury to decide whether the minor's recollections were accurate.id: 17920
Counsel not ineffective in dog killing case for allegedly failing to request a mistrial or for failing to have defendant testify. Following a minor traffic accident, the defendant reached into the other driver's car, grabbed her dog and threw it into a busy roadway. After reaching the safety of the other side of the roadway, the dog panicked and ran back into traffic attempting to reach it's owner; it was fatally struck by a car. Defendant was convicted of felony cruelty to an animal and sentenced to prison for the aggravated term of three years. Defendant argued that when, on the last day of the prosecution's case in chief, it was revealed that the People would present evidence of a prior dog killing by defendant, his counsel was ineffective for not moving for mistrial and also for failing to have defendant testify. The court found that the judge's tentative ruling on the admissibility of the prior conduct and the granting of a one week continuance for the defense to prepare for such evidence would have made any mistrial motion futile. It further found that defendant's taking the stand would have inevitably only damaged the defense even further. Accordingly, counsel was not ineffective.
id: 17456
Witness's testimony was not coerced by the prosecutor where the only assurance she received was that she would be separated from defendant in the jail.Defendant argued defense counsel was incompetent for failing to object to a witness's testimony on the ground that it was coerced by the prosecutor. In return for the witness's testimony, the prosecutor had agreed only to keep her separated from the defendant in the jail. The promise was not conditioned on her testifying in a certain way. There was no inherent compulsion in the agreement. The witness simply received the assurance the prosecutor would attempt to protect the witness, an assurance any victim would reasonably expect. Defense counsel was not ineffective for failing to object to the testimony.id: 17306
New counsel was not ineffective in failing to file a brief on behalf of a fugitive following the conviction because counsel was not hired by defendant and defendant's father had no authority to sign a substitution of counsel form.Defendant became a fugitive prior to his sentencing and he was sentenced in absentia. After a notice of appeal was filed, new counsel (Lindner) informed the court he had been retained by defendant's family to represent the defendant on appeal. Lindner could not file a substitution of counsel form because of defendant's fugitive status. Counsel was then told by an unidentified court clerk that a fugitive cannot appeal. No brief was filed and the appeal was dismissed. Upon defendant's extradition he sought to have the appeal reinstated. Contrary to defendant's claim, Lindner did not provide ineffective assistance of counsel since he was never engaged by defendant and there was no evidence defendant's father had authority to authorize Lindner's representation. The appeal was reinstated despite the rejection of the IAC claim.id: 17237
Counsel was not ineffective in withdrawing an objection to the admission of evidence of a prior rape at the guilt phase where counsel believed the evidence would be devastating if heard for the first time at the penalty phase.Defendant argued the trial court erred by admitting in the guilt phase, evidence of a prior rape. Defense counsel expressly withdrew his objection to the introduction of the evidence. Counsel's decision to withdraw the objection did not amount to the ineffective assistance of counsel in light of his concern of the negative impact the evidence would have on the jury if it were heard by them for the first time in the penalty phase.id: 17242
Counsel's advice to waive jury was not uniformed and ineffective despite the failure to investigate a mental defense where the judge was reputable, the jury pool was conservative, the defense involved medical malpractice and the facts were horrific.Trial counsel did not render ineffective assistance of counsel by advising defendant to waive jury at the capital trial. Defendant argued counsel's failure to investigate a mental defense or present mitigating evidence rendered the advice to waive jury uninformed and hence ineffective. However, counsel had valid tactical reasons for advising defendant to waive jury. The reasons include the fact of a highly regarded judge, a questionable jury pool, the nature of the proffered medical malpractice defense and the horrific facts of the crime. No additional investigation would have affected the advice to waive jury.id: 17169
Counsel was not ineffective for failing to impeach a guard about a locked gate policy in the area of the killing where evidence showed the enforcement of the policy was lax at the time of the killing.Defendant was convicted of the murder of a fellow inmate and sentenced to death. He argued he received ineffective assistance of counsel because trial counsel failed to impeach a correctional officer who had earlier said the area in which the killing took place was not accessible because the gate was always locked. However, further investigation would have shown the enforcement of the policy to lock the gate was lax at the time of the stabbing, that the institution subsequently took measures to tighten up the procedures, and that it was possible for a person to pass through the gate unnoticed immediately after the stabbings. There was no ineffective assistance of counsel as there was no reasonable probability that the outcome would have differed had trial counsel discovered the officer's statement regarding the locked gate policy.id: 17141
Court rejected claim of IAC on appeal where there was no indication in the record whether trial counsel consulted an independent pathologist or why he entered the stipulation regarding defendant's missed surrender dates.Defendant argued he was denied the effective assistance of counsel because his trial counsel failed to present the testimony of an independent pathologist to refute the time of death and the blood splatter expert's testimony, and also failed to present evidence that it was counsel's fault that he missed two scheduled surrender dates. However, there was no indication in the record whether defense counsel consulted an independent pathologist, why he decided not to present one at trial, or why he entered into a stipulation about the missed surrender dates. Under these circumstances, a claim of ineffective assistance of counsel is better left for decision in a habeas corpus proceeding.id: 17063
Defense counsel was not constitutionally ineffective at the penalty phase by failing to fully investigate mitigating evidence which could have been used by the prosecution to emphasize defendant's prior criminality.Capital defendant argued on habeas corpus that trial counsel was ineffective at the penalty phase in failing to investigate the harsh circumstances of his childhood and failing to consult any mental health experts. The defense called no witnesses at the penalty phase and attempted to mitigate defendant's culpability by reducing the jury's exposure to his criminal history which would have been highlighted by evidence of his mistreatment in the juvenile and adult penal systems in Alabama. Moreover, defense counsel did interview defendant's mother but defendant adamantly opposed having her testify and the record shows he understood the consequences of his actions. Trial counsel did not render ineffective assistance at the penalty phase.id: 16998
State law now permits police to monitor and record unprivileged jail communications to gather evidence of a crime.Defendant argued the surreptitious tape recording of conversations between her and her visitors constituted misconduct in violation of DeLancie v. Superior Court (1982) 31 Cal.3d 865. However, DeLancie no longer correctly states California law regarding inmate rights. Following the 1994 amendment to Penal Code section 2600, California law now permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime.id: 16783
Counsel did not render ineffective assistance in failing to orally argue the exigent circumstances issue at a suppression motion hearing where the issue was included in the written motion.Defendant argued that trial counsel rendered ineffective assistance of counsel at the hearing on the motion to suppress, by failing to to argue that the warrantless entry into her home was not justified by exigent circumstances. Counsel raised the exigent circumstances issue in his written motion but did not orally argue the issue. Even assuming oral argument on the issue was required, there was no prejudice since the record showed the warrantless entry was justified by exigent circumstances including the possible destruction of evidence and hiding of firearms.id: 16507
Counsel was not incompetent in eliciting defendant's uncharged crimes from a defense expert who was testifying as to defendant's reduced mental state.A defense expert, a psychiatrist, testified as to the factors that rendered defendant incapable of deliberation and premeditation. Defense counsel's tactical decision to elicit defendant's uncharged crimes and the facts surrounding their commission during the direct examination of the witness (in an effort to develop the witness' opinion) was not unreasonable under the circumstances at that time.id: 15886
Counsel was not ineffective in failing to renew the request for a change of venue following voir dire where there was no earlier definitive ruling.Trial counsel was not ineffective in failing to make a sufficient record in support of the change of venue motion. While the public survey opinion was never entered into evidence, counsel had orally recited all relevant statistical information, and this information became part of the record. Moreover, counsel's failure to renew the motion after voir dire was likewise not ineffective assistance of counsel. Although many prospective jurors had been exposed to some pretrial publicity, few recalled specific, or formed a resolute impression of defendant's guilt. Thus, the renewed effort would have been futile.id: 15887
Counsel was not ineffective in putting defendant's 10 prior convictions at issue during his direct examination.Defendant argued trial counsel was ineffective for not attempting to exclude defendant's 10 prior convictions, and, instead, by putting the priors at issue during direct examination. However, the strong probative value of the priors outweighed its prejudicial effect, and the trial court likely would have overruled trial counsel's objection under Evidence Code section 352. Accordingly, trial counsel's decision to voluntarily bring the priors out before the jury was a reasonable tactical choice designed to demonstrate defendant's candor with the jury.id: 15888
Defense counsel did not render ineffective assistance in failing to object to the admission of gang evidence.Defendant argued defense counsel rendered ineffective assistance by failing to object to the admission of prejudicial and irrelevant gang evidence. However, the record did not show counsel's performance was deficient as the gang evidence was properly admissible on the issue of witness credibility.id: 15889
Defense counsel was not incompetent in failing to inform defendant about section 2933.1 credit limits prior to the plea.A lawyer does not render constitutionally inadequate representation when he or she fails to inform the client sua sponte about the prison sentence credit limitations in Penal code section 2933.1 before the client pleads nolo contendere to a crime subject to such credit limitations.id: 15890
Defense counsel was not incompetent in choosing to avoid a sweeping declaration of innocence during closing argument, and focusing instead on offering a basis for the jurors to find less than first degree murder.Defendant argued defense counsel rendered ineffective assistance during closing argument by failing to argue for innocence in support of defendant's testimony. Given the strength of the prosecution's case, and the uncorroborated and incredible nature of defendant's testimony, defense counsel chose not to dwell on defendant's innocence but strove to undermine the first degree murder charge and alternatively, the special circumstance allegations. Counsel's argument was a reasonable tactical decision.id: 15891
Defense counsel was not ineffective for not requesting an instruction drawing the jury's attention to certain categories of mitigating evidence.Defense counsel did not render ineffective assistance of counsel at the penalty phase by not requesting a limiting instruction drawing the jury's attention to categories of mitigating evidence offered by the defense such as military service, defendant's deprived childhood, his role as a father, and his artistic abilities. Instructions of this type are argumentative and should not be given.id: 15892
Defense counsel was not ineffective in deciding to reveal detailed information on defendant's priors where they were similar to the instant crime and counsel originally represented they were not.Defendant argued defense counsel's decision to reveal detailed information regarding his prior convictions to the prosecutor rendered her performance deficient. He argued there was no tactical advantage in making the disclosure and counsel could have stayed within the court's expanded scope of impeachment by stipulating that the priors were robberies. However, defense counsel believed she had an ethical obligation of candor to the court. Counsel had earlier suggested the present and prior offenses were dissimilar but in each case the defendant pretended to have a gun. While disclosure did not present any tactical advantage counsel's conduct was reasonable under prevailing professional norms. Moreover, there is no prejudice since the court was about to allow the prosecutor to review the file on the priors.id: 15893
Evidence did not support the claim that defense counsel was incompetent in failing to investigate the possibility that the victim's husband was the killer.Defendant failed to establish his trial counsel rendered ineffective assistance of counsel in failing to investigate and present evidence on the possibility that the victim's husband committed the murder. Trial counsel acquired the prosecution's investigative reports which referred to the husband's activities and a defense investigator performed road tests timing the drive from the husband's workplace to the murder scene. He also attempted unsuccessfully to contact and interview a witness who had made a statement tending to implicate the husband. However, it was later determined the statement was not credible or worthy of further investigation. Finally, evidence supporting the husband's alibi virtually eliminated him as a suspect.id: 15894
Penalty phase counsel was not incompetent in presenting good inmate evidence absent the knowledge that an incident showing defendant was a bad inmate was dismissed for reasons other than factual innocence and therefore admissible in rebuttal.At the penalty phase the defense presented testimony by five deputy sheriffs concerning defendant's good attitude and behavior in custody. The prosecutor sought to introduce in rebuttal, evidence that defendant attempted to poison the food of other prisoners on one occasion. Lead defense counsel represented defendant on the charge filed relating to the incident but the complaint was dismissed. Subordinate counsel who prepared the penalty phase stated she assumed the food poisoning charges were dropped due to factual innocence and the jury should be preventing from hearing the evidence. However, the complaint was dismissed for unrelated reasons. Contrary to defendant's claim, counsel was not ineffective by deciding to present the good-inmate evidence without properly investigating the facts. The good-inmate evidence was strong and necessary, despite the food tampering evidence. Competent counsel armed with the evidence defense counsel should have had would likely have gone forward with the good-inmate evidence.id: 15895
Record did not show counsel was incompetent by failing to request a second attorney to assist with the penalty phase retrial.Defendant argued that counsel in the penalty retrial was incompetent by failing to request second counsel to assist in all phases of the proceedings. While the absence of mitigating character and background evidence was troubling, the appellate record provided no basis for concluding that the lapse was the result of counsel's incompetent failure to obtain trial assistance from another attorney.id: 15000
Trial counsel was not ineffective in failing to move to excuse a juror whose son was a testifying officer, where the officer's credibility was not challenged.Counsel did not render ineffective assistance in failing to move to excuse juror No. 5, the father of a police officer who testified. While, during voir dire, neither of the defense lawyers felt the father of two police officers would chill the discussion regarding police credibility, defendant now argues the chilling effect arose once the juror's son actually testified. However, the testimony of the juror's son was not controversial and his credibility was not challenged. There was no basis for second-guessing counsel's strategy in retaining juror No. 5.id: 15001
Counsel was not ineffective in failing to point out the marital privilege only allows a spouse to refuse to testify against a spouse where there was no offer of proof as to the wife's proposed testimony.Defendant's wife invoked the marital privilege and refused to testify at the penalty trial. He argued defense counsel provided ineffective assistance of counsel in failing to point out that the marital privilege only permits the spouse to refuse to give testimony against his or her spouse. The wife's testimony may have been favorable to defendant as she may have been a percipient witness on the night of the crime. However, defendant was unable to demonstrate prejudice because the record contained no offer of proof regarding the content of the witness' proposed testimony.id: 12327
Counsel was not ineffective in failing to pursue a claim that defendant's statements were involuntary because they were induced by a threat of the death penalty.Defendant argued defense counsel was incompetent for failing to pursue a claim that defendant's statements were involuntary because they were induced by a threat of the death penalty. The record was silent as to counsel's reasons for failing to challenge the statements on that ground. However, counsel may have concluded there was no basis for the claim because it did not appear from defendant's testimony that he made any statements to the police after the alleged references to the death penalty.id: 12328
Counsel was not ineffective for inquiring into defendant's involvement in gang activity.Counsel was not ineffective when questioning another witness regarding defendant's involvement in gang activity. The defense strategy was to focus the jury's attention at the penalty phase on the fact that defendant was a follower who operated under the influence of more sophisticated gang members. This was a viable strategy and defendant failed to establish ineffective assistance of counsel.id: 12329
Counsel was not ineffective in stipulating to the admission of a witness' guilt phase testimony where he had attacked her credibility during cross-examination.Counsel did not render ineffective assistance by stipulating that a witness was unavailable at the penalty phase (due to mental instability) and that her guilt phase testimony would be read to the jury at the penalty retrial. Although the offenses against the witness were admissible for different purposes, trial counsel had a similar motive to attack the credibility of her testimony whether it bore on the guilt issue or only on penalty.id: 12330
Counsel's decision to give a brief opening statement did not constitute ineffective assistance.Defendant alleged ineffective assistance of counsel based on defense counsel's opening statement which covered just two pages in the record. However, defendant failed to explain what critical matters counsel omitted from his statement. The mere fact that the opening statement was concise did not constitute ineffective representation.id: 12331
Counsel's failure to move for disclosure of the surveillance location was not ineffective assistance where there was no showing that disclosure might reasonably result in exoneration.Defendant argued the failure of his trial counsel to move for the disclosure of the surveillance location denied him effective assistance of counsel. However, the facts showed the surveilling officer during his radio communication with other officers described the defendants and monitored their activities. Because there was no showing that disclosure of the surveillance location had a reasonable possibility of resulting in defendant's exoneration his ineffective counsel claim cannot succeed.id: 12332
Counsel's failure to seek to dismiss the petty theft counts was not ineffective assistance where there were separateentries against separate interests.The information charged four burglaries, one grand theft and three petty thefts with prior theft convictions (Penal Code section 666). The entries into and thefts from four separately leased and locked offices amounted to crimes against four separate interests and therefore represented separate offenses. Counsel was not ineffective for failing to seek dismissal of the petty theft charges even though the jury became aware of the prior burglary conviction because of the section 666 allegations accompanying the petty theft counts.id: 12335
Counsel's mistaken reference to the vicarious liability rule as the felony murder rule did not require reversal.Defense counsel mistakenly referred to the vicarious liability rule<197>which is invoked when the killer was not one of the persons who committed the felony<197>as the felony-murder rule. Counsel's confusion did not require reversal because the vicarious liability rule had no applicability under the facts presented.id: 12336
Counsel's silence in the face of the court's erroneous assertion that counsel had previously tried a death penalty case did not amount to ineffective assistance.Defendant argued counsel's silence in the face of the trial court's erroneous assertion that counsel had previously tried a death penalty case constituted ineffective assistance. However, defendant failed to show how the outcome of the trial would have differed if counsel had corrected the court. Moreover, the fact that counsel had not yet tried a death penalty case did not inescapably lead to the conclusion that appointment of second counsel was necessary.id: 12337
Counsel's strategic decision to concede guilt during closing argument at guilt phase was not ineffective.Counsel's strategic decision to concede defendant's guilt during his guilt phase closing argument did not amount to ineffective assistance. Counsel reasonably concluded the evidence of guilt was overwhelming and wisely chose to concentrate his energies on convincing the jury that the charged felonies which would potentially expose defendant to the ultimate penalty were untrue or were insufficiently proven.id: 12338
Court was unwilling to find ineffective assistance where the record was silent as to the reasons counsel advised defendant to waive jury trial.Defendant characterized as incompetence counsel's advice that he waive his right to a trial by jury at the guilt phase. He argued that because his chief counsel headed the Public Defender's office, there was a conflict of interest because the burden of counsel's administrative duties conflicted with defendant's demands on his time. Defendant stated that this conflict led to the advice to waive a jury trial. However, where counsel's reasons were not apparent from the record the court would not assume inadequate representation. The decision may have been based on legitimate tactical grounds such as the assumption that a particular judge might be sympathetic to defendant.id: 12339
Defendant failed to show prejudice in counsel's failure to join a writ petition seeking to review the denial of a 995 motion where the issues were common to all defendants.Defendant argued counsel was ineffective by failing to join the writ proceeding arising from the denial of a motion to dismiss and for failing to file a Penal Code section 1558.5 motion to suppress within 10 days after the arraignment. However, defendant failed to show prejudice. Codefendant did seek writ review of the section 995 denial where the issues were common to all of the defendants and the writ petition was denied. Moreover, by timely pursuing trial court remedies under section 995 and 1538.5, counsel took, all steps necessary to preserve the claims for appellate review.id: 12340
Defendant's failure to show that he would have accepted the plea offer but for his counsel's inaccurate sentencing advice was fatal to his claim of ineffective assistance of counsel.When a defendant demonstrates that ineffective representation at the pretrial stage of a criminal proceeding caused him or her to proceed to trial rather than to accept an offer of a plea bargain that would have been approved by the court, the defendant has been deprived of the effective assistance of counsel guaranteed by the state and federal constitutions, even if he or she thereafter receives a fair trial. When a defendant has established that such a violation has occurred, the appropriate remedy is either modification of the judgment consistent with the terms of the offered plea bargain, or a new trial with resumption of the plea negotiation process. In the instant case, defendant failed to establish a credible, independently corroborated prima facie showing of a reasonable probability that he would have accepted the plea offer, but for his counsel's alleged inaccurate advice as to sentencing. He therefore failed to establish prejudice which was fatal to his claim of ineffective assistance of counsel.id: 12341
Defense counsel was not ineffective for failing to object to the prosecutor's name calling.During closing argument, the prosector called defendant a poor excuse for a human being with a classical sociopathic personality. The alleged misconduct was waived based on counsel's failure to object. The failure to object did not constitute ineffective assistance. It was a reasonable tactic to give the sometimes overzealous prosecutor enough rope to hang himself, while generally keeping him in bounds but on the bad side of the judge.id: 12342
Defense counsel was not incompetent in failing to challenge a juror who had a brief conversation with a prosecution witness at the penalty phase.The record showed a juror spoke briefly with a prosecution witness at the penalty phase. Defendant argued counsel was ineffective in failing to move to excuse the juror for misconduct. The juror committed misconduct in receiving information outside the court proceedings. However, defense counsel did not forget to challenge the juror, he chose not to. Given the juror's assurance that the conversation did not affect her and the court's admonition, counsel's tactical choice was not incompetent.id: 12343
Defense counsel's reference to his appointed status did not prejudicially distance himself from his client.Defendant argued that counsel's closing argument distanced counsel from his client by remarking on his status as appointed counsel, and in general was perfunctory. However, counsel's comment on his appointed status and statement that he was proud to stand before the jury and plead for defendant's life, did not distance himself from defendant. Moreover, that counsel's argument was brief did not make it inadequate. Finally, any deficiency in the argument was harmless as the question of prejudice was not close.id: 12345
Failure to object to exclusion of defendant's family members from the proceedings did not constitute ineffective assistance.Defendant argued counsel was ineffective for failing to object to the exclusion of defendant's family from the courtroom since these relatives could have assisted counsel by observing the demeanor of witnesses and jurors. Assuming counsel should have objected, these benefits are too speculative.id: 12347
Failure to request civilian clothing for defendant did not establish ineffective assistance of counsel.A criminal defendant is entitled to be tried in ordinary clothing. The right may be waived by failure to object or otherwise bring the matter to the court's attention. Counsel was not ineffective in failing to request civilian clothes for defendant as there are times that for tactical reasons the defendant may wish to be tried in jail garb.id: 12348
Ineffective assistance claim failed at a habeas corpus proceeding where appellant failed to establish prejudice from trial counsel's failure to investigate mitigating evidence.Counsel called no witnesses at the penalty trial and offered no mitigating evidence. While the procedures followed by trial counsel to investigate penalty phase evidence in mitigation fell below minimum standards, defendant was not entitled to a reversal based upon a claim of ineffective assistance where he failed to establish that, but for counsel's error the result would have been different. The court described defendant's crimes as among the more aggravated cases to come before the court. That additional evidence may have described defendant's childhood poverty and learning disabilities would not have changed the outcome. Moreover, evidence of defendant's background and mental condition came before the jury during the sanity phase of the trial.id: 12349
On a silent record the court would not assume counsel's failure to present mitigating evidence at the penalty phase rendered his assistance ineffective.Defendant argued that his counsel's failure to present any mitigating evidence at the penalty phase produced a constitutionally unreliable result and that it resulted in the denial of the effective assistance of counsel. However, the record did not disclose the reasons for this course of action. Defendant may have told counsel that he wanted no mitigating evidence presented. Alternatively, counsel may have had a tactical reason for failing to present such evidence. Where the record is silent the court would not assume counsel's failure to present mitigating evidence rendered his assistance ineffective. Any claim in this regard must be raised on habeas corpus.id: 12350
Presentation of a lingering doubt argument in isolation at the penalty trial is not incompetent as a matter of law.Defendant argued counsel's closing argument was incompetent because counsel told the jury that if they had no lingering doubt, perhaps death was the appropriate penalty. Defendant argued it is always incompetent to present a lingering doubt defense in isolation at the penalty phase, and that it is required to portray defendant as a human being and give the jury a reason to spare defendant's life. However,the presentation of a lingering doubt argument in isolation at the penalty trial cannot be considered incompetent as a matter of law, nor did defendant establish prejudice in the instant case.id: 12351
Referring to complaining witness as victim did not constitute ineffective assistance.Defense counsel was not constitutionally ineffective for referring to the complaining witness as the victim several times.id: 12352
Trial counsel did not err in failing to advise the defendant of the consequences of two routine factual stipulations.During trial, counsel agreed to stipulate that the victim was 76 years old at the time of her murder, and that defendant was on parole for armed robbery at that time. Defendant argued that counsel erred in failing to advise him of the consequences of the stipulation. However, the factual stipulations were routine and nothing in the record suggested the People would have had any difficulty in proving the victim's age or defendant's parole status.id: 12353
Trial counsel was not ineffective at the penalty phase in failing to exhaustively argue the concept of lingering doubt.Defendant argued that trial counsel's argument to the penalty jury of a lingering doubt was so perfunctory as to deny him the benefit of that defense. However, given the jury's overwhelming rejection of defendant's alibi defense and his attack on the chief prosecution witness' credibility during the guilt phase, trial counsel might easily have decided that rehearing that evidence once again during the penalty phase might have a boomerang effect on the jury.id: 12354
Conflict attorney was not ineffective in failing to file a motion to withdraw the plea after being appointed to investigate possible ineffective assistance by trial counsel.Defendant pled guilty to child molest and was sentenced to three years in prison. He argued that an attorney specifically appointed to investigate possible ineffective assistance by appellant's trial counsel was himself ineffective because he refused to file a motion to withdraw the plea. However, the newly-appointed counsel indicated he did not believe the motion to withdraw was viable. In light of the strong presumption that counsel acted properly his comment to the court was an expression of his good faith opinion that a motion to withdraw the plea would be frivolous. Moreover, no evidence was presented that trial counsel violated any duties.id: 12355
Incompetence in failing to investigate mitigating evidence regarding defendant's childhood was not prejudicial where counsel may have refrained, for tactical reasons, from introducing such evidence at the penalty phase.Defendant's trial counsel, by failing to conduct a reasonable investigation of defendant's background and childhood to enable him to make an informed decision as to the best manner of proceeding at the penalty phase, failed to provide competent representation. Counsel could have introduced evidence of defendant's abused childhood without opening the door to the prosection's introduction of evidence of defendant's prior violent assault. The confusion of trial counsel on this legal question was not so unreasonable as to demonstrate that a technical decision not to offer this evidence, based on such mistake, would have fallen below the level of constitutionally adequate representation. The error was therefore, not prejudicial.id: 12297
Advisory counsel was not ineffective for failing to present mitigating evidence at the penalty phase.A self-represented defendant may not claim ineffective assistance on account of counsel's omission to perform an act within the scope of duties the defendant voluntarily undertook to perform personally at trial.id: 12298
Appellant was not denied the effective assistance of counsel where counsel refused to present mitigating evidence at the penalty phase retrial and another attorney was appointed and presented such evidence.At appellant's first penalty phase trial, counsel, at appellant's direction, presented no mitigating evidence. The Supreme Court found that counsel's actions constituted ineffective assistance. At the penalty phase retrial, the court ordered counsel to present any available mitigating evidence or be held in contempt. Appellant stated his unequivocal desire that no such evidence be presented. Counsel honored his client's wishes and presented no mitigating evidence. An investigator and a new attorney were appointed for the purpose of presenting such evidence. Appellant was not denied the effective assistance of counsel. The case in mitigation presented on his behalf was substantial. Moreover, a defendant who insists that counsel not present mitigating evidence cannot later claim that counsel was ineffective.id: 12300
Appellate counsel was not ineffective in failing to abandon the appeal.Appellant argued he was denied effective assistance of appellate counsel. He claimed counsel's transgression was in pursuing rather than abandoning the first appeal as it was determined there was a possibility that the appeal could result in the reimposition of a special circumstance allegation which would have made appellant ineligible for parole. However, appellate counsel wrote a letter to appellant explaining the risks and alternatives and appellant took no action to abandon the appeal. It was therefore appellant, not counsel, who decided to pursue rather than abandon the appeal.id: 12301
Counsel did not render ineffective assistance by telling the jurors the victim suffered great bodily injury.Appellant argued defense counsel rendered ineffective assistance in conceding that the victim suffered great bodily injury. However, appellant's identity as the shooter of his own son was undisputed. There was no evidence of self-defense, impairment, or accident. If counsel tried to minimize the gunshot wound and argue it was not great bodily injury he would have risked losing all credibility. Even if the jury found the Penal Code section 12022.7 great bodily injury allegation not true, a separate great bodily injury allegation under section 667.7 would have been satisfied given appellant's use of force. That appellant was convicted only of assault with a firearm rather than attempted murder established that counsel's tactics were not ineffective.id: 12302
Counsel did not render ineffective assistance in withdrawing his motion to sever the rape counts from the murder counts.Counsel withdrew his motion to sever the rape counts from the murder counts. He explained that he did so because had such a motion been granted, the rape counts would have been tried first and convictions could have been used for impeachment in the trial on the murder counts. Counsel's decision to withdraw the motion did not constitute ineffective assistance notwithstanding that defendant received favorable verdicts on the rape counts.id: 12303
Counsel in capital case was not incompetent in conceding that one of the two deaths was murder.Defendant argued defense counsel's closing argument amounted to abandonment of his client because he conceded that one victim's death was murder. However, it was not unreasonable to seek to avoid the death penalty by seeking a conviction on one count of second degree murder and one count of involuntary manslaughter on a plausible theory, when the prosecution's evidence put defendant at grave risk of two first degree murder convictions.id: 12304
Counsel was not deficient in failing to seek a continuance based on appellant's belated claim of head injuries prior to sentencing.Appellant argued counsel was ineffective for failing to seek a continuance, prior to sentencing, to investigate the possibility of a head injury to defendant which may have been considered a mitigating circumstance. However, in the absence of any substantiation of appellant's belated claim of head injuries, counsel was not deficient in failing to seek a continuance.id: 12305
Counsel was not incompetent for failing to request the appointment of a second attorney to assist in the guilt phase.Defendant argued counsel was incompetent by failing to invoke the trial court's discretion to appoint a second attorney to assist him in the guilt phase of the capital case. However, the record failed to establish that counsel was overwhelmed in conducting the defense. He frequently consulted with substitute penalty phase counsel throughout the guilt phase proceedings and he had the support of codefendants' counsel on important common issues.id: 12306
Counsel was not incompetent for failing to offer into evidence the confession of a third party where its admission would not have made appellant's incredible story more believable.Appellant argued trial counsel was incompetent for failing to offer into evidence the extrajudicial confession of a third party. Assuming that competent counsel would have discovered the statement and that it was admissible, appellant suffered no prejudice due to the error. The appropriate prejudice analysis turns on the effect the statement would have had on appellant's credibility. If its receipt might have caused the jury to believe appellant, then its omission was prejudicial. However, this case did not involve a single credibility conflict. Rather, appellant presented a far-fetched episode that left him with almost no credibility. Admission of the statement in question would not have changed this.id: 12307
Counsel was not incompetent in recommending a plea of guilty to second degree murder.Appellant argued counsel was incompetent to recommend he plead guilty to second degree murder. However, it was trial counsel who, before the plea had to weigh the risks of a first degree murder conviction with a 25 year to life sentence, or a second degree gun-use murder conviction with a 17 year to life sentence. Trial counsel, not appellate counsel, reviewed the prosecution evidence, interviewed appellant, considered possible defenses, and asserted probable trial outcomes. There is nothing in the record to suggest trial counsel's plea advice was not competent.id: 12308
Counsel was not ineffective by agreeing to defendant's request that his grandmother not be called to testify as a defense witness at the penalty phase.Counsel had planned to call defendant's grandmother as a penalty phase witness but defendant requested that she not be called because he did not want to put her through the emotional trauma. Defendant, on appeal, argued counsel in agreeing to abide by defendant's wishes rendered ineffective assistance. However, since his claim was not predicated on any antecedent act or omission by counsel, the claim failed.id: 12309
Counsel was not ineffective for calling a witness where he advised against calling the witness but his client insisted.Appellant argued that his attorney acted incompetently by calling a witness who gave damaging testimony. However, the record established that counsel called the witness at his client's insistence and only after explaining the risks and advising against it.id: 12310
Counsel was not ineffective in causing the jury to learn of the prior judgment of death.During cross-examination of a prosecution penalty phase witness, defense counsel deliberately elicited testimony that defendant had previously been convicted of other crimes and had received the death penalty. However, defense counsel reasonably could, and obviously did, believe that on balance, the information, in conjunction with the use counsel made of it, would increase the chances of the defense avoiding a second death verdict.id: 12311
Counsel was not ineffective for failing to produce evidence that appellant's brother was the actual shooter.Appellant argued he was denied the effective assistance of counsel when his attorney failed to produce testimony from appellant's brother that he, not appellant, was the actual shooter, and again when retained counsel at the sentencing hearing declined to move for a new trial on that basis. However, following appellant's habeas corpus petition and subsequent production of evidence the majority determined there was no ineffective assistance where trial counsel may have had reasons for not producing the evidence in question. The court found the allegations were speculative, that appellant's brother, if called, would have exercised his right against self-incrimination and that counsel pursued alternative but not incompatible defenses.id: 12312
Counsel was not ineffective for failing to object to the introduction of the confession where some of the statements supported the defense theory.Defendant argued counsel was ineffective for failing to object to his confession. The client had already received one death sentence. Defendant's statements regarding the rings supported the defense theory that he took them after the murder which would be a defense to the robbery charge and the related robbery-murder special circumstance. Counsel's actions were the product of informed tactical choice within the range of reasonable competence.id: 12313
Counsel was not ineffective in failing to correct the court's misstatement as to his skills and experience.Defendant argued that counsel's silence in the face of the court's erroneous assertion that he had previously tried a death penalty case constituted ineffective assistance. However, defendant failed to demonstrate how the outcome of his trial would have been any different had counsel corrected the trial court's misstatement. Moreover, that counsel had not yet tried a death penalty case did not inescapably lead to the conclusion that effective assistance required the appointment of second counsel.id: 12314
Counsel was not ineffective for failing to arrange for a psychiatric exam to support an NGI plea where defendant rejected the defense even if it would prove successful.During the prosecution's case, the trial court became aware that defendant planned to assert a mistake-of-fact defense based on his claim that he was operating under a delusion when he set the fire. The court discussed with defendant the possibility of a not guilty by reason of insanity plea. The court assured herself that defendant had thoroughly discussed the subject of an NGI plea with counsel. On appeal, defendant argued counsel rendered ineffective assistance by failing to arrange for a psychiatric examination to determine whether an NGI plea was factually supportable. However, there was no evidence presented that a psychiatric exam could have supported an NGI plea and no evidence that any such information would have caused defendant to change his mind and enter an NGI plea.id: 12315
Counsel was not ineffective for failing to anticipate an opinion regarding the child sexual abuse accommodation syndrome.Appellant argued counsel rendered ineffective assistance in failing to anticipate an appellate opinion regarding the child sexual abuse accommodation syndrome. However, counsel did not perform at a substandard level since the opinion was not predictable and involved an evolving area of the law as opposed to a solidly entrenched legal precept.id: 12316
Counsel was not ineffective in failing to object to hearsay evidence corroborating the testimony of a minor witness where there was a clear tactical reason.Trial counsel was not inadequate in failing to move to exclude hearsay evidence corroborating one of the minor witnesses' testimony that he had been sexually molested by the defendant. The record revealed a clear tactical reason for her failure to object to the admission of the victim's response to the question as to whether anyone had touched him as the defense centered around the theory that the witness (the victims' mother) was angry with defendant (the father) and planted in the boys' heads the idea that defendant had molested them.id: 12317
Counsel was not ineffective in failing to object to the admission of a videotape of the victim's interview with a social worker.Appellant argued counsel was ineffective for failing to object to the introduction of the videotape interview between the victim and social worker because the videotape contained inadmissible hearsay. However, the videotape was introduced after the victim's testimony to rehabilitate her credibility, not as the evidentiary counter-piece to demonstrate appellant's guilt. More importantly, trial counsel's use of prior inconsistent statements during the victim's cross-examination rendered the videotape admissible hearsay.id: 12318
Counsel was not ineffective in failing to object to testimony on cross-examination regarding a bar fight in which defendant participated in 1978.Defendant argued he received ineffective assistance where defense counsel failed to object to the admission of evidence that in 1978 defendant had been in a bar fight in which he hit a man with a pool cue and then broke the man's face by punching him. Defendant argued the evidence adduced during cross-examination was improper character evidence that was inadmissible under Evidence Code section 1101. However, the record did not show that counsel had no tactical reason for failing to object. To the contrary, counsel may have wanted to present defendant as forthright in admitting his past.id: 12319
Counsel was not ineffective in failing to investigate or present evidence of defendant's stress disorder based on his Viet Nam combat experience.Defendant argued in his habeas corpus petition that trial counsel rendered ineffective assistance by failing to investigate or present evidence of Post-Traumatic Stress Disorder (PTSD) because of his "combat experiences" in Viet Nam. However, none of the four psychiatric reports indicated that defendant was suffering from that disorder. Moreover, defendant did not invent his combat experience until after he had been convicted and there was no other evidence of combat experience. Thus, there was no evidence to alert counsel to a need to explore the defense. Finally, even if counsel should have presented the evidence it was weak and incredible, and no reasonable jury would have believed such evidence.id: 12320
Counsel was not ineffective in failing to excuse a juror who stated that people should be responsible for their choice to use drugs.Defendant argued counsel was ineffective in failing to excuse a juror who stated that people should be responsible for their choice to use drugs. However, the juror never indicated that a defendant's voluntary drug ingestion would prevent her from choosing life without parole rather than death, as the appropriate punishment for a capital crime. The record disclosed no manifest incompetence in counsel's decision to retain the jurors.id: 12321
Counsel was not ineffective for failing to challenge a potential juror who was a recent victim of an auto theft.Defendant was charged with auto theft among other things. He argued counsel was ineffective in failing to challenge a juror who had recently had her car stolen and had not yet been recovered. However, defense counsel made the effort to rehabilitate the juror and to make clear in her mind that she could be fair and impartial. Such conduct showed defense counsel had some reasonable justification for wanting to keep her on the jury, despite the recent theft of her car.id: 12322
Counsel was not ineffective for failing to investigate a defense based on drug and alcohol intoxication and combat-inducted PTSD.Defendant alleged ineffective assistance based on counsel's failure to investigate a defense based on drug and alcohol intoxication and combat-induced post traumatic stress disorder (PTSD) at the guilt and penalty phases. Defense counsel declared he had defendant examined for PTSD and was told there was no evidence of the disorder. Defendant argued such evidence would have supported his honest but unreasonable self-defense theory. However, the People's evidence which negated any claim of honest self-defense, was extremely convincing. Regarding intoxication, the jury was aware defendant had consumed substantial amounts of drugs and alcohol on the day of the murder but eyewitnesses suggested he was not highly intoxicated and defendant agreed.id: 12323
Counsel was not ineffective in failing to investigate and present a diminished capacity defense at the capital trial where there was no evidence of PCP use on the night of the crimes.Defendant argued his trial counsel was incompetent in his capital trial for failing to investigate and present a diminished capacity defense (which was a viable defense at the time of the trial). There was evidence of defendant's habitual PCP usage available to trial counsel. However, counsel's unjustified failure to investigate the alleged PCP use was not prejudicial because there was no evidence that defendant was under the influence of PCP on the night the crimes occurred. Instead the evidence merely demonstrated that the defendant habitually ingested PCP.id: 12324
Counsel was not ineffective for failing to move for a new trial after it was discovered a complaint against a key prosecution witness was dismissed after he testified.Capital defendant argued trial counsel was ineffective in not seeking a new trial based on postverdict evidence that certain charges against a key prosecution witness were dismissed after his testimony. While this may have constituted newly discovered evidence under Penal Code section 1181, subdivision 8, it is unlikely the evidence would have met the two additional criteria required to support a new trial motion: that it not be cumulative and that it would render a different result probable on retrial.id: 12325
Counsel was not ineffective in failing to enlighten the court as to defendant's brain damage where the record did not establish defendant, in fact, suffered brain damage.Defendant argued trial counsel was ineffective after the death verdict was returned due to the lack of diligence in procuring an expert witness to enlighten the court about defendant's organic brain damage. However, the record did not support an inference that defendant, in fact, had brain damage. The question would be more appropriately raised in a habeas corpus proceeding.id: 12326
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245