Opinion
A155203 A157332
11-15-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDRIA REYNOLDS, Defendant and Appellant. In re ALEXANDRIA REYNOLDS, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC202805)
Defendant Alexandria Reynolds was convicted of felony driving under the influence (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a)(1), count 1), felony driving with a blood-alcohol level of 0.08 percent or more (§§ 23152, subd. (b), 23550.5, subd. (a)(1), count 2), and misdemeanor driving with a suspended license (§ 14601.1, subd. (a), count 3). She now makes the following claims on appeal: (1) trial counsel rendered ineffective assistance because by failing to object to the admission of evidence that she refused to submit to a preliminary alcohol screening (PAS) test; and (2) the trial court erred by instructing the jury with the permissive inference provisions of CALCRIM Nos. 2110 and 2111.
All further statutory references are to the Vehicle Code unless otherwise specified.
In a consolidated petition for writ of habeas corpus, defendant raises the same ineffective assistance claim pertaining to the evidence of her refusal to submit to a PAS test.
We affirm the judgment and deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted defendant of violating section 23152, subdivisions (a) and (b), and section 14601.1, while the trial court found the alleged prior conviction allegation true. The court imposed sentences only for counts 1 and 2, and stayed execution of the sentence for count 2 pursuant to Penal Code section 654. The following is a summary of the relevant trial evidence and closing argument.
A. Trial Testimony
Around 9:50 a.m. on November 5, 2017, Adam Domash was driving away from home when he saw defendant's car at an intersection about 35 feet away. He assumed defendant saw him because nothing was obstructing the view, yet defendant pulled out right in front of him when he was about 15 feet away, forcing him to brake to avoid collision. Domash stayed about a car length behind defendant, who drove slightly faster than walking speed, which was the slowest Domash (a long-time resident of the area) had ever encountered on that road. Defendant repeatedly drifted from side to side on the road. She paused at a stop sign for a long time, about 10 seconds, then slowly turned onto a straight road, Cascade Drive.
While driving at jogging speed on this straight road, defendant continued to drift from side to side and twice drifted over a double yellow line, which caused oncoming traffic to slow down. After pausing at another stop sign for about 10 seconds, defendant eventually turned into the parking lot of a 7-Eleven by driving over the sidewalk curb rather than using either of the two driveway entrance ramps. It appeared to Domash that defendant hit her brake at the same moment her car's front wheels hit the cement block in front of a parking stall. Because defendant seemed to drive into the stall too fast, Domash thought she was going to drive through the glass front of the 7-Eleven. Domash testified that the entire time he followed the car, it consistently drifted inside and outside of its lane. After defendant stopped at the 7-Eleven, Domash went to a police station just across the street and reported what he had seen. He told police he thought the driver was an elderly woman having a medical episode.
The incident was reported at 9:56 a.m. At 9:58 a.m., Fairfax Police Officer Aaron Odom was dispatched to the 7-Eleven parking lot to investigate a silver vehicle whose driver was possibly under the influence. There were two silver vehicles in the parking lot, one of which was registered to defendant. Odom was acquainted with defendant and knew she was in treatment for alcohol abuse. Odom located defendant inside the store. He bumped shoulders with her as he walked past her, but she did not acknowledge or seem to know that they did so. Odom waited outside to speak to defendant. When she came outside, she seemed to not want to walk towards her vehicle, where Odom and another officer were standing. Instead, defendant walked as if she were going past it. Odom asked to speak with her, and they started talking at about 10:02 a.m.
This first interaction with Officer Odom began with defendant saying she had come from a grocery called "Whole Earth," and Odom correcting her that it is actually called "Good Earth." Odom testified Good Earth was in the opposite direction from where the dispatcher said defendant came from, i.e., near the Cascade residential area. Defendant told Odom she was on her way to Cascade. When Odom told defendant that someone reported her nearly driving over the parking berm into the 7-Eleven, defendant denied it. She indicated she would tell Odom what really happened, but then proceeded to talk about an unrelated incident where she drove over a berm at Good Earth and needed people to push her car over the berm.
At this point, Officer Odom asked defendant whether she drank alcohol in the last few hours. Defendant denied drinking and said she was in recovery and had not drunk alcohol for several days. Odom testified that something about defendant seemed abnormal, and that her speech seemed jumbled and slurred, a sign she was potentially intoxicated. When Odom told her she was jumbling her words, defendant responded she had been hit in the head and had several concussions.
Defendant agreed to do the horizontal gaze nystagmus test but had trouble following the instructions. She moved her head several times instead of just her eyes as instructed, and Officer Odom had to reinstruct her several times. Defendant's eyes were unable to track Odom's finger smoothly, indicating she had consumed alcohol. Odom again asked if she had drunk any alcohol, and testified he believed her denial at that juncture because he did not smell alcohol and because she said she was still in recovery. Odom, however, was concerned about her ability to drive a car because of what he had observed. At that point, without telling defendant it was voluntary, Odom asked if she would be willing to blow her breath into a "breathalyzer" machine (also known as a PAS test). She declined. Odom then asked if she would be willing to do "a few more tests," but she again declined.
Officer Odom testified that, although defendant seemed impaired during their first interaction, he did not think he had probable cause at that time to believe defendant was under the influence or to arrest her, because he had not seen her drive. But he was concerned about defendant's ability to drive safely, so he told her his concern and asked her to go to the park across the street and to sit and relax for at least an hour before driving again. When asked if that sounded fair, defendant said, "Yeah. Absolutely." She thanked Odom and walked toward the park carrying a half-gallon of milk, a cup of coffee, and her purse. This first contact ended at 10:09 a.m., and Odom's body camera footage of their interaction was admitted into evidence and presented to the jury.
After defendant walked away, Officer Odom entered the 7-Eleven and watched surveillance footage of the parking lot. On the video, which was admitted into evidence, Odom saw defendant's car drive over the curb into the parking lot, then drive onto the cement block in front of the parking stall before reversing off it. The video caused him to be more concerned. As Odom was walking to return to the police department, he saw defendant walking in the middle of the street, not using the available sidewalks on either side of the street. Odom made contact with defendant again, concerned that she might go to her car and drive and that she was not safe to be on the road. This second contact began at 10:15 a.m.
During this second interaction, Officer Odom observed that defendant's demeanor and speech were largely the same as before. He did, however, detect for the first time a moderate smell of alcohol. Odom testified he had not noticed an alcohol smell during their first conversation when the two were against the building, but during their second interaction the wind was blowing in his direction. During this interaction, defendant told Odom she relapsed about five days prior. Odom again asked several times if she had drunk more recently, imploring her to be honest and saying he would not judge her and this was part of his job. Odom asked, among other things, "You didn't have . . . an ounce of alcohol last night . . . [¶] . . . a little bit? . . . You didn't have a bottle with you at all or anything?" He asked if she drank in the last few hours or last night, or early this morning. Defendant said "no" to these questions, holding fast to her story about her most recent relapse. Odom's body camera footage of this interaction, which was introduced into evidence and played, showed a few minutes after these initial denials, however, defendant said she had two greyhound drinks the night before last.
Officer Odom then conducted several field sobriety tests with defendant's consent, starting at 10:22 a.m. Odom testified that field sobriety tests are designed to evaluate physical and mental acuity, and that inability to follow instructions is a sign of intoxication. Defendant's performance on the field sobriety tests was poor and indicated she was intoxicated. More specifically, Officer Odom described what happened when he conducted the heel-to-toe test. He explained to defendant that the starting position required her right foot be in front of her left foot in heel-to-toe fashion, that she should remain in that starting position until told otherwise, and that the test entailed her taking nine steps on an imaginary straight line in heel-to-toe fashion, pivoting 180 degrees, and then taking nine more steps in the same fashion. Odom thereafter demonstrated the test to defendant. Defendant was unable to maintain the starting position, and she did not take a single step in heel-to-toe fashion. She also exhibited difficulty with balance.
Officer Odom additionally conducted a one leg stand test which entailed holding one foot (of one's choice) about six inches off ground with hands by one's sides while counting and looking at one's toe. Odom told defendant if she lost her balance she could simply lift her leg back up and keep going, and he demonstrated the test for her. Defendant performed poorly, elevating her arms out by her sides to maintain balance, but losing her balance several times. Odom also conducted the "Romberg" test, which entailed counting to thirty in one's head while standing with feet together, hands at one's sides, and head tilted back with eyes closed. During this test, defendant counted to thirty-five seconds, which Odom testified is within an acceptable range, but she did not keep her eyes closed and she counted out loud, contrary to Odom's instructions.
After conducting the field sobriety tests, Officer Odom asked defendant a series of questions. Among other things, he asked defendant if she had eaten that day, where she had come from before she stopped at the 7-Eleven, and where she was heading. Defendant said she ate noodles and soup at Good Earth that morning, she had come there from Cascade, and she was headed back to Good Earth to get coffee. Odom again asked if she had anything to drink, and at this point defendant changed her story yet again, stating she drank about half a pint of vodka the night before but stopped drinking around 9:00 p.m. She said she drank in her car while parked on Cascade.
Officer Odom again asked defendant to take the PAS test, and this time defendant agreed. She did a first PAS test at 10:50 a.m., and her breath registered a breath-alcohol concentration of 0.231 percent. About four minutes later, she did a second PAS test, and her breath registered a breath-alcohol concentration of 0.241 percent.
A sergeant of the Fairfax Police Department who tests and calibrates PAS devices testified that the device Officer Odom used was tested several days before and after its use on defendant and that it would have been accurate when Odom used it. According to the sergeant's testimony, all PAS devices are calibrated to 0.02 percent; the device at issue was regularly tested for accuracy using a sample of gas at 0.082 percent; the device showed the sample gas was 0.080 percent on November 2, 2017, which was within the acceptable range; and the device showed the sample gas was 0.082 percent on November 12, 2017.
Officer Odom then arrested defendant. He testified that by this point he was 100 percent sure she had driven under the influence of alcohol and with a breath alcohol content higher than 0.08 percent based on his initial observations of her (including her slurred and jumbled words), his observations during their second contact, and her performance on the field sobriety tests. Odom testified there was no significant difference between defendant's demeanor, speech, and behavior during their first and second interactions. Defendant seemed equally impaired during their first and second interactions, and she did not appear to become more intoxicated, or rapidly intoxicated, during their second interaction.
After arresting her, Officer Odom searched and found no alcohol on defendant's person or in her purse. He did, however, discover an open and partially empty bottle of vodka in her car. He took defendant to jail where her blood was drawn at 12:09 p.m. The results of the blood draw showed her blood-alcohol level was 0.216 percent.
The prosecution presented testimony from an expert who tested defendant's blood sample and testified about the effects of alcohol. The expert asserted a hypothetical female weighing about 128 pounds who drinks one standard drink of alcohol—a standard drink being, for example, the amount of alcohol in 1.25 ounces of whiskey—would raise her alcohol concentration by 0.036 percent. It would take the same hypothetical woman 6.6 standard drinks to reach a blood-alcohol level of 0.24 percent. The expert opined that most people eliminate alcohol at the rate of 0.018 percent per hour, but there is variation, e.g., chronic drinkers can eliminate it faster, and people with impaired liver function eliminate it slower. The expert testified that a person's rate of alcohol absorption varies depending on things like whether a person has an empty stomach or is under stress. Although people can reach peak alcohol concentration as fast as 15 to 45 minutes on an empty stomach, people generally reach peak alcohol concentration between half an hour to an hour. Additionally, alcohol consumption and other things (such as head trauma) can cause nystagmus, and while nystagmus naturally occurs in a small percentage of the population, its natural occurrence is minimal and does not impact the efficacy of using nystagmus as a test to ferret out impairment. The expert also explained that alcohol "tolerance" does not mean a person is less mentally impaired, it means that a person can do practiced things without seeming impaired.
With regard to breath tests, the expert testified a person's breath alcohol concentration and blood alcohol concentration are essentially the same. The expert asserted one's breath alcohol concentration can be slightly higher than one's blood alcohol concentration when a person has just started drinking, but the difference does not last long as the body quickly reaches equilibrium; this happens so fast it is "very hard" to even capture in a laboratory setting. The expert testified an evidentiary breath sample requires two tests with results that are within 0.02 percent of each other in order to constitute a "valid test." When asked whether two breath samples taken four minutes apart might have the same or different results, the expert asserted they could be the same, but they could also be different because breath results depend on how long and hard a person blows into the testing instrument. The expert explained a person can never blow air showing a higher breath alcohol level than what they have, but they can blow air showing a lower breath alcohol level, for example, by blowing softly or only for the minimal time to produce a sample. In such cases, the subject produces only "upper respiratory air" and not "deep-lung air" (the latter being where gasses are exchanged and so produce more accurate results). The expert indicated that initial breath tests are "usually" lower than subsequent ones because the person being tested is not used to blowing into the instrument and does not produce "deep-lung air," but only "upper respiratory air." The expert also asserted it is "quite easy" not to blow out deep-lung air and thus produce a low result. When asked if one could tell whether someone is eliminating or absorbing alcohol by looking at two breath tests done about four minutes apart, the expert indicated one could not determine that because four minutes is too short a time lapse and any change in results could be attributable to some variation in the human subject, such as the subject blowing softer or harder into the testing device.
Defendant testified on her own behalf. She acknowledged she is an alcoholic who has relapsed over the years and has attended Alcoholics Anonymous since 2005. About a month before her arrest, she was involved in a domestic violence incident during which she was struck in the head. She said she last drank alcohol at about 9 o'clock the night before her first conversation with Officer Odom. When asked if she ate anything that day, she said she ate a medium sized container of noodles around 9 o'clock that morning.
Defendant testified she was not aware of Domash following her, and she drove as Domash witnessed because she was in an unfamiliar place and was distracted looking for and at her phone, searching for glasses, and adjusting the clock on her car. She also asserted that she typically hits the cement block in front of parking stalls because she has no sense of where the front wheels are on her car, which she has owned since early 2015. She testified she did not see or bump into Officer Odom in the 7-Eleven. When asked whether and why she initially declined to take a PAS test, defendant said she declined because she felt trapped and scared by how close Odom was. Also, she had not drunk anything so there was "no need to go any further." When Odom asked her to go to the park, she said she went and said "thank you" despite Odom being rude, domineering, and scaring her because "[t]hat's just manners." She testified she was afraid of Odom during this first interaction, because she had never before talked to officers in an investigative context. When pressed, however, defendant admitted that she had indeed previously spoken with police officers (e.g., the officer who recently took away her driver's license) and that she has suffered two prior felony convictions.
Defendant testified that, while she was at the park, she drank an entire ten-ounce bottle of juice mixed with vodka (which she put in her purse the night before) in less than a minute. About ten minutes after she drank the vodka, defendant—who weighed about 124 pounds that day—started to feel its effects. She then walked back to the 7-Eleven, where she re-encountered Officer Odom. She testified she felt significantly different during this post-park interaction with Odom, and was "rapidly getting more intoxicated" and could feel her blood "surging."
On the stand, defendant admitted lying to Officer Odom when she said she had not drunk anything recently when, in reality, she drank the night before. She further testified that during their second interaction, she never claimed that she had drunk alcohol at the park. When asked why she was untruthful to Odom about drinking at the park, she said she was ashamed.
B. Summary of the Prosecutor's Closing Argument and Rebuttal
During closing argument, the prosecutor began by discussing the first count, contending it was obvious defendant was under the influence based on how poorly she was driving. He argued at length and in detail about her poor driving, and played the 7-Eleven surveillance video showing her driving over the curb and onto the parking berm. In discussing the other evidence of impairment, he played the video of Officer Odom's first interaction with defendant and pointed out where defendant could be heard slurring and saying things that did not make sense. The prosecutor then highlighted defendant's performance on the horizontal gaze nystagmus test and her inability to follow directions.
At this point the prosecutor mentioned defendant's initial refusal to do the PAS test. The prosecutor explicitly stated defendant had the right to refuse the PAS test, but asked why she refused if it could exonerate her. The prosecutor then pointed out that defendant told Officer Odom his request that she go to the park to wait something off was fair and she agreed to it. The prosecutor argued: "If she is so innocent and not under the influence, why does she think it's completely fair that she go wait it off in the park? It doesn't make any sense. She knows she is under the influence. That's why she refuses the preliminary alcohol screening test, and it's why she agrees to go wait it off in the park." After this, the prosecutor did not further mention defendant's refusal to take the PAS test until later in his rebuttal.
Instead, the prosecutor focused on the evidence of defendant's impairment during the second interaction with Officer Odom. He noted that the signs of intoxication were very similar during both interactions, that defendant admitted to more recent drinking during the second interaction, and that Odom said he could now smell alcohol. The prosecutor argued that defendant did not seem more intoxicated during this second interaction, and indeed, she appeared to be making more sense at that point, as evidenced by her statement that she had come to the 7-Eleven from Cascade (which was corroborated by Domash), rather than from Good Earth (which she had claimed during her first interaction with Odom). The prosecutor played the body camera footage of the second interaction for the jury while arguing this, repeatedly encouraging the jurors to watch the video and decide for themselves. After discussing defendant's performance on the field sobriety tests, the prosecutor summarized the evidence of her mental and physical impairment. Specifically, he noted her driving, rambling, slurring, inability to do the tests and follow instructions, lack of balance, and nystagmus. He also discussed the issue of alcohol tolerance and the ability to appear unimpaired and have conversations, even while impaired. He did not, however, mention her initial PAS test refusal.
Moving on to the second count, the prosecutor noted the PAS device was tested for accuracy and referred to the PAS and blood test results. The prosecutor argued defendant's blood alcohol level was going down by the time she took the blood test, which was consistent with her appearing less impaired as the second interaction went on. He contended, at length, that her story about drinking at the park was unreasonable and self-serving, and emphasized that she never told the officers this story even though it would have been a complete defense.
During rebuttal, the prosecutor began by discussing the responsibility of the jurors to determine credibility and the things they should consider in making their determinations. Echoing the instruction that the jurors could disbelieve anything defendant said if they decided she deliberately lied about something significant, the prosecutor went on to enumerate the things defendant lied about. He started with the following: "She lied about being scared to talk to officers. She lied about being uncomfortable talking to officers. She lied about never having been in this kind of an investigation before." On this point, the prosecutor noted that contrary to her testimony, defendant ultimately admitted she had prior experience talking to and being investigated by officers, as she had twice been convicted of felonies and recently had her license taken by an officer. The prosecutor continued: "There was that lie. And it explains, or presumably explains, why she didn't take the preliminary alcohol screening test." Addressing defendant's claim that she was so scared of these officers she had to get away was a lie, the prosecutor pointed out she was making small talk with them at the very times she claimed she was scared. Then he stated: "It doesn't make sense. She lied about that. She refused the breathalyzer because she is under the influence, not because she's scared." These are the only mentions of the PAS test in the prosecutor's rebuttal.
The prosecutor went on to discuss and argue numerous other things he believed defendant lied about: defendant not knowing the area; her drinking history; and the reason why she was driving badly. Thereafter, the prosecutor argued other aspects of the case, including that the difference in the breath test results did not mean her alcohol level was rising.
DISCUSSION
A. Refusal to Submit to PAS Test
Defendant's first claim is that she suffered from ineffective assistance because trial counsel did not object when the prosecutor introduced testimony and video evidence of her initial refusal to take the PAS test, and did not object when the prosecutor discussed that refusal during closing argument. In support, defendant cites to People v. Jackson (2010) 189 Cal.App.4th 1461 (Jackson), for the proposition that evidence of a PAS test refusal is not admissible to show consciousness of guilt. (Id. at p. 1469.)
To prevail on a claim of ineffective assistance, a defendant must show both that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 & 694 (Strickland).)
With regard to the deficient performance prong, it bears emphasizing that the decision whether to object to inadmissible evidence is a tactical one. (People v. Hayes (1990) 52 Cal.3d 577, 621.) " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926 (Weaver), italics added.) Generally, "where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Id. at p. 926, italics added; see People v. Cunningham (2001) 25 Cal.4th 926, 1003 [" 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation [on the record] and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal' "]; People v. Avena (1996) 13 Cal.4th 394, 422.)
In this case, the appellate claim fails because the record does not disclose trial counsel's reasons for his failure to object, and a conceivable reason for that omission is apparent. The evidence against defendant was overwhelming and included: (1) Domash's observations of defendant's abysmal driving for the entire duration of the several minutes that he followed her; (2) the video of defendant driving over a curb into the 7-Eleven parking lot and slamming into the parking berm; (3) the video of defendant's first interaction with Officer Odom showing her slurring, rambling, and unable to follow instructions when doing the horizontal gaze nystagmus test; (4) her videotaped refusal to take the PAS test, as well as her refusal to take other field sobriety tests during her first contact with Odom; (5) the videos of both interactions with Odom showing defendant behaving in essentially the manner during each; (6) the videos showing defendant repeatedly lying to Odom about when she last drank until she eventually admitted she drank vodka just the night before; and (7) the evidence that defendant never claimed, prior to testifying, that she drank anything at the park. In the face of all this evidence, the chosen defense required that defendant testify and tell the jury her story, i.e., that she happened to have in her purse—and guzzled at the park in less than a minute—a ten-ounce bottle with enough vodka in it to get her breath alcohol level from zero to a 0.231 or 0.241.
Putting it bluntly, defendant's refusal to take the PAS test during her first encounter with Officer Odom was one of many negative and difficult facts the defense in this case had to counter. Had the PAS test refusal been excluded, the defense still would have had to contend with the videotaped evidence that defendant also refused to take any other field sobriety tests. Her refusal to do so was clearly admissible to support consciousness of guilt, and such evidence could be used to make the same arguments that the prosecutor made in referencing defendant's PAS test refusal. (Jackson, supra, 189 Cal.App.4th at p. 1469 [stating as a "general principle that evidence of a refusal to submit to a standard field sobriety test is admissible as consciousness of guilt"].)
It is therefore conceivable that trial counsel made the difficult yet reasonable tactical decision not to object to the admission of the initial PAS test refusal, concluding that doing so was not likely to be very helpful and that instead the better defense course was to: (1) have defendant, who was going to have to testify anyway, address and explain why she refused the PAS test (which she got on the stand and did, twice stating she refused it because she was not intoxicated, an explanation that defense counsel reiterated during closing argument); (2) emphasize the PAS test was voluntary (which Odom and the prosecutor acknowledged during the trial and closing argument, and trial counsel argued during his closing); and (3) question the inference to be drawn from the PAS test refusal by pointing out that Odom let defendant go even after she refused it and believed he lacked probable cause to believe she was impaired at that point.
As the United States Supreme Court has explained, " '[s]urmounting Strickland's high bar is never an easy task.' [Citation.] An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Harrington v. Richter (2011) 562 U.S. 86, 105 (Harrington), italics added.) And as the California Supreme Court similarly recognizes, "in the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal. [Citation.] Here, defense counsel did not object; rather, he countered the prosecution argument with argument of his own. . . . We will not second-guess such tactics." (People v. Frierson (1991) 53 Cal.3d 730, 749, italics added.) Applying these principles, we must conclude that defendant fails to establish deficient performance.
Defendant's ineffective assistance claim fails for the additional reason that defendant cannot establish prejudice under Strickland.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citations.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citations.] The likelihood of a different result must be substantial, not just conceivable." (Harrington, supra, 562 U.S. at pp. 111-112, italics added.) "In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like. A defendant has no entitlement to the luck of a lawless decisionmaker . . . . The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision." (Strickland, supra, 466 U.S. at pp. 694-695, italics added.)
Here, defendant has not established a reasonable likelihood of a different result had evidence of the PAS test refusal been excluded. Again, even without that evidence, it remained the case that defendant refused to submit to other field sobriety tests. This was captured on video, as was defendant's eventual performance of the field sobriety tests, which showed significant impairment. Had the PAS test refusal been excluded, the prosecutor could have instead pointed to defendant's refusal to submit to the other field sobriety tests to make the same arguments about her lying and consciousness of guilt.
And as indicated, the prosecution presented overwhelming evidence of defendant's guilt. The testimony of Domash describing the five to six minutes or so that he observed defendant driving was particularly damaging: he saw that she cut him off and nearly caused him to collide with her; she drove extremely slow and repeatedly drifted from side to side on the road; she twice crossed double yellow lines into oncoming traffic; she stopped for relatively lengthy periods at two stop signs; she drove over the curb into the 7-Eleven parking lot; and she looked like she was going to drive straight into the front glass wall of the 7-Eleven as she accelerated into a parking stall before hitting the front cement block. Domash testified that the entire time he followed her car, it consistently drifted inside and outside of its lane. To corroborate Domash's testimony, the prosecution introduced into evidence and played for the jury the surveillance video showing defendant driving over the curb into the 7-Eleven parking lot and then onto the parking berm. Defendant never contested that she drove as Domash described. Instead, she testified there was no reason to doubt what Domash saw and tried to explain her poor driving by saying she was in a strange neighborhood and distracted (e.g., looking for her glasses and phone, and looking at her phone). While that explanation might account for some poor driving, it strains credulity to view it as explaining several solid minutes of it.
Officer Odom's testimony also provided compelling evidence against defendant. During Odom's first encounter with defendant, the two bumped shoulders in the 7-Eleven, but she displayed no acknowledgment of the contact as people typically do. When defendant exited the 7-Eleven, she seemed to avoid walking towards her vehicle where Odom and another officer were waiting for her until Odom called out to her. Defendant's speech during this first encounter was jumbled and slurred. She claimed she had come from "Whole Earth"—actually "Good Earth"—which was the opposite direction of the Cascade area where the dispatcher said she was coming from; later, during her second interaction with Odom, she would say she had come from Cascade. Defendant, who admitted she was an alcoholic for many years, had trouble following simple instructions for the horizontal gaze nystagmus test and exhibited nystagmus, an indicator of alcohol consumption. Aside from her initial refusal to do the PAS test, defendant initially refused to do any other field sobriety tests when Odom asked her to. Then, despite denying any alcohol consumption, defendant said Odom's request for her to go sit in park for at least an hour was fair, and she agreed to do so without complaint.
Both of the interactions with Officer Odom were captured on video. Importantly, the videos supported both Odom's testimony and the prosecutor's argument that defendant's demeanor, speech, and behavior appeared the same during the first and second conversations. The videos do not show defendant becoming "rapidly intoxicated" during their second interaction, as defendant claimed. To the contrary, these videos countered her story that she guzzled enough vodka at the park to go from a zero percent breath alcohol level to about 0.231 or 0.241 percent.
The prosecution also presented uncontradicted evidence from an expert that two breath samples taken four minutes apart could yield different results based simply on the conduct of the person taking the test, e.g., the strength with which the testing subject blows into the breath testing device, or the length of time the subject blows into the device. This expert indicated that people's first test results are "usually" lower than their actual alcohol level because people are unused to doing such tests and do not blow out "deep-lung air." The expert asserted it is "quite easy" not to blow out deep-lung air and thus to produce a lower result. Further, one could not determine whether someone is eliminating or absorbing alcohol by looking at two breath tests done about four minutes apart. In particular, four minutes is too short a time lapse, and any change in test results could simply be attributable to some variation in the human subject, such as the strength the subject uses to blow into the device.
Finally, defendant damaged her own credibility on the stand. When asked about her alleged fear of Officer Odom, which defense counsel suggested was the reason she agreed to go to the park, defendant said no less than four times that she had never talked to officers in an investigative context before. This, however, was a lie, and defendant would soon admit on the stand that she had indeed talked with police officers before and that she had previously suffered two felony convictions. Moreover, defendant repeatedly lied during both of her interactions with Odom when she denied drinking any more recently than several days beforehand. Not only was this captured on video, but defendant herself testified that these were lies.
Defendant makes much of the prosecutor's mention of defendant's refusal to submit to a PAS test during his closing argument and rebuttal. To be sure, during his closing argument the prosecutor contended defendant refused the PAS test because she knew she was under the influence. But that mention of the PAS test refusal was minor in significance when viewing the closing argument as a whole; the prosecutor did not hammer on that point or indicate such evidence was critical to the case. The prosecutor also acknowledged the test was voluntary, and mentioned it only as part of his larger argument about the many pieces of evidence of impairment in this case, e.g., defendant's alarmingly poor driving, her slurring and saying nonsensical things, her inability to follow instructions, the presence of nystagmus, her willingness to go to the park upon Odom's request, and the similarity of her behavior and demeanor during the first and second interaction. The strength of all this other evidence of impairment, and the prosecutor's ability to present it, was independent of the evidence that defendant initially refused the PAS test.
The prosecutor's mention of defendant's initial PAS test refusal during rebuttal was likewise inconsequential. Specifically, his argument that defendant lied about refusing the PAS test because she was scared, and that she refused it because she was under the influence, was only a small part of a larger argument about all of the reasons why defendant lacked credibility: (1) she lied about being scared to talk to officers and about never having been investigated before; (2) she lied about not knowing the area she was driving in; (3) she lied about her drinking history and never claimed she drank at the park until she testified; and (4) she lied when she claimed she was driving badly because she was distracted looking at or for her phone or her glasses. The prosecutor's ability to press home this other evidence about defendant's lack of credibility was not dependent on the evidence of defendant's initial PAS test refusal, and as previously mentioned, even had trial counsel objected, the prosecutor could just as easily have made a similar argument based on the videotaped and uncontested evidence of defendant's initial refusal to undergo other field sobriety tests.
On a final note, the defense argued a rising alcohol defense to the jury, pointing to the increase in alcohol content percentage from the first PAS test to the second, and claimed defendant could be seen becoming more intoxicated in the video of the second encounter when the two PAS tests were administered. But the jury heard all the evidence and argument in this case, and it watched the videos and had the opportunity to evaluate the testimony and demeanor of the lay and expert witnesses on the stand. After being instructed that it was the ultimate arbiter of credibility, the jury rejected the rising alcohol defense. The current suggestion that the jury would have reached a different conclusion had it simply not heard about the initial PAS test refusal is implausible.
Given the record before us, we see no reasonable probability that the outcome of this case would have been different had evidence and argument of the PAS test refusal been omitted. (Strickland, supra, 466 U.S. at p. 695; Harrington, supra, 562 U.S. at pp. 111-112.) Setting aside the PAS test refusal, there was strong and ample evidence of guilt in this case.
B. Instructional Error
Defendant next claims the trial court erred by instructing the jury with what she calls the "permissive inference provisions" of CALCRIM Nos. 2110 and 2111. The relevant language in CALCRIM No. 2110 is bracketed and reads: "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense." Similarly, the relevant language in CALCRIM No. 2111 is bracketed and reads: "If the People have proved beyond a reasonable doubt that a sample of the defendant's (blood/breath) was taken within three hours of the defendant's [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant's blood alcohol level was 0.08 percent or more at the time of the alleged offense."
Citing Coffey v. Shiomoto (2015) 60 Cal.4th 1198 (Coffey), defendant contends these permissive inference provisions are based on statutory rebuttable presumptions affecting the burden of producing evidence. (See §§ 23152, subd. (b) & 23610, subd. (a)(3); Coffey, supra, 60 Cal.4th at p. 1209; People v. McNeal (2009) 46 Cal.4th 1183, 1199.) Under Evidence Code section 604, such presumptions are inapplicable when evidence is introduced to contradict the fact being presumed (here, that defendant drove under the influence or with a blood alcohol level of 0.08 or more). In this case, defendant testified she did not drink until after her first interaction with Officer Odom. Therefore, defendant reasons, the court should not have instructed with the permissive inference provisions of CALCRIM Nos. 2110 and 2111.
This claim of instructional error presents a question of law which we review independently. (People v. Alvarez (1996) 14 Cal.4th 155, 218.) We find no error.
Defendant admits the issue was not raised below, but argues it is reviewable under Penal Code section 1259 because it affected her substantial rights. The People take the position that this claim was forfeited under the doctrine of invited error since defense counsel expressly agreed to the trial court instructing with the provisions, and presumably did so because they properly state the law. The People, however, also correctly acknowledge that application of the invited error doctrine requires an apparent tactical purpose in defense counsel's agreement or acquiescence in the jury instruction. Because the record fails to reflect a tactical reason for trial counsel's acquiescence to the instructions, we will review the claim on the merits. --------
The argument defendant puts forth has twice been rejected: first in People v. Beltran (2007) 157 Cal.App.4th 235 (Beltran), and again in People v. Yushchuk (2018) 28 Cal.App.5th 120 (Yushchuk).
In Beltran, Division Four of this court held that a trial court may properly instruct with CALJIC No. 12.61.1—which was nearly identical to the permissive inference provision of CALCRIM No. 2111—despite there being evidence "rebutting" the inference. (Beltran, supra, 157 Cal.App.4th at p. 244 ["when used in appropriate cases, permissive inferences do not shift the burden of production or lower the prosecution's burden of proof"]; see CALJIC No. 12.61.1 (Oct. 2005 ed.), p. 857.) Evidence Code section 604 was found inapplicable because it applies to rebuttable presumptions, and the instruction had been phrased to provide only for a permissive inference in light of People v. Roder (1983) 33 Cal.3d 491. (Beltran, at pp. 241-244.)
Similarly, Yushchuk concluded "the presence of conflicting evidence on the predicate question of whether there is sufficient evidence to trigger the inference instructions does not preclude giving the instructions." (Yushchuk, supra, 28 Cal.App.5th at p. 129.) The court noted the defendant was incorrectly conflating "the rules about rebuttable presumptions with those of permissive inferences." (Id. at p. 128.)
We see no reason to depart from these cases. Defendant's reliance on Coffey, supra, 60 Cal.4th 1198, is misplaced. Coffey did not discuss the permissive inference provisions of CALCRIM Nos. 2110 and 2111, much less apply Evidence Code section 604 to those permissive inference provisions. To the contrary, Coffey addressed the application of the statutory rebuttable presumption to administrative proceedings, applied section 604 to the statutory rebuttable presumption only, and even recognized that "if evidence sufficient to negate the presumed fact is presented, the 'presumption disappears' [citation] and 'has no further effect' [citation], although 'inferences may nevertheless be drawn from the same circumstances that gave rise to the presumption in the first place' [citations]." (Coffey, at pp. 1208-1211, italics added.)
For the reasons stated, we reject defendant's claim of instructional error.
C. Habeas Corpus Petition
In part A, ante, we reject defendant's appellate claim that trial counsel rendered ineffective assistance by failing to object to the prosecutor's evidence and argument of her initial refusal to take the PAS test. In reiterating that claim in her consolidated petition for writ of habeas corpus, defendant provides a declaration from appellate counsel representing that trial counsel told him "he did not recall considering or researching whether the evidence of [defendant] refusing the PAS test was objectionable, and . . . did not recall why exactly he did not object to the evidence" but "he knew that he did not deliberately decline to object to the evidence for the purpose of underscoring [defendant's] defense." Trial counsel supposedly also "emphasized that declining to object to the evidence for this purpose would not have been a reasonable strategic decision given how damaging the evidence was to [defendant's] case."
Appellate counsel asserts that trial counsel initially agreed to submit a declaration in support of a habeas corpus petition, but he later informed appellate counsel he was no longer amenable to doing so. While trial counsel's failure to provide a declaration may indicate an unwillingness to cooperate in establishing his deficient performance, we cannot ignore the possibility that trial counsel disagrees with appellate counsel's characterizations of what was said, or that trial counsel has information that would undermine defendant's attempt to overturn her conviction. As previously discussed, in this case, there was a conceivable reason for counsel's failure to object.
Regardless, trial counsel's failure to provide a declaration does not relieve defendant of her burden to establish a prima facie case of ineffective assistance, e.g., by offering other readily available evidence that would support her claim of deficient performance, such as declarations from other attorneys. (People v. Duvall (1995) 9 Cal.4th 464, 474.) Furthermore, and as discussed in part A, ante, given the appellate record, it is not reasonably probable that the outcome would have been different had trial counsel successfully objected to the challenged evidence and argument. As such, we find defendant fails to state a prima facie case for relief. (Id. at pp. 474-475.) The petition for writ of habeas corpus is therefore denied. (See id. at p. 474 [" 'For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence' "].)
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
/s/_________
Fujisaki, J. I CONCUR: /s/_________
Siggins, P.J.
PETROU, J., concurring in part and dissenting in part:
I concur with my colleagues that the judgment should be affirmed on direct appeal. However, I believe defendant should be given the opportunity to pursue her claim of ineffective assistance of counsel in a habeas corpus proceeding in the trial court.
Defendant argues she is entitled to a new trial because the prosecutor was allowed to elicit evidence of her refusal to take a preliminary alcohol screening (PAS) test during her first encounter with Officer Odom (Odom) and to later refer to that evidence in his closing arguments. She correctly contends the admission of the evidence and the prosecutor's closing arguments violated this court's decision in People v. Jackson (2010) 189 Cal.App.4th 1461 (Jackson), in which we specifically held that evidence of a refusal to take a PAS test should not be presented to a jury and a prosecutor may not use such a refusal as evidence of consciousness of guilt. (Id. at pp. 1466-1469 [noting that the right to refuse to take a PAS test is conferred by Veh. Code § 23612].)
During the prosecution's case in chief, the prosecutor elicited testimony from Odom that during his first encounter with defendant she declined to take a PAS test. Odom acknowledged that he did not explain to defendant that a PAS test was voluntary; he "just asked" her to take the test. Following this testimony, the jury was shown Odom's body camera video of this interaction, in which he asks defendant if she would be "willing to blow into a breathalyzer machine to make sure I know you're not under the influence of any type of alcohol before I let you drive away?" and defendant responds, "No." Odom then asks if she would be willing to do "a few more tests," and defendant declines.
During the defense case, defendant testified she declined to take the PAS test because she felt "trapped," scared, and "really had enough of [Odom]." She further explained that when Odom asked her to take the test, he "was so close to me [and] kept interrupting me. And I felt that I wasn't under the influence. I hadn't drunk anything, and there was no need to go any further."
The prosecutor commented on defendant's refusal to take the PAS test in his closing argument, asking the jury to consider the circumstances as evidence of her consciousness of guilt (challenged portions are italicized):
"And then in the first contact, [defendant] refuses to do the [PAS] test. She refuses to do the breathalyzer. That's fine. She has that right. But why? If you're being questioned about DUI, if you're a recovering alcoholic, if the officer thinks you're under the influence, that would completely exonerate you. Sure, I'll do a breathalyzer test. Of course. But she, for some reason, doesn't do that.
"On the other hand, when they tell her to kind of go sleep it off because you're looking a little impaired or under the influence or confused or something, she thinks it's completely fair for her to wait it off. And she thinks it's absolutely proper for her to wait it out.
"If she is so innocent and not under the influence, why does she think it's completely fair that she go wait it off in the park? It doesn't make any sense. She knows she is under the influence. That's why she refuses the [PAS] test."
In contrast, defense counsel made no mention of defendant's refusal to take the PAS test during his closing argument. Despite the lack of any defense argument, in rebuttal the prosecutor again asked the jury to consider defendant's refusal as consciousness of guilt:
"If you decide that the witness deliberately lied about something significant in the case, you should consider not believing anything that witness said. [Defendant] lied about being scared to talk to officers. She lied about being uncomfortable talking to officers. She lied about never having been in this kind of an investigation situation before.
"She has talked to officers. She is fine talking to officers. She has been convicted of two prior felonies. She has obviously been investigated. . . . These are not infractions. These are not misdemeanors. Two felony convictions. She has been investigated.
"There was that lie. And it explains, or presumably explains, why she didn't take the [PAS] test, that she was so scared of the officers she had to get away. As she is walking away from them, she brings up, hey, did you all hear? Did you see the collision that happened yesterday? She wants to talk to the officers more. She reaches out to Officer Odom right after she was so afraid that she refused the
breathalyzer test. It doesn't make sense. She lied about that. She refused the breathalyzer because she is under the influence, not because she's scared."
Defense counsel did not object to the questioning of defendant regarding her refusal to take the PAS test, the introduction of the video of that interaction, or the prosecutor's argument in closing. As defendant impliedly concedes, her counsel's failure to lodge appropriate objections forfeited the claims of error on direct appeal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118 [defendant "failed to object at trial on the ground he now advances [erroneous admission of evidence of defendant's post arrest silence following Miranda warnings] and therefore has forfeited the contention for purposes of this appeal"]; see, also, Id. at p. 119 ["[b]y failing to make contemporaneous objection[s] [to the prosecutor's closing argument], where the record supports no contention that to do so would have been futile, [defendant] failed to preserve . . . claims of prosecutorial misconduct"].)
Instead, defendant argues her claims of error may be raised on direct appeal because her counsel's failures to make appropriate objections constituted ineffective assistance as her entire defense hinged on persuading the jury, at least to the point of creating a reasonable doubt, that she had not consumed alcohol before her first encounter with Odom. Of course, had the evidence been suppressed, the jury would not have heard defendant's testimony confirming the refusal to take the PAS test or viewed the video of that interaction. The jury also would not have heard the prosecutor's closing arguments urging the jury to consider defendant's refusal as consciousness of guilt that she had consumed alcohol before her first encounter with Odom.
"[A] defendant claiming ineffective assistance of counsel under the federal or state Constitutions must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome." (People v. Osband (1996) 13 Cal.4th 622, 700.) The two components do not need to be addressed in any particular order and "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
In first addressing the prejudice prong, as our high court suggests, I conclude defendant has met her burden of demonstrating prima facie that the admission of the challenged evidence was prejudicial. Not every piece of evidence carries equal weight and her central defense of not having consumed alcohol prior to the first encounter with Odom was significantly undermined by the jury hearing—and seeing—defendant's refusal to take the PAS test. The only other evidence regarding field sobriety tests would have been defendant's one-word response to one vague question posed by Odom, evidence that is clearly not of the same magnitude as the specific refusal to take the PAS test. The remaining evidence was equipoise, and in the main circumstantial.
The significance of the refusal to take the PAS test was underlined by the prosecutor's decision to place specific and repeated emphasis in closing on defendant's refusal to take the test, a clear violation of the law prohibiting its use. (See, e.g., People v. Esqueda (1993) 17 Cal.App.4th 1450, 1487 [erroneous admission of defendant's statements and playing of taped interviews was not harmless beyond a reasonable doubt where, among other things, remaining evidence of defendant's involvement in killing was mainly circumstantial, and during closing argument the prosecutor heavily relied upon defendant's trial testimony and the interview statements to undermine the defense case].) In no way could the prosecutor have made as forceful an argument based solely on defendant's refusal to submit to Odom's request that she do "a few more tests," which is of course why the prosecutor focused on her refusal to take a PAS test during his closing arguments without reference to the other tests. Therefore, I find there is a reasonable probability plaintiff would have received a better outcome had the jurors not heard the evidence of her refusal to take the PAS test coupled with the prosecutor's closing arguments.
As to the deficient performance prong, a defendant must demonstrate that "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Defendant argues, and I agree, that the record reveals no satisfactory explanation for trial counsel's failure to seek to exclude the challenged evidence and strike the prosecutor's closing arguments under Jackson, supra, 189 Cal.App.4th 1461. The majority opines that defense counsel's failure to seek to exclude the evidence can be viewed as a tactical decision on the basis that, because the remaining evidence was overwhelming, defendant had to take the stand to tell her story. I cannot agree with this assessment because exclusion of the challenged evidence in no way would have precluded defendant from taking the stand. Also, assuming defense counsel believed defendant had to take the stand and testify regarding the refusal to take the PAS test, nothing precluded defense counsel from later objecting to the prosecutor's reliance on the evidence as consciousness of guilt.
Nonetheless, I decline to find defendant has met her burden on direct appeal of demonstrating that counsel's performance fell below the standard of reasonableness for the simple reason that my inability to understand counsel's conduct "cannot be a basis for inferring that he was wrong." (People v. Garrison (1966) 246 Cal.App.2d 343, 351.) "The decisions which counsel must make [both before and] in the courtroom will necessarily depend in part upon what he then knows about the case, . . . [and] [t]here may be considerations not shown by the record, which could never be communicated to the reviewing court as a basis for [counsel's] decision[s]." (Ibid.; see People v. Riel (2000) 22 Cal.4th 1153, 1197 ["competent counsel may often choose to forego even a valid objection"].)
However, defendant should be given the opportunity to pursue her claim in a habeas corpus proceeding in the trial court. In support of her petition filed in this court defendant submitted a declaration of her appellate counsel in which he indicates he diligently sought, but was unable to secure, a declaration from trial counsel. If the matter were remanded to the trial court, there would be "an opportunity in an evidentiary hearing to have trial counsel fully describe his . . . reasons for acting or failing to act in the manner complained of." (People v. Pope (1979) 23 Cal.3d 412, 426 (Pope), overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Once trial counsel has been given an opportunity to explain the reasons for his conduct, the trial court would be "in a position to intelligently evaluate whether counsel's acts or omissions were within the range of reasonable competence." (Pope, supra, at p. 426.) Given the unique circumstances of this case in which significant yet impermissible evidence was admitted and argued, without objection, I believe this is the appropriate result.
I concur in part and dissent in part.
/s/_________
Petrou, J.