Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. 198869 & 203442.
Bamattre-Manoukian, ACTING P.J.
Following a court trial, the court found defendant Adam Torrez guilty of 19 counts of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)), and one count of substantial sexual conduct with a child under 14 (§ 288.5, subd. (a)), and also found true allegations that defendant had substantial sexual conduct with the victim, Carlos A., within the meaning of section 1203.066, subdivision (a)(8), as to all counts. The court also found defendant guilty of one count of committing a lewd act on a child under 14, and one count of substantial sexual conduct with a child under 14, and found true allegations that defendant had substantial sexual conduct with the victim, Jane Doe, as to both counts. The court sentenced defendant to a life term plus 66 years in state prison. This court affirmed the judgment on appeal. (People v. Torrez (July 18, 2003, H021287) [nonpub. opn.]), and the Supreme Court denied defendant’s petition for review.
Further statutory references are to the Penal Code unless otherwise specified.
On February 20, 2007, this court granted the People’s request that the court take judicial notice of the clerk’s transcript and our opinion in defendant’s appeal.
Defendant subsequently filed a petition for writ of habeas corpus in the trial court, contending that he was denied his right to effective assistance of trial counsel. The trial court issued an order to show cause. Following an evidentiary hearing, the trial court denied defendant’s petition with respect to the 20 counts involving Carlos, but granted the petition as to the two counts involving Jane. It therefore set aside the judgment and ordered a new trial as to those counts only.
Jane Doe was referred to by her actual name throughout the habeas proceedings. Because we referred to her as Jane Doe in our prior opinion, however, we will continue to do so here.
The People appeal, contending that defendant did not carry his burden of demonstrating that trial counsel’s conduct was deficient, and that the trial court erred in assuming that it was. The People further contend that the trial court erred in finding that defendant was prejudiced by counsel’s allegedly deficient conduct. After independently reviewing the record, we conclude that there is insufficient evidence as a matter of law to establish that trial counsel’s conduct was deficient. We further conclude that, even if we assume that counsel’s performance was deficient, defendant has not carried his burden of showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Accordingly, we reverse the order granting the petition for writ of habeas corpus.
BACKGROUND
Defendant was charged by consolidated information and indictment with 31 counts of lewd conduct on a child under 14 (§ 288, subd. (a); counts 1 – 31), and one count of committing substantial sexual conduct with a child under 14 (§ 288.5, subd. (a); count 32) involving Carlos A. Counts 1 through 31 included a tolling allegation and all the counts additionally alleged that defendant had substantial sexual conduct with Carlos within the meaning of section 1203.066, subdivision (a)(8).
The consolidated information and indictment also charged defendant with one count of forcible lewd conduct on a child under 14 (§ 288, subd. (b)(1); count 33), three counts of lewd conduct on a child under 14 (counts 34 – 36), and one count of substantial sexual conduct with a child under 14 (count 37), involving Jane Doe. All the counts also included allegations of substantial sexual conduct under section 1203.066, subdivision (a)(8).
Defendant waived his right to a jury trial. During the court trial, the prosecution moved to amend the charging document to add an allegation pursuant to section 667.61, subdivision (b), and to dismiss counts 1 through 12 and 33 through 35. The court granted the prosecution’s motions. On June 4, 1999, the court found defendant guilty of counts 13 through 32, 36, and 37, and found true all enhancement allegations as to those counts. On March 3, 2000, the court sentenced defendant to a life term plus 66 years in state prison.
On appeal, defendant contended that (1) all charges concerning Carlos were barred by the statute of limitations, (2) he was denied his right of confrontation when Carlos was allowed to testify in defendant’s absence during an in-chambers telephone conference, (3) his sentence imposed pursuant to section 667.61 violated ex post facto principles, (4) trial counsel was ineffective in his cross-examination of Carlos, (5) the court’s rulings regarding Carlos’s testimony constituted prejudicial error, (6) cumulative error resulted in the denial of a fair trial, and (7) the court erred in failing to grant a sufficient continuance for the preparation of a new trial motion. This court affirmed the judgment in an unpublished opinion filed July 18, 2003. (People v. Torrez, supra, H021287.) In our opinion, we summarized the testimony of Jane, Carlos, the prosecution’s expert witnesses, and defendant as follows.
“Dr. David Kerns, who testified as an expert in the medical evaluation of possible child sexual abuse cases, reviewed a report and magnified photographs that Mary Ritter prepared of an examination she conducted on Jane on March 18, 1997. At the time of the examination Jane was eight years, nine months old, Dr. Kerns was the chairman of the pediatrics department at Valley Medical Center (VMC) and Ritter was the clinical coordinator of the Center for Child Protection at VMC. The examination and photographs of Jane’s external genitalia revealed a markedly narrowed hymeneal rim, which is the most frequent and consistent finding seen in cases of repeated penetrating trauma. The findings were too extensive to have been caused by a single incident, and there was no evidence of fresh or acute trauma. The findings were consistent with an attempted or actual penile penetration, and also consistent with repeated penetration by a finger or fingers.”
“Jane testified that defendant is her father’s brother, and that he lived with her grandparents. After her parents broke up, her father lived with her grandparents also. Jane used to visit her grandparents’ home about once a week with her mother and brother Carlos. Defendant had his own bedroom on the second floor. He had toys and a television in there, as well as video games. Often Jane would be alone in defendant’s bedroom with him.
“Defendant sometimes touched Jane in a way that she did not like. She did not remember when it first happened, how old she was, or what grade she was in. The first time, defendant put his hand on her vagina but she could not remember if it was over or under her clothes. The second time he touched her it was under her clothes. At a later time he put his tongue on her vagina. All these touchings happened more than twenty times, the whole time she was in the second and third grades.
“Defendant also asked Jane to touch his penis. She did it because she was scared. Defendant tried to put his penis in her vagina but it hurt and she started crying. He also tried to put his penis in her rectum but she said, “No, please don’t do that” and ran out of the room. Nobody else was in the room with defendant and Jane when the touchings occurred, and he would sometimes close the bedroom door. The touchings continued until Jane told her mother. After that, except for when her father died, they never went back to her grandparents’ home.
“Jane told her mother about the touchings because she was tired of defendant hurting her. At the same time, she told her mother that Carlos had rubbed himself against her while they both had their clothes on. Carlos had to leave her house and she was not allowed to see him again. She told Carlos before he left what defendant had done to her. It was after that, and after she had told a counselor about the touchings, that she was examined by a nurse and talked to a policeman. Jane had not told anybody about the touchings before then.”
“Carlos testified that he was about five years old when he first met defendant. He and his mother used to visit defendant’s family in their home on weekends. Defendant had toys and games and Nintendo in his room, and Carlos would spend time with defendant there. Most of the time it was just the two of them, but sometimes there were other people in the room.
“Defendant first fondled Carlos’s penis when Carlos was six years old. The next time, defendant wanted Carlos to fondle defendant’s penis. Carlos was hesitant, but defendant took his hand and placed it there. Defendant told him not to tell anybody and that, if he did, he would be the one to get in trouble. Later, defendant started to orally copulate Carlos, and he asked Carlos to do the same thing to him. When Carlos said no, defendant said that if he did not do so defendant would not let him play with his toys or video games. Defendant used his hand to move Carlos’s head toward his penis. When Carlos was seven or eight, defendant began to sodomize him. Some type of touching occurred almost every time that Carlos visited defendant.
“When Carlos was about nine years old, he started telling his mother that he did not want to go to defendant’s house. She would then sometimes let him stay with other relatives. Even when he did go with his mother to the visits, the touchings by defendant did not happen as often. The last touchings occurred when Carlos was ten. The first person Carlos ever told about the touchings was his counselor at Martin House. He did not tell anybody about them before then because he was afraid that he would get into trouble.
“Dr. Angela Rosas, a pediatrician at the U.C. Davis Medical Center who testified as an expert in the medical evaluation of possible sexual abuse, examined Carlos on December 8, 1997. During the examination she found that Carlos had some very dark spots on one side around his anus that were unusual. After consultation with other colleagues she felt assured that these spots were pigment discoloration from scarring around the anus from penetration injury. The age of the scarring was consistent with the time frame of the history of sexual abuse Carlos had described to her. Any object penetrating the anus that would be large enough to cause injury to the anus itself could cause the scarring. Carlos’s chronic bowel problem is seen in both children who have and children who have not been sexually abused, and the problem would not be the cause of the scarring she found.”
“Defendant testified that he was still in high school when he met Carlos, who was then about five years old. At the time, he shared his bedroom with his nephew Manuel. Rachel[, who is Jane’s and Carlos’s mother,] and Carlos would visit about once a month. Defendant would spend 15 minutes with Carlos, at the most, during the visits. Defendant tried to be Carlos’s friend, but sometimes Carlos would bother him and he would ask Rachel to keep Carlos away from him. During the first year, defendant only allowed Carlos in his room once, and that was to sleep overnight. Manuel was not there at the time. Carlos was not alone in defendant’s room with him other than that time, and Carlos never slept in defendant’s room again. Defendant had toys and Nintendo in his room but he did not let Carlos play with the Nintendo until he was nine or ten. Manuel was usually in the room when Carlos was there. They never had the door closed. Carlos spent more time with Manuel then he did with defendant.
“After Jane was born, the family visits increased to about three times a month, and then decreased again when Jane was about four. Carlos did not come on most of these visits. Defendant spent most of the time during the visits at a friend’s house. When he was there with Jane, he would watch television with her downstairs. He was only left alone with her once, and then only for about 15 minutes while his father went to the store. When Jane was four, she told Rachel that defendant had touched her the wrong way, but he denied it. Defendant tried to avoid Jane after that.
“Carlos was recalled and testified via telephone that in June or July 1997 he began using the handle of a toilet plunger to penetrate his own rectum. He did this about five times, the last time in August 1997. He never put anything else in his rectum.
“Jane was recalled and testified that the one time her brother touched her inappropriately he just rubbed himself up against her. He never did anything to her at any time other than that. She once told her mother before she was eight about defendant touching her. She did not remember how old she was, but remembered saying that defendant once touched his hands on her private parts, hurting her. Defendant was nicer to her after that, and did not hurt her as much when he touched her. Defendant continued to touch her, but she waited to tell her mother again because she was afraid and did not know if defendant would hurt her.”
The Supreme Court summarily denied defendant’s petition for review on October 15, 2003.
On November 12, 2004, defendant filed a petition for writ of habeas corpus in the trial court, contending that he was denied his right to effective assistance of trial counsel. Specifically, he argued that counsel (1) failed to investigate, prepare, and challenge the prosecution’s medical testimony regarding Carlos and Jane, and failed to present medical testimony for the defense; (2) failed to impeach Carlos with his prior statement to investigators; (3) failed to obtain discovery, including Carlos’s juvenile court records; (4) failed to impeach Carlos with evidence of his prior conduct and juvenile adjudications; and (5) failed to raise and present a statute of limitations defense. Ten exhibits were attached to the petition, and were incorporated by reference. Exhibit 1 was this court’s opinion on appeal. Exhibit 2 was a printout of docket entries showing that defendant’s petition for review in the Supreme Court was denied. Exhibit 3 was a declaration from defendant’s habeas counsel stating that he had asked defendant’s trial counsel “whether he had consulted with or retained any medical experts in the case” and that trial counsel had said that “he had not done so.”
Exhibits 4 and 5 were declarations from Lee Coleman, M.D., a child psychiatrist. In exhibit 4, Dr. Coleman stated that he had reviewed Carlos’s medical records and the trial testimony of Dr. Rosas. In Dr. Coleman’s opinion, “the trial testimony of Dr. Rosas was a travesty, and the failure to call a physician to rebut [her] claims was a major injustice perpetrated on Mr. Torre[z].” In exhibit 5, Dr. Coleman stated that he had reviewed Jane’s medical report and the trial testimony of Dr. Kerns. In Dr. Coleman’s opinion, “the examination of this child, as described in the report, was completely normal.”
Exhibit 6 was an underlying police report, which included a transcript of Carlos’s November 26, 1997 telephone conversation with an investigator. Exhibit 7 was Dr. Rosas’s medical reports concerning Carlos. Exhibit 8 was the Welfare and Institutions Code section 827 petition by defendant requesting Carlos’s juvenile court records. Exhibit 9 was the reporter’s transcript of a July 13, 1998 hearing concerning that petition. Exhibit 10 was an order settling the record in defendant’s appeal.
No declaration from defendant’s trial counsel was attached as an exhibit.
On January 10, 2005, the trial court issued an order to show cause, finding that defendant had set forth a prima facie case for ineffective assistance of counsel. The District Attorney filed the return to the order to show cause on April 8, 2005, contending that defendant could not carry his burden of showing that counsel was incompetent or that he was prejudiced. As relevant to this appeal, the District Attorney argued that counsel thoroughly cross-examined both of the prosecution’s medical experts and there were valid tactical reasons to not hire a defense expert. Attached to the return as exhibit A was a copy of a letter the District Attorney sent to defendant’s trial counsel on February 10, 2005, asking trial counsel to review his file and defendant’s petition and to “prepare an affidavit covering [his] representation of Mr. Torrez” in response to the petition. No affidavit by counsel was attached.
Defendant filed his traverse to the return on September 14, 2005, contending that “[a] failure even to consult an expert cannot possibly be ‘tactical,’ ” and that the trial court should conduct an evidentiary hearing to determine whether defendant suffered prejudice because “the trial court found Carlos and [Jane] credible when their accusations were supported by unchallenged medical testimony.”
On November 28, 2005, the trial court filed its order “that an evidentiary hearing take place for the limited purpose of addressing the following issues: (1) whether [defendant’s] attorney failed to provide an expert to challenge the medical testimony at the trial resulting in prejudice to [defendant], and (2) whether [defendant’s] attorney[’s] failure to question Carlos directly with his prior conduct against other children resulted in prejudice.” The court rejected the remaining issues presented in the habeas corpus petition as grounds for relief. At a hearing on July 14, 2006, the court stated: “I think, the order speaks for itself. [¶] I think, it’s clear. [¶] I made the assumption that the first prong of Strickland [v. Washington (1984) 466 U.S. 668 (Strickland)] had been shown by virtue of the petitions based on what was presented at the time, notwithstanding the subsequent events, I’m going to stand by that particular order. [¶] So, the issue will be whether or not the petitioner can show prejudice, of course, goes to the heart of everything in consideration here.”
The evidentiary hearing was held on September 1, 2006. Defendant presented the testimony of Dr. Coleman and Dr. James Crawford, a pediatrician and the medical director of the Center for Child Protection at Children’s Hospital in Oakland. The prosecutor presented no witnesses other than the trial judge, who testified over defendant’s objection and subject to a motion to strike. At defendant’s request, the court took judicial notice of the transcripts of the trial testimony.
The court accepted Dr. Coleman as an expert in the area of child sexual assault examinations. Dr. Coleman testified that he examined the photographs from and the report of Jane’s medical examination by Mary Ritter and Dr. Kerns, as well as the trial testimony of Dr. Kerns. The report states that Jane’s hymeneal rim was abnormally narrow, which was indicative of sexual abuse. During Dr. Kerns’s testimony, he continued to maintain that the narrow hymeneal rim was indicative of abuse. In Dr. Coleman’s opinion, Dr. Kerns is contradicting “established knowledge in the field.” The photographs show that the hymeneal rim is not necessarily narrow in some areas, there is no evidence that the narrow rim was abnormal, and having a narrow hymeneal rim as a result of sexual trauma “completely violates basic medical understanding of the human body.” Dr. Coleman does not see anything in the photographs “that depict signs of sexual penetration or trauma or molestation as those signs have been described in the current professional literature.”
Dr. Coleman further testified that he reviewed the examination reports of Carlos written by Drs. Rosas and McCan, photographs, and the testimony by Dr. Rosas. The initial report describes pigmented areas around the anus which were not normal, but there was no conclusion that this was an indication of abuse. A later report describes a small laceration in the anus as well as surrounding redness, which would signify some recent trauma to the anus. Dr. Rosas testified that she concluded, after consulting with a dermatologist, that the dark spots were due to scaring from prior sexual trauma or prior injury. In Dr. Coleman’s opinion, Dr. Rosas’s conclusion “has no medical foundation, because . . . [in] none of the reports from the three examinations was there a claim that there was any scarring.” Based on his examination of the photographs and his training and experience, in Dr. Coleman’s opinion the discoloration was most likely either from a congenital variation or from some prior bleeding where the blood was not reabsorbed. Because Carlos had been diagnosed with encopresis, he could have lacerations, abrasions, engorgement of the veins and bleeding in that area.
Dr. Coleman defined encopresis as the “failure to have regular bowel movements.”
Dr. Coleman also testified that, had he been consulted by an attorney in this case in 1998, 1999, or 2000, he would have been able and willing to express these same opinions and conclusions.
On cross-examination, Dr. Coleman testified that he did not interview Jane, her mother, defendant, Ritter, or Dr. Kerns. He came to the conclusion that the physical findings regarding Jane were not an indication of abuse based on her medical report and prior to viewing her photographs. He knows that Ritter has extensive experience in conducting exams of children suspected of sexual abuse while he has never personally conducted such exams, but he does not believe that Ritter has more expertise in the area. He is aware that his opinion is contrary to what Jane has said, and that many victims of sexual abuse do not exhibit any physical evidence of it. His opinion is simply that the physical examination did not disclose signs of sexual abuse or trauma.
Dr. Crawford testified as an expert on child sexual assault examinations that he reviewed the report of Jane’s physical examination, copies of her photographs, and the transcript of the trial addressing her medical findings. In his opinion, Jane’s narrow hymen is not necessarily evidence of prior trauma. Even when a narrow hymen is caused by trauma, when there are allegations that more than one individual did something, there is no way to identify which individual caused the trauma. In his opinion, the findings as to Jane had no forensic value.
Jane testified at trial that Carlos once touched her inappropriately by rubbing himself up against her, and that Carlos never did anything else to her at any other time.
Dr. Crawford also reviewed two different medical reports regarding Carlos, copies of his photographs, and the transcript of the trial testimony from Dr. Rosas addressing the medical findings. Dr. Rosas identified a non-acute, or old, injury to the perianal area. Dr. Crawford agrees with the conclusion by Dr. Rosas in the initial medical report that the findings of a hyper-pigmented area was a non-suspect finding. Dr. Crawford disagrees with Dr. Rosas’s trial testimony that the findings were evidence of scarring as it is not supported by anything he has seen himself or seen described in the literature.
Defendant argued that Drs. Coleman and Crawford disagree with Dr. Rosas’s trial testimony regarding Carlos and Dr. Kerns’s reports regarding Jane, and their testimony “creates a clear conflict with respect to the credibility of that evidence.” Defendant further argued that, if the defense had presented evidence that there was no basis to believe that Carlos exhibited scarring, the medical evidence would not have corroborated Carlos’s claims, which was required to bring the alleged offenses within the statute of limitations. Therefore, it was reasonably probable that a different result could have been obtained had this testimony been presented at trial.
The prosecutor argued that Jane testified at trial and was extensively cross-examined, that Jane identified defendant as her molester, that the cross-examination of Dr. Kerns pointed out the strengths and weaknesses of his testimony, and that defendant’s experts testified that sometimes there is no physical evidence when a child has been molested. “So, regardless of whether there was expert testimony on behalf of the defendant, if [Jane is] believed, that testimony really is irrelevant.” The prosecutor further argued that Jane’s testimony corroborated Carlos’s testimony, and that defendant was able to “undermine” Dr. Rosas’s testimony during cross-examination, therefore “[i]t doesn’t matter whether or not the defense would have brought in other so-called experts.” “[I]t’s the People’s position that there would be no change in the verdicts.”
The court took the matter under submission and then filed its written order on September 29, 2006. In the order the court noted that defendant “presented no testimony or evidence” regarding the second issue in the order to show cause. It struck the trial judge’s testimony, citing Weidner v. Thieret (7th Cir. 1991) 932 F.2d 626, and Ng v. Superior Court (1997) 52 Cal.App.4th 1010, disapproved on another point in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6. It stated again that it “made the assumption that the failure to call an expert to challenge the prosecution experts was below the professional norm and limited the hearing to an assessment of prejudice.” It found it “clear” that defendant “produced evidence at the writ hearing that contradicts the testimony of [the prosecution’s] expert witnesses at trial,” and that the issue was “whether such contradictions prejudice” defendant. It then ruled as follows.
“The People’s case was vigorously challenged by [defendant’s] counsel. He challenged the underlying premises for the conclusions asserted by Dr. Kerns and Dr. Rosas. He put on a significant defense which will be characterized as ‘alibi,’ though far more reaching. The trier of fact heard from all the parties involved: the two victims, the parties to whom they reported the molestations, the police officer, the doctors who examined them and the mother of the victims. The defense presented substantial evidence that the allegations simply could not have happened. [Defendant’s] mother, father, roommate and close friends both vouched for [defendant] and his time. [Defendant] also testified, denying the allegations. Indeed, when further information came out at trial, [defendant’s] attorney recalled each victim as well as victims’ mother to point out further inconsistencies in the evidence.”
“The prosecution’s experts had impressive credentials. Dr. Crawford’s credentials were also impressive whereas Dr. Coleman’s less so. It is apparent [defendant’s] strategy wasn’t so much to challenge the ‘experts’ with ‘experts’ (i.e., to wash them out) as to challenge the prosecution’s case with the numerous inconsistencies adroitly demonstrated by his cross-examination and by presentation of his witnesses.”
“Based on the foregoing, it is this court’s conclusion that [defendant] was not prejudiced by his attorney’s ‘failure’ to call competing experts with respect to Carlos but is prejudiced with respect to [Jane].”
“The petition is denied with respect to counts 13 through 32. The petition is granted as to counts 36 and 37; therefore, this court orders a new trial as to counts 36 and 37 only. The judgment and sentence as to counts 36 and 37, including the life sentence pursuant to Penal Code § 667.61(b-e) as to count 37 are therefore set aside.”
The People filed a timely notice of appeal from the trial court’s order.
DISCUSSION
The People contend that the trial court erred in both assuming that defendant’s trial counsel acted incompetently and in finding that defendant was prejudiced thereby. Defendant contends that the pleadings do not dispute that trial counsel failed to consult with any medical expert, and the trial court correctly assumed that such a failure was unreasonable. Defendant further contends that the record supports the finding that he was prejudiced by trial counsel’s failure to present his own expert testimony regarding Jane.
Defendant had the burden below of establishing ineffective assistance of trial counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436.) “To establish a violation of the constitutional right to effective assistance of counsel, a defendant must not only ‘identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,’ but he or she must also show that counsel’s deficient performance ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ (Strickland[, supra,] 466 U.S. 668, 686, 690; see also People v. Kipp (1998) 18 Cal.4th 349, 366.)” (People v. Earp (1999) 20 Cal.4th 826, 870.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
“Whether trial counsel performed competently, that is, ‘reasonabl[y] under prevailing professional norms’ (Strickland, supra, 466 U.S. at p. 688), presents a mixed question of fact and law. Such questions are ‘generally subject to independent review as predominately questions of law—especially so when constitutional rights are implicated’—and ‘include the ultimate issue, whether assistance was ineffective, and its components, whether counsel’s performance was inadequate and whether such inadequacy prejudiced the defense.’ [Citation.]” (In re Resendiz (2001) 25 Cal.4th 230, 248-249.) Accordingly, we are entitled “to undertake ‘an independent review of the record [citation] to determine whether [defendant] has established by a preponderance of substantial, credible evidence [citation] that his counsel’s performance was deficient and, if so, that [he] suffered prejudice.’ [Citation.]” (Id. at p. 249.)
“While our review of the record is independent and ‘we may reach a different conclusion on an independent examination of the evidence . . . even where the evidence is conflicting’ [citation], any factual determinations made below are ‘entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.’ [Citations.] On the other hand, if ‘our difference of opinion with the lower court . . . is not based on the credibility of live testimony, such deference is inappropriate.’ [Citations.]” (In re Resendiz, supra, 25 Cal.4th at p. 249.)
“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Strickland, supra, 466 U.S. at p. 689.)
“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Strickland, supra, 466 U.S. at p. 690.)
The decision to call witnesses is a matter of trial tactics and strategy which a reviewing court generally may not second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) “[T]he choice of which, and how many, of potential witnesses [to call] is precisely the type of choice which should not be subject to review by an appellate court.” (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “To sustain a claim of inadequate representation by reason of a failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him. [Citation.]” (People v. Hill (1969) 70 Cal.2d 678, 690.)
“[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.” (In re Marquez (1992) 1 Cal.4th 584, 602.) “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” (Strickland, supra, 466 U.S. at pp. 690-691; In re Jones (1996) 13 Cal.4th 552, 565.)
With these principles in mind, we have reviewed the record before us. As to the first prong of the Strickland test, deficient performance, the trial court “made the assumption that the failure to call an expert to challenge the prosecution experts was below the professional norm” based on its review of the petition, return, and traverse, “and limited the hearing to an assessment of prejudice.” We have reviewed the same record that was before the trial court and we conclude that the record before the trial court was insufficient as a matter of law to support its finding of deficient performance.
There is no competent evidence in the record that would support a finding that trial counsel failed to consult a medical expert. Trial counsel did not submit a declaration and did not testify at the evidentiary hearing. Habeas counsel’s declaration as to what trial counsel said to him is inadmissible hearsay that cannot support a prima facie case for habeas relief. (People v. Madaris (1981) 122 Cal.App.3d 234, 242 [appellate attorney’s sworn statement conveying an unsworn statement by trial counsel offered to prove the truth of the matter stated cannot support a prima facie case for habeas relief]; see also, People v. McCarthy (1986) 176 Cal.App.3d 593, 597 [allegations in the petition based on hearsay must be disregarded]; In re Fields (1990) 51 Cal.3d 1063, 1070 [a declaration cannot support a finding by a referee or an appellate court if it was excluded upon timely and proper objection or it was never offered into evidence at the evidentiary hearing].) Thus, we must presume that counsel’s decision to not call an expert to testify at trial was a matter of trial tactics and strategy (People v. Mitcham, supra, 1 Cal.4th at p. 1059), and, in order to grant habeas relief, the trial court had to find that defendant carried his burden of showing that counsel’s decision fell below what is reasonable under prevailing professional norms. (Strickland, supra, 466 U.S. at p. 688.)
The prosecutor had subpoenaed trial counsel, but did not present him as a witness due to the court’s ruling at the July 14, 2006 hearing.
Defendant’s theory of defense at trial was two part. First, defendant contended that he did not have access to the children, as they were not alone with him in his room. Second, defendant contended any touchings that may have occurred did not involve penetrating trauma. Counsel could have reasonably determined that calling an expert witness would not help, and might undermine, aspects of his defense.
As the court below found, counsel was able to “vigorously challenge[]” the prosecution’s case, including “challeng[ing] the underlying premises for the conclusions asserted by Dr. Kerns and Dr. Rosas.” Counsel was also able to point out inconsistencies in the testimony of the victims. In addition, counsel “put on a significant defense” and presented “substantial evidence that the allegations simply could not have happened” through several witnesses who “vouched for [defendant] and his time.” Defendant also testified, thus the judge who was the trier of fact “heard from all the parties involved.” And, as we stated in our opinion in defendant’s appeal, in denying defendant’s motion for a continuance in order to investigate a motion for new trial, the trial judge stated that she felt that trial counsel had prepared the case and had done a good job.
Conversely, the trier of fact would not have been required to accept the opinion of a defense expert, and would have been entitled to determine what weight, if any, to give such an opinion, and to weigh such opinion against conflicting expert testimony. (See Judicial Council of Cal. Crim. Jury Instns. (2006), CALCRIM No. 332.) In addition, the evidence against defendant at trial, apart from the expert testimony, was strong. Jane identified defendant as her molester and she was extensively cross-examined. Jane and Carlos testified that defendant committed similar sex offenses against them, in the same room of the same house, and they separately reported the abuse. And, Dr. Coleman testified at the hearing below that many victims of sexual abuse do not exhibit any physical evidence of it, and that he is aware that his opinion that there was nothing “depict[ing] signs of sexual penetration or trauma or molestation” is contrary to Jane’s testimony.
After independently reviewing the record before us, we cannot conclude that defendant carried his burden below of demonstrating that counsel’s failure to call an expert witness “ ‘fell below an objective standard of reasonableness.’ ” (In re Marquez, supra, 1 Cal.4th at p. 603.) Rather, we conclude it was not incompetent for defense counsel to favor a defense that “challenge[d] the prosecution’s case with the numerous inconsistencies adroitly demonstrated by his cross-examination and by his presentation of his witnesses” over one of “call[ing] competing experts.” While defendant, with the benefit of hindsight, makes a plausible argument that a defense expert may have been helpful, we will not second-guess trial counsel’s reasonable tactical decision to not call his own expert witness. (People v. Mitcham, supra, 1 Cal.4th at p. 1059; People v. Hill, supra, 70 Cal.2d at p. 690.)
Even if we were to assume that defendant carried his burden of showing deficient performance, we would find that defendant failed to carry his burden of showing prejudice, the second prong of the Strickland test. The trial court concluded that defendant “was not prejudiced by his attorney’s ‘failure’ to call competing experts with respect to Carlos but is prejudiced with respect to [Jane.]” It found that the “physical examination of Carlos for sexual abuse that had ended 6 years before cannot have much value,” whereas Jane’s physical examination occurred shortly after defendant’s last molestation of her. However, the testimony of defendant’s experts was intended to challenge the testimony of both the expert who had examined Jane and the expert who had examined Carlos, and thus to “wash them [both] out.”
Carlos and Jane, who were half-siblings, separately reported that defendant had molested them. The reported molestations involved similar acts under similar circumstances, in the same room of the same house. Therefore, Carlos’s and Jane’s testimony corroborated each other’s, and was sufficient to support defendant’s convictions, even without the expert testimony presented by the prosecution. In addition, defendant’s theory of defense as to both children was the same. Accordingly, we conclude that defendant has not shown that there is a reasonable probability that, had counsel presented expert testimony to challenge the prosecution’s experts, the result of the proceeding as to either Carlos or Jane would have been different. (Strickland, supra, 466 U.S. at p. 694.)
Defendant’s petition for writ of habeas corpus based on a claim that trial counsel provided ineffective assistance by failing to call an expert witness at trial must fail, and the trial court erred by granting the petition on that ground. (Strickland, supra, 466 U.S. at pp. 688-691, 694; People v. Mitcham, supra, 1 Cal.4th at p. 1059; People v. Hill, supra, 70 Cal.2d at p. 690.)
DISPOSITION
The trial court’s order granting the petition for a writ of habeas corpus and for a new trial on counts 36 and 37 is reversed. The matter is remanded to the trial court with directions to enter an order denying the petition and reinstating the judgment of conviction.
WE CONCUR: MIHARA, J., Duffy, J.