People v. Soderstrom

Full title: THE PEOPLE, Plaintiff and Respondent, v. RANDY LEE SODERSTROM, Defendant…

Court: California Court of Appeals, Fourth District, Third Division

Date published: Jun 20, 2007

No. G034723 (Cal. Ct. App. Jun. 20, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. RANDY LEE SODERSTROM, Defendant and Appellant. G034723 California Court of Appeal, Fourth District, Third Division June 20, 2007

Appeal from a judgment of the Superior Court of Orange County, James P. Marion, Judge., Super. Ct. No. 02HF0547.

Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County.

Sally P. Brajevich, and Leonard J. Klaif, under appointment by the Court of Appeal, and Randy Lee Soderstrom, in propria persona, for Defendant, Petitioner and Appellant.

Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SILLS, P. J.

Randy Lee Soderstrom appeals from the judgment sending him to prison for a total of 12 years after a jury found him guilty of attempted voluntary manslaughter, attempted first degree robbery, assault with a firearm and residential burglary. (See Pen. Code, §§ 192, 211, 213, 245, subd. (b), 459, 664.)¹ All of these counts were enhanced because he personally used a firearm in the commission of the offenses. (See §§ 12022.5, subd. (a), 12022.53, subd. (b).) The jury acquitted him of attempted murder and four counts of attempted robbery; and one count of making a criminal threat was dismissed before any evidence was presented to the jury.

1 All further section references are to the Penal Code unless otherwise stated.

On appeal, Soderstrom contends the trial court erred in its jury instructions regarding the mental intent required for voluntary manslaughter. He then argues the evidence is insufficient to sustain the conviction for attempted voluntary manslaughter, and the trial court erred when it denied him trial transcripts to prepare his motions for new trial and to relieve appointed counsel. (See People v. Marsden (1970) 2 Cal.3d 118; §§ 1179, 1200, 1201, subd. (b), 1202.) We affirm the judgment.

In the 310-page petition for writ of habeas corpus, which we hereby order to be consolidated with the appeal on our own motion and for good cause, Soderstrom raises various factual disputes. However, subsequent to our appointing him counsel,² he continued to file multiple pleadings³ which we have included in his original petition and address here to forestall future petitions on the same grounds.

2 Original appointed counsel in the appeal was relieved via an order to vacate the appointment; in the same order, we appointed new counsel for both the habeas proceeding and the appeal. Thus, although Soderstrom filed this petition for writ of habeas corpus in propria persona, he was represented by counsel thereafter.

3 Before appointed counsel filed Petitioner’s Traverse re State Habeas Corpus Petition, Soderstrom filed three of his own supplemental sets of papers: (1) on June 13, 2005, a 20-paged brief with six attached exhibits, entitled “Supplemental Brief I;” (2)on January 31, 2006, a 29-paged “Supplement to Petition for Writ of Habeas Corpus” with seven attached appendices; (3) on April 11, 2006, a 46-paged “Supplement (II) to Petition for Writ of Habeas Corpus” with four attached exhibits. The traverse of the return was filed by appointed counsel for Petitioner on November 15, 2006. Soderstrom then filed a “Motion to Augment the Record” and for postconviction discovery on November 28, 2006, in pro. per. This motion is denied as the requested materials for augmentation are unnecessary for either the appeal or this petition. As for his postconviction discovery request, Soderstrom must avail himself of the remedies directly available in the lower court. (See 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 78, pp. 137-138.)

He alleges in the petition that the prosecutor committed misconduct in a variety of ways: (1) by failing to disclose prosecution witnesses’ criminal records and a tape of a police interview of a prosecution witness; (2) by suppressing exculpatory evidence at the preliminary hearing; (3) by presenting and relying on allegedly false testimony; (4) by relying and presenting a case alleged by him to have been ineptly investigated; and (5) by making improper comments in its argument. Soderstrom also attacks his trial counsel’s representation, contending the attorney ineffectively represented him by failing to fully cross-examine multiple prosecution witnesses, to investigate potentially helpful information in cross-examining prosecution witnesses, to voir dire the jury panel as to possible racial bias or animus, and to investigate or develop a mental defense to the charges or his incompetency to stand trial. He also contends trial counsel rendered ineffective assistance by forcing him to testify even though Soderstrom had told him he desired to remain silent. He then attempts to attack the trial court’s rulings regarding three instructions (see CALJIC Nos. 2.71, 2.72, 9.40) and its evidentiary ruling that the prosecution could present a firearm demonstration. After fully reviewing all materials, including his motion to augment the record which we deny, we deny the writ.

FACTS

A group of acquaintances, most of whom abused various drugs, gathered in April 2002 at the residence of Wayne Dennis Corder, Jr. for a party to watch a Lakers game. Corder—who testified under a grant of transactional immunity due to the drug issues—shared the premises with Perry O’Keefe, Darren Smeltzer and Anthony Montana. Corder and O’Keefe had their girlfriends as guests for the night and other people arrived throughout the evening, including Soderstrom, although he had not been invited.

Corder had known Soderstrom for about two years, and occasionally the two men had “partied” together, meaning they would share drugs. Corder had also sold drugs throughout that period but only to people he trusted, and Soderstrom was not one of those he trusted. Corder insisted that he never asked Soderstrom to sell drugs for him. According to Corder, their relationship was one of a casual acquaintanceship in which Corder had given him small amounts of drugs on infrequent occasions.

Corder and Soderstrom, as well as the other party-goers,⁴ used cocaine that night. The party ended at around 1:00 a.m., and the residents and their guests retired. At around 3:30 a.m., they were aroused by loud knocking on the front door: It was Soderstrom, who stood at the threshold, refusing to answer Corder when he asked his purpose for being there. Fearful that the police might be chasing Soderstrom, Corder and Smeltzer walked to the kitchen window to see if there were officers surrounding the place. As they turned back to the entry, they saw Soderstrom standing in the doorway, aiming a gun at them with both hands.

4 Jamie Marquez denied using drugs at any time but knew that O’Keefe had a history of drug use.

Corder immediately lifted his hands into the air and said, “Whoa!” Soderstrom’s response was to order him to “Shut up!” About this time, O’Keefe emerged from his bedroom, and Soderstrom ordered him down onto his knees. Immediately after this, Soderstrom ordered the women who were still in the two bedrooms to join the men on the floor. When Corder’s girlfriend, Jill Carl, began crying, Soderstrom threatened to shoot her if she wasn’t silent.

Corder again tried to engage Soderstrom in conversation, asking him, “I thought we were friends.” Soderstrom’s response was that he was desperate, adding “this is what I do for a living.” He demanded they give him $5000.⁵ Corder did not have that much money,⁶ but told Soderstrom that he had it in order to pacify him.

5 Corder testified Soderstrom demanded $5000 but Jill Carl testified Soderstrom asked for $5000 immediately and then $1000 a week thereafter. Moreover, Carl later told a defense investigator that she really had not heard Soderstrom demand any set amount. O’Keefe was unsure if Soderstrom demanded $5000 or $1000.

6 Carl testified that Corder tended to brag about having money but most of it was not true: He would talk about taking trips to Hawaii and wear expensive clothes, but most of it was just “talk.”

Soderstrom pulled out a roll of duct tape from his backpack and demanded Corder bind everyone with it. When he learned there was one more person in another bedroom, he ordered O’Keefe’s girlfriend, Jamie Marquez, to awaken Montana and bring him out. As Soderstrom watched Marquez go towards the back bedroom,⁷ Corder attempted to tackle Soderstrom. They struggled as Corder tried to overpower the man, but Soderstrom maintained control over the gun and hissed, “You’re dead.” Corder then heard a “click” from Soderstrom pulling the trigger, while the barrel of the gun was next to Corder’s left ear. Corder then heard a loud and long ringing in his ear, but he kept a firm grip on the hand holding the gun.

7 Marquez escaped by walking down the darkened hallway towards Montana’s room until she was out of sight, and then ducking into Corder’s bedroom instead of entering Montana’s room. She attempted to telephone the police from Corder’s bedroom phone, but it did not work. She then managed to escape via the bedroom window and ran for help. She heard what she thought was a gunshot, and after confirming that the police would be called, ran back to Corder’s place, spying Soderstrom as he fled, covered with blood.

In the interim, Smeltzer managed to grab Corder’s football helmet from a table and struck Soderstrom in the head with it as forcefully as he could. Soderstrom seemed to be weakened by the blow but continued to grasp the gun in his hand. Corder demanded he release the weapon, but Soderstrom did not obey. Corder then bit him on the forearm, while Smeltzer continued to strike Soderstrom with the helmet. Finally, Soderstrom released the gun which Corder then propelled across the room, beyond Soderstrom’s reach. While Smeltzer continued hitting Soderstrom with the helmet, Corder was able to retrieve the gun which Soderstrom told him was not loaded.

Angered by all that had happened, Corder crossed the room with the gun in his hand and began hitting Soderstrom in the head with it. After receiving six or seven blows, Soderstrom rose and ran for the front door. Corder pursued him as did Smeltzer, both of whom reached Soderstrom before he was able to open the door. They both began raining blows on Soderstrom’s head which appeared to burst with a spray of blood. Nonetheless, Soderstrom was able to get out of the door, flee to his car and drive away.

While Corder, Smeltzer and Soderstrom struggled, O’Keefe reached a cordless telephone and called for help. The emergency dispatcher recorded this call, and it was played for the jury. On the tape, O’Keefe’s voice could be heard crying that they were being robbed at gunpoint.

In his trial testimony, Corder admitted that he lied at the preliminary hearing when he testified about the following subjects: (1) his prior use and sales of drugs; (2) the presence and use of drugs at the Lakers party that night; (3) his continued use of drugs after that night, resulting in his arrest and conviction for possessing cocaine and heroin while driving under the influence of drugs and alcohol; (4) his prior sales of drugs to Soderstrom before that night; and (5) his use of drugs at the time of the preliminary hearing.

Newport Beach Police Officer Mario Montero arrived at Corder’s place, having been waved down by Corder a short distance from the residence. When he arrived, he spotted a backpack on the floor which contained a ski cap or mask, a fanny pack, .45 caliber bullets, and a knife. Nearby, a .45 caliber, semiautomatic Glock handgun was lying on the floor, with its trigger cocked.

An officer ejected the gun’s magazine, and then pulled the slide back to ensure no bullet remained in the chamber. The magazine removed from the gun held nine live rounds and one spent casing. A weapons expert found the gun was operable.

Outside the home, a blood trail led from the doorway area to a spot a short distance away, where the blood spots ended. A deoxyribonucleic acid (DNA) sample was taken from some of the blood splatters which later was compared to a blood sample drawn from Soderstrom, and they “matched.”

Soderstrom testified in his own defense. He admitted he had a prior felony conviction for perjury, which was a crime of moral turpitude. He also admitted he used drugs, naming Corder as his dealer from whom he bought drugs in the past. After losing his job at American Express, Soderstrom became one of Corder’s drug sellers, which resulted in his owing Corder $12,000 after a planned transaction failed in 2001. He had to pay off this debt by selling drugs for Corder exclusively.

According to Soderstrom, he was invited to the Lakers party with the understanding that he would also be expected to make a cocaine delivery. Once at the party, however, Corder handed him a gun and told him to rob a cocaine dealer of a quarter kilogram of cocaine later that night. Soderstrom was uneasy about this request and returned to Corder’s place about 4:00 a.m. to inform Corder that he would not do it.

Corder told him he had to do it; otherwise they would both be killed. Soderstrom continued to hesitate, prompting Corder to aim the gun at Soderstrom and threaten him. Corder insisted that Soderstrom still owed him $5000, and this debt had to be paid immediately. Suddenly, Soderstrom grabbed the gun from Corder, and fearing an assault by the other people in the room, ordered all of them onto the floor. He denied ever demanding money from any of them; and he professed that he never even tried to fire the gun. He specifically denied ever robbing anyone that night.

DISCUSSION

II. THE APPEAL

A. Instruction on the Intent for Attempted Voluntary Manslaughter

The trial court instructed the jury that a lesser included offense to the charged crime of attempted murder was an attempt to commit voluntary manslaughter. (CALJIC Nos. 8.37, 8.40, 8.50, 17.10, as given.) These instructions were given with the express agreement of defense counsel. Nonetheless, Soderstrom now argues that the instructions were misleading because they failed to clearly mandate the jury find he harbored an intent to kill before rendering a verdict of attempted voluntary manslaughter.

The trial court told the jury that the “. . . crime of attempted voluntary manslaughter is lesser to that of attempted murder charged in Count 1. . . .” (CALJIC No. 17.10, as given.) This directive was followed with the simple definition that the “crime of attempted manslaughter [was] the unlawful attempted killing of a human being without malice aforethought.” (CALJIC No. 8.37, as given.) This description was preceded with the mandate that “[a]n attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. . . .” (CALJIC No. 6.00, as given.)

Attempted voluntary manslaughter was then further defined as the “unlawful[] kill[ing of] another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life[,]” having the following elements: “1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] 4. The perpetrator’s conduct resulted in the unlawful killing. [¶] A killing is unlawful, if it was not justifiable.” (CALJIC No. 8.40, as given.)

Finally, the court established the distinction between murder and manslaughter when it stated that “murder requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.” (CALJIC No. 8.50, as given.)

Although the defense waived this instructional complaint by expressly agreeing with the court’s set of instructions on lesser included offenses and by failing to craft and request any clarifying or amplifying instructions (see People v. Welch (1999) 20 Cal.4th 701, 757), we address it nonetheless because the trial court has a responsibility to give accurate instruction on all elements of the offenses sua sponte. (See United States v. Gaudin (1995) 515 U.S. 506, 522-523; People v. Sanchez (1950) 35 Cal.2d 522, 528.)

Soderstrom leads us to the decision from the Fifth District, People v. Montes (2003) 112 Cal.App.4th 1543, in which the reviewing court found a similar attempted voluntary manslaughter instruction in error: The jury should have been directly told its responsibility to find that the defendant had the specific intent to kill in order to return a guilty verdict for attempted voluntary manslaughter. (Id. at pp. 1551-1552.) The trial court in Montes, like the lower court here, modified the standard definition of voluntary manslaughter found in CALJIC Nos. 8.37 and 8.40 by inserting the word, “attempted,” before the crime but not adding the requisite specific intent to achieve the crime into the elements. (Id. at pp. 1546-1547.)

In other words, the Montes court held that an attempt to commit voluntary manslaughter requires the specific intent to kill the victim even though the statutory definition of voluntary manslaughter fails to require such a mental element. (Id. at pp. 1548-1549; see People v. Lasko (2000) 23 Cal.4th 101, 104; Pen. Code, § 192.) Based on the Montes holding, an attempted voluntary manslaughter cannot be committed by engaging in conduct “in conscious disregard for human life” as is the statutory definition for the crime of voluntary manslaughter if attempted and completed. (Id. at p. 1549-1550.) The holding rested on the rule that an attempted crime must be done with the specific intent to complete that crime. Thus, even though an intent to kill is not an element of voluntary manslaughter, it is absolutely essential to prove attempted voluntary manslaughter. (Ibid.)

The trial court erred in failing to instruct the jury that attempted manslaughter requires the perpetrator to have the specific intent to kill someone.⁸ A person cannot specifically intend to kill another through mere reckless conduct; it requires the intent to kill. The question remains whether the error is one in which a miscarriage of justice must be shown to warrant reversal (cf. People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const. art. VI, § 13), or if it must be harmless beyond a reasonable doubt to affirm. (Cf. Chapman v. California (1967) 386 U.S. 18.) The Attorney General argues the harmless error standard applies in assessing instructional errors, as delineated in the California Constitution article VI, section 13. Soderstrom merely argues reversal is required in this case, without differentiating the standard to be employed.

8 We observe that another instruction, not given in this case, was already added to the collection of pattern instructions known as CALJIC in accordance with the Montes opinion at the time of Soderstrom’s trial: CALJIC No. 8.41. The instruction specifically addressed this issue, declaring that an attempted voluntary manslaughter required “[t]hat the person had the specific intent to kill the other person.” (CALJIC No. 8.41 (April 2006 ed.).)

The Montes court held the instructional error must be reviewed under the Watson standard. (See People v. Montes, supra, 112 Cal.App.4th at 1552.) Under either standard, reversal was not warranted here: The prosecutor directed the jury in her argument that it had to find a specific intent to kill to reach a verdict of attempted voluntary manslaughter. Moreover, the evidence clearly supported the ultimate finding: Placing a gun next to a person’s head and pulling the trigger after hissing, “You’re dead!” meets anyone’s standard of proof of an intent to kill.

B. Sufficiency of Evidence to Sustain Attempted Voluntary Manslaughter

Soderstrom contends the evidence is insufficient to sustain the conviction as the record is devoid of proof that he intended to kill Corder. Specifically, he emphasizes that there is no proof that he ever fired the gun. And if he did, he only did it to scare Corder, not to harm him. It was irrelevant, he argues, that he made threats to kill Corder because he really only intended to frighten Corder into paying him the money and releasing him from his involuntary servitude.

As has been often repeated, to determine the sufficiency of evidence to sustain a conviction, we review the evidence in the light most favorable to the verdict, drawing all reasonable inferences from the evidence, and accepting all credibility assessments as made by the trier of fact below, to see if any reasonable trier of fact could have found all elements of the offense beyond a reasonable doubt. (See People v. Carpenter (1997) 15 Cal.4th 312, 387; People v. Marshall (1997) 15 Cal.4th 1, 34.)

Soderstrom’s argument rests on his own version of events, ignoring all facts supportive of the jury’s findings. Two of the witnesses testified to hearing a “click” emanate from the gun, immediately after Corder heard Soderstrom say, “You’re dead!” Moreover, this fact was corroborated by the officers who found the gun with nine live rounds in the magazine and one spent casing, and the witnesses who testified they heard a gun discharge that night. Even though the jury rejected the charge of attempted murder, it found he committed the above acts by convicting him of attempted voluntary manslaughter. The presumption in favor of the judgment applies under such facts.

C. Denial of Trial Transcripts

Soderstrom contends the trial court erred when it denied his request for personal copies of the trial transcripts following his conviction but before judgment was imposed. His request rested on his desire to bring a motion for new trial and substitution of appointed counsel, based on his belief that trial counsel had ineffectively represented him. Soderstrom concedes an indigent defendant does not have an absolute right to a personal copy of the trial transcript to prepare a new trial motion. (Cf. People v. Bizieff (1991) 226 Cal.App.3d 1689, 1700.) Nonetheless, he characterizes the court’s denial of his request as depriving him of a fair trial because such a transcript may be essential to bring a motion at a critical stage. (Ibid.) That stage was met in his case because his attorney allegedly would not assist him in preparing such a motion simply because he was attacking that counsel’s competency.⁹

9 Soderstrom’s third supplemental brief to the consolidated habeas petition filed in propria persona expands on this issue which was already and properly raised by appellate counsel in this appeal. He contends his amplified argument is necessary because “strong meritorious issues are conspicuously absent” from the opening brief. This does not appear to be an accurate representation: Soderstrom reiterates at length discussions in which the court heard and then denied Soderstrom’s motions to substitute appointed counsel and for a personal copy of the trial transcripts. However, his motion for new trial was explicitly denied as well, although Soderstrom contends he was denied any opportunity to argue the motion. This contention is not borne out by the record as the trial court filed the handwritten motion for new trial after the reasons for that motion were argued in the Marsden hearing. There was no “summary” denial, and the trial court heard and received all of Soderstrom’s allegations.

The main argument Soderstrom makes is that his efforts in raising the motion were “unduly hampered” without the transcript. He contends he could not recall in depth and detail all the instances of incompetence, although he had been present throughout the trial. Moreover, he posits that his indigency was undisputed, and thus, a copy should have been provided to him.

Soderstrom’s counsel informed the court on the original date for sentencing that Soderstrom desired to bring a motion for new trial and a “habeas motion” (sic), adding that his client wanted another attorney appointed for him. A hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 was conducted, resulting in the request’s denial.

Two weeks later, another Marsden hearing was held, and Soderstrom’s motions for substitution of counsel and new trial were denied.¹⁰ On the same day, Soderstrom filed a handwritten document alleging prosecutorial misconduct, ineffective assistance of counsel, judicial error in evidentiary rulings and insufficiency of evidence. In this written argument, he contended a personal copy of the full trial transcript was necessary for him to prove each of the alleged errors and to assist him in asserting them.

10 Soderstrom fails to understand that he received an opportunity to argue the grounds for the new trial motion in his Marsden hearing because the basis for the new trial was the alleged inadequacies of trial counsel presented in the Marsden hearing. Thus, his reliance on People v. Braxton (2005) 34 Cal.4th 798 is misplaced: The trial court received and filed his handwritten motion for new trial and heard the arguments allegedly in support of it although it was in the context of the Marsden motion. The trial court first denied the Marsden request, specifically ruling against Soderstrom’s allegation that trial counsel had ineffectively represented him. The court then applied that finding to the new trial motion, denying it as well.

“An indigent defendant ‘is not entitled, as a matter of absolute right, to a full reporter’s transcript of his trial proceedings for his lawyer’s use in connection with a motion for a new trial; but, since a motion for a new trial is an integral part of the trial itself, a full reporter’s transcript must be furnished to all defendants . . . whenever necessary for effective representation by counsel at that important stage of the proceeding.’ [Citation.] There are no mechanical tests for deciding when the denial of transcripts for a motion for new trial is so arbitrary as to violate due process or to constitute a denial of effective representation. Each case must be considered on its own peculiar facts and circumstances.” (People v. Bizieff, supra, 226 Cal.App.3d at p. 1700 [italics added], quoting from People v. Lopez (1969) 1 Cal.App.3d 78, 83.)

The trial court properly denied Soderstrom’s request. The transcript was not needed for counsel to prepare and present the motion; it was entirely for the benefit of Soderstrom to prepare a motion despite his counsel’s rejection of such a motion and despite the trial court’s rejection of Soderstrom’s claims against counsel made under the Marsden seal.

In both Bizieff and Lopez, similar denials for such transcripts were upheld in spite of the fact that the requests were made by new counsel for the two defendants, and those attorneys had not been present during their clients’ trials. Noting that accurate transcripts are indeed necessary for a criminal appeal or retrial, the appellate court emphasized that no statutory right to such a transcript exists for the purpose of a new trial motion. (People v. Lopez, supra, 1 Cal.App.3d at 81; People v. Bizieff, supra, 226 Cal.App.3d at 1699.) Moreover, the need for such a transcript is not as great for a motion for new trial as it is for an appeal because the defense and the trial judge are normally present at the trial, and the motion will be heard and ruled on “at a time when the testimony is still fresh in everyone’s mind.” (Bizieff, supra, 226 Cal.App.3d at 1700; Lopez, supra, 1 Cal.App.3d at 82.)

Although Soderstrom made allegations against his trial counsel, the court rejected those allegations by denying the Marsden motions; and there was no showing that trial counsel refused to consult with him on the preparation of the motion. Clearly, the lack of the transcript did not impede or obstruct the preparation of Soderstrom’s motion because he completed and filed it on the day of the second Marsden hearing.

“[I]f we were to hold that full trial transcripts must be provided to defendants, rich or poor, in every case in which new trial motions are made or contemplated, we would not only add to the tremendous burden which the trial courts of this state are already bearing, but in courts with heavily congested criminal trial calendars and a scarcity of qualified court reporters, we could even cause the wheels of justice to come to a grinding halt.” (People v. Lopez, supra, 1 Cal.app.3d at p. 83.) Because due process does not require such a procedural right, trial transcripts for the purpose of preparation of new trial motions should be provided only in the very rare circumstances of extreme need and justification, such as “the untimely death of the trial lawyer or the judge who presided at the trial . . . .” (Ibid.)

As no such extreme need or justification was provided, the trial court properly denied the request for the transcript.

II. THE PETITION FOR WRIT

A. Prosecutorial Misconduct

Soderstrom petitions us for a writ of habeas corpus, alleging many mistakes were made by the prosecutor and prosecution team. We group these allegations into five main categories and deny the petition without the need for any further hearing.

1. Failure to Disclose

Soderstrom alleges the prosecutor failed to disclose that O’Keefe—characterized by him as the “key prosecution witness”—had “prior felony convictions for conspiracy to sell [large amounts] of cocaine” and an out-of-state conviction for possession of cocaine. He also contends the prosecutor failed to disclose a taped police interview of O’Keefe, in which O’Keefe allegedly made statements that exculpated Soderstrom. In that regard, Soderstrom alleges that a written report of the interview, provided to the defense before the preliminary hearing, contained incriminatory statements by O’Keefe which were never made. Finally, Soderstrom acknowledges the defense received a copy of the taped interview but not until the day O’Keefe testified, thus rendering it useless for impeachment and untimely under the discovery orders.

The record fails to support Soderstrom’s claims regarding O’Keefe’s prior felony convictions. On the record but before the jury was selected, the parties discussed O’Keefe’s prior convictions, and the prosecutor stated that all discovery had been met concerning all of the prosecution witnesses’ felony records. Moreover, two years before the trial commenced, the defense had formally requested information concerning both prior convictions, specifically describing them as the “conviction for possession of cocaine in Las Vegas, NV on 10/11/99” and the “conviction on 2/12/90 of PC 182 [conspiracy] and 11350 [possession of cocaine] in Case C-756818” in Orange County, thus indicating the defense was fully aware of the charges, dates and sites of both prior convictions early in the case.¹¹ Moreover, when information of prior convictions for the purpose of impeaching a witness is requested, it is not the prosecution’s duty to provide background materials on those prior convictions: The proof of the convictions is all that is required. (See People v. Allen (1986) 42 Cal.3d 1222, 1270; see § 1054.1, subd. (d).)

11 In the petition, Soderstrom contends the tape of O’Keefe’s police interview included information exculpatory of Soderstrom and inconsistent with O’Keefe’s trial testimony. Thus, O’Keefe’s testimony could have been impeached had the prosecution timely complied with the discovery orders and provided the tape to the defense before trial. But the taped interview incriminated Soderstrom far more than it exculpated him: At trial, O’Keefe testified he could not hear any “click” of the handgun during the struggle between Soderstrom and Corder. In the taped interview, he told the officer he did hear the gun “click,” proving Soderstrom pulled the trigger on Corder.

Finally, O’Keefe was not the pivotal witness Soderstrom now makes him out to be.¹² Clearly, Corder was the witness whose testimony was most incriminating and whose credibility was most subject to attack. O’Keefe corroborated Corder’s testimony in some particulars, but he was not present when Soderstrom first pulled a gun on Corder and Smeltzer. Therefore, O’Keefe was unable to contribute in any way to support Soderstrom’s main point that Corder was the one who initially pulled the gun on him. Secondly, O’Keefe’s trial testimony failed to corroborate Corder’s story in that O’Keefe said he could not hear if Soderstrom threatened to kill Corder or if the handgun’s trigger was ever pulled. Had the taped interview been admitted into evidence or even discussed on cross-examination, that very corroboration would have been provided: O’Keefe stated in that taped interview that Soderstrom had threatened Corder and then pulled the trigger on the gun.

12 Soderstrom argues that the Orange County case involved a conspiracy to sell two kilos of cocaine for $34,000.00 in 1990. Had these details been presented to the jury, he argues, it would have believed that O’Keefe and Corder were major traffickers in cocaine, thus confirming Soderstrom’s story that he was being forced to sell drugs by Corder. As noted above, the information requested of the prosecution was the existence of the prior convictions for purposes of impeachment due to their felonious status. Thus, the details behind those convictions were not required to be divulged without the explicit necessity proffered to the court in the form of a motion. Finally, there is nothing to support Soderstrom’s allegation that a 1990 conviction for conspiracy to sell cocaine proves that O’Keefe—much less Corder—was engaged in such activity at the time of this incident, 12 years later.

2. Suppressing Exculpatory Evidence

(a) O’Keefe’s Taped Interview

Soderstrom alleges that the prosecutor intentionally suppressed a taped recording of a pretrial interview of O’Keefe in which he allegedly made “both exculpatory and inconsistent statements regarding the issue of [Soderstrom’s] guilt . . . .” Soderstrom says the prosecutor provided a report referring to, and allegedly summarizing this interview at the time of Soderstrom’s preliminary hearing. However, this report allegedly misrepresented O’Keefe’s statements, thus misleading the defense into believing O’Keefe’s testimony was consistent with the earlier interview. Moreover, the prosecutor failed to provide the actual tape until the day of O’Keefe’s testimony at trial which was far too belated for purposes of impeaching O’Keefe’s trial testimony because it could not be studied before O’Keefe testified, and its inconsistencies with the report were left undiscovered due to the tape’s untimely delivery. The result of this allegedly intentional misrepresentation and failure to divulge was to deprive Soderstrom of a substantial right at his preliminary hearing¹³ and a subsequent fair trial.

13 We note that O’Keefe did not testify at the preliminary hearing. Only an officer and Corder were called to testify, and O’Keefe’s statements to the officers were never mentioned in the preliminary hearing.

Soderstrom argues that the significance of the statements is clear: In this interview, O’Keefe allegedly told the detective he heard a click indicating the trigger was pulled immediately after Soderstrom was overheard saying that he was going to kill Corder. O’Keefe failed to testify to these critical facts, saying instead that there was too much noise and commotion to hear either the click of the gun or a discharge, and he failed to recall hearing any threat allegedly made by Soderstrom.

Soderstrom contends the prosecution intentionally suppressed certain key points in O’Keefe’s interview because they would have exculpated him. For instance: (1) O’Keefe said Corder was a drug dealer; (2) the report of the interview failed to refer to this fact; and (3) Corder testified at the preliminary hearing that he was not a drug dealer and from this the magistrate concluded Corder was a credible, truthful witness, holding Soderstrom to answer on all charges.

The record fails to support Soderstrom’s allegations on any point. O’Keefe did not say Corder was a drug dealer in the taped interview; the report of the interview accurately reported the essential details of the taped interview; and the magistrate never made any reference or conclusion regarding Corder’s credibility in his conclusion to bind Soderstrom over on the charges.

(b) Corder’s Inconsistencies

Soderstrom also argues that Corder was arrested on drug sale charges after his preliminary hearing testimony but before trial. Because of this arrest, the prosecutor granted him immunity in exchange for his testimony against Soderstrom, and Corder then admitted he had lied at the preliminary hearing as to the drug dealing. Soderstrom maintains this admission was inadequate because Corder allegedly continued to lie about other matters in his preliminary hearing testimony, such as never having fired a handgun and not having given Soderstrom permission to enter the residence on the morning in question.¹⁴

14 In his second supplemental brief, Soderstrom alleges that Corder’s prior conviction from 2000 involved the possession of heroin, and not hashish as originally reported. This allegation is a non-issue: Mere drug possession—and the substance is irrelevant—is not a crime of moral turpitude. Thus, this conviction cannot be used to impeach a witness, regardless whether it was for heroin or hashish possession. (See Evid. Code, § 788; People v. Castro (1985) 38 Cal.3d 301, 306.)

Again, the record fails to support any of Soderstrom’s allegations. In the preliminary hearing, Corder testified he hadfired a handgun once before but did not know whether it was a Glock firearm. At trial, he testified he fired a gun once before, in the company of his father, but the gun was a rifle. He was then cross-examined as to this inconsistency. He said he did not remember being specifically asked about firing a handgun; he explained he could “have meant I fired a gun before. I don’t have a handgun because I’ve only went to a firing range with my father, that’s the only time I fired a gun in my life.” He conceded he was “probably mistaken.” Finally, at trial Corder testified he did not “allow” Soderstrom to enter the house that early morning, yet conceded he had left the door open when he and Smeltzer went to check out the kitchen window, apparently giving Soderstrom the opportunity to enter behind them.¹⁵

15 It is also noted that although O’Keefe was not in the room when Corder and Smeltzer opened the door to Soderstrom in the early morning hours, he overheard Smeltzer talking and concluded from this eavesdropping that Smeltzer was permitting Soderstrom to enter the room.

Thus, each of the alleged falsities was examined at trial, giving the jury a full opportunity to assess Corder’s credibility in an accurate light.¹⁶ Moreover, there is no indication that any of the allegations were intentionally misrepresented by the prosecutor, or that the taped interview was in any substantive way inconsistent with the written report delivered to the defense before the preliminary hearing. Finally, nothing argued here indicates that the magistrate would have reached a different conclusion had these inconsistencies regarding the handgun or the entry into the house been presented at that preliminary hearing. The magistrate noted in his ruling that there were questions in the case suggesting that, in the magistrate’s mind, a negotiated disposition was appropriate. But the magistrate also noted that there was evidence to support each of the elements of the charges.

16 In his first supplemental brief, Soderstrom contends he has learned that Corder twice tested positive for drugs between the time he commenced his probation on his drug and alcohol-influenced driving case and when he testified in Soderstrom’s trial. He contends the prosecutor intentionally elicited false testimony at that trial when she asked Corder whether he had used drugs since his arrest. He assumes the prosecutor knew of those drug tests and purposely chose to mislead the jury as to Corder’s continued abuse of drugs. This issue is addressed under the next category, entitled “3. Presenting False Testimony.”

Most importantly, allegations of errors occurring in the preliminary hearing are not cognizable on appeal unless shown to have deprived the defendant of a fair trial. (See generally People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 230, pp. 439-441.) No such showing has even been attempted here. Soderstrom merely argues the magistrate would have surely rendered a different ruling had these matters been presented to him, and thus, he would never have had to go to trial. Such an argument fails to show that his trial was fundamentally unfair which is the prerequisite for prejudice.

(c) Jamie Marquez’s Arrest

In Soderstrom’s second supplemental brief, he contends the prosecutor suppressed potentially exculpatory evidence concerning O’Keefe’s girlfriend, Jamie Marquez. He presents a copy of a document charging O’Keefe with the drug possession case in November 1999 in Las Vegas, Nev. This complaint also names Jamie Marquez as a codefendant. From this, Soderstrom extrapolates that Marquez could have been impeached with these felony charges had the prosecution divulged all exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83 as required.

Soderstrom fails to meet the threshold showing necessary for a Brady claim: For impeachment evidence, there must be information of a felony conviction. No such evidence exists for Marquez. Based on anecdotal rumor, Soderstrom alleges that Marquez and O’Keefe both pleaded guilty to the same offer made by the prosecutor in Las Vegas and received a 30-day jail sentence. Assuming that to be true, that would only support the allegation of a misdemeanor conviction, not a felony. (See People v. Vessell (1995) 36 Cal.App.4th 285, 291-294.) Misdemeanor convictions cannot be used to impeach a witness.¹⁷ On both substantive and technical grounds, Soderstrom has failed to meet the showing necessary for a Brady issue.

17 See Evidence Code section 788; see also People v. Wheeler (1990) 4 Cal.4th 284, 288-293.

3. Presenting False Testimony

Soderstrom contends the prosecutor “elicited false testimony from a key witness at trial,” namely Corder. He extrapolates the prosecutor’s bad faith from the fact the same prosecutor questioned Corder at both the trial and the preliminary hearing in which Corder denied drug use or sales¹⁸ and denied Soderstrom carried a bag when he entered the party.

18 Soderstrom also lists various trivial inconsistencies in Corder’s testimony, such as whether Corder noticed anything in Soderstrom’s hands at the door, a topic fully covered on cross-examination at trial.

Soderstrom fails to comprehend that witnesses often testify in slightly—or even greatly—different ways between a preliminary hearing and the resulting trial. This disparity does not necessarily equate with a prosecutor’s subornation of perjured testimony. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1242 [“The petitions point to a number of contradictions in [a witness’s] statements on the stand in this and other cases. However, one cannot state a prima facie case of perjury or concealment simply by showing inconsistencies in the witness’s testimony.”].) And it would be faulty lawyering if the prosecutor had not argued that the bag found at the scene was left there by Soderstrom, considering witnesses other than Corder testified they had seen Soderstrom with it at the party and had seen Soderstrom withdraw the duct tape from it with which he made Corder bind the others. (See generally People v. Lawley (2002) 27 Cal.4th 102, 156 [prosecutor entitled to comment on all evidence in the record properly admitted by the court in arguing defendant’s guilt].)

In one of Soderstrom’s supplemental briefs, he alleges the prosecutor presented and argued knowingly false information. Specifically, he discovered that between the time Corder was arrested and convicted for cocaine possession while driving under the influence and Soderstrom’s trial in which Corder testified under a grant of immunity, Corder had twice tested positive for drug use. Thus, he argues, Corder’s testimony at trial that he stopped using drugs entirely after spending time in jail for the cocaine possession was a lie, knowingly presented by the prosecution.

Soderstrom’s information fails to show the prosecutor even knew of the drug testing by the probation officer much less knew of the results before Corder’s testimony in Soderstrom’s trial. Soderstrom attached the probation officer’s pleading reflecting a filing date of May 2005. Soderstrom’s trial occurred in August 2004. Thus, the probation officer, who is not a member of the prosecution team but an adjunct to the court, may not have even reported the two tests to anyone before the May 2005 pleading in which the first violation of probation was brought against Corder.

4. Deficient Investigation

Soderstrom contends his right to a fair trial “was compromised” when certain law enforcement officers, searching a backpack found at the scene, found and seized various items without covering their hands with gloves. Soderstrom also alleges the officers were in the presence of Corder while searching the backpack and discussed the items with him before concluding they belonged to Soderstrom. Soderstrom emphasizes no fingerprints were recovered from any of the items seized from the backpack, although three latent prints, never matched to anyone, were lifted from the duct tape roll Soderstrom allegedly handed to Corder during the incident. Finally, a few hairs found on the ski mask in the backpack were never tested and compared with his genetic typing. According to Soderstrom, such an “inappropriate investigation” deprived him of a fair trial.

The core of this issue—the failure to search for exculpatory evidence—has already been raised by Soderstrom and denied previously by this Court in a petition treated as a petition for writ of mandate or prohibition. Soderstrom then petitioned the California Supreme Court which likewise rejected his petition.¹⁹ It is law of the case that the issue was either factually unsupported or unmeritorious.²⁰ (See In re Clark (1993) 5 Cal.4th 750, 767 [“the court will not consider repeated applications for habeas corpus presenting claims previously rejected.”]; see also People v. Hogan, supra, 31 Cal.3d at p. 851 [no duty on the state to seize all possible evidence for defense or test for potential defense purposes].)

19 In an order, this court denied Soderstrom’s petition for writ of mandate, numbered G036589, on February 17, 2006 alleging the same grounds. He then petitioned the California Supreme Court in case numbered S141700 for the same relief, which was denied on May 10, 2006.

20 In the earlier petition, Soderstrom insisted that his trial and appellate counsel ineffectively represented him by refusing to obtain post-judgment deoxyribonucleic acid (DNA) testing on the hairs found on the ski mask. Soderstrom did not qualify for post-judgment DNA testing pursuant to section 1405, subdivision (a), because the identity of the perpetrator was never in dispute. (See § 1405, subd. (c)(1)(A)-(E).) Moreover, there is no duty on the part of the prosecution to engage in testing for the sole purpose of finding potentially exculpatory evidence. (See People v. Hogan (1982) 31 Cal.3d 815, 851.)

5. Improper Argument

Soderstrom accuses the prosecutor of misconduct when she allegedly: (a) argued facts outside the record, (b) misstated the law, (c) speculated as to Soderstrom’s actions during the incident, (d) “minimized” the purported lies told by prosecution witnesses and then attempted to justify such lies, (e) expressed her personal belief in his guilt, and (f) invited the jury to render a verdict based on “passion and prejudice.” Because all of these contentions should have been raised in the direct appeal, we could reject them from the outset. (See generally People v. Duvall (1995) 9 Cal.4th 464, 478; In re Dixon (1953) 41 Cal.2d 756 [the “Dixon” rule].)

However, we choose to exercise our discretion and resolve them here because Soderstrom, in filing multiple subsequent petitions in pro. per., raises them in repeated fashion. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, § 23, pp. 544-545.) Moreover, Soderstrom makes each of these contentions notwithstanding his failure to object in the trial court, which results in his waiver of the issues for post-judgment review. (See People v. Cleveland (2004) 32 Cal.4th 704, 761-762.)

(a) Facts Outside the Record

Soderstrom complains the prosecutor argued facts outside the record. Specifically, he points to comments the prosecutor made in argument that Soderstrom had a motive to lie and a motive to rob, even though concededly “no one testified to that, but like I said, it’s not just what people [said], it’s what they [didn’t] say.” Before and after this statement, she invited the jury to overlook discrepancies in the testimony of Carl and Corder, and minimized Corder’s previous testimony about never having sold or used drugs when he, in fact, had sold and used drugs. Finally, Soderstrom complains the prosecutor improperly argued that he resented Corder due to the drug-dealing obligations he owed him and attempted the home invasion robbery “to take what he believed was his . . . .” As no one testified directly as to these facts, he characterizes their expression as prosecutorial misconduct.

A prosecutor is given wide latitude in argument, and “may discuss the facts and the law as seen fit, advance any theory fairly within the evidence, and urge any conclusions deemed proper. The logic of the prosecutor’s argument is for defense counsel to challenge and for the jury ultimately to determine. [Citations.]” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 570, pp. 813, italics added.) This scope permits expression of the prosecutor’s view of the deductions or inferences warranted—in his or her opinion—by the facts. “‘Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of [the defense].’ [Citations.]” (Ibid.)

Moreover, “‘[a] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’”²¹ (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21.) Thus, a prosecutor may argue his or her opinion as to a person’s motive in doing something or testifying in a particular way, even though that person never actually testified to his or her motive. (See e.g., People v. Frye (1998) 18 Cal.4th 894, 972.)

21 For instance, Soderstrom complains bitterly that the prosecutor used racial innuendo in her argument for conviction by referring to “some cultures” which engage in crimes. But in the context of her argument, it was clear she was referring to the drug culture, not a racial or ethnic culture. Soderstrom’s interpretation that she was denigrating the African-American culture is strained at best, and there is no evidence to support that extreme interpretation.

Prosecutorial misconduct is defined as “rude and intemperate behavior violat[ive of] the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. . . . But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) None of the prosecutor’s comments reached this level. In context, each was a valid exercise of zealous but reasonable oratory.

(b) Misstatement of the Law

Soderstrom focuses on certain comments made by the prosecutor referring to the lesser included offenses to attempted murder. He contends the prosecutor erred when she argued that “the difference between murder and manslaughter is malice aforethought. . . . [In both,] you still have to have the intent to kill; okay. The difference is what negates the malice aforethought is the legal fiction.[²²] [¶]This is what I mean. Under certain circumstances the law understands why a person did what they did and kind of gives you a discount. So you have the intent to kill, okay but we as the community or the law recognizes a reason for that. We understand justification that kind of mitigates . . . malice aforethought.” The prosecutor then described that heat of passion or imperfect self-defense may be such circumstances, noting that “the law doesn’t excuse it, but the law says we understand how you got there. . . . [¶] So if you believe the testimony and if you believe that the person was under the influence of heat of passion, they didn’t know what was going on, they saw red [or were unreasonably but sincerely afraid] and that’s when they committed the act, then they’re guilty of voluntary manslaughter, okay. Because its intent to kill is there, it’s just the justification for it.”

22 Although Soderstrom does not take the prosecutor to task for the use of the term, “legal fiction,” we emphasize once again such terminology in describing voluntary manslaughter is “misleading if not inaccurate.” (People v. Najera (2006) 138 Cal.App.4th 212, 220-221.) In this case, the prosecutor’s brief and only use of the term was clearly not prejudicial. Nonetheless, “[d]escribing voluntary manslaughter as a legal fiction could have led the jury to believe it was not a real crime and should not be considered seriously.” The phrase should not be used again.

Soderstrom misstates the prosecutor’s argument and contends she was expressing her personal belief on a matter in issue. We reject such a characterization. Moreover, it was up to the jury to determine what the facts were and then to render a verdict consistent with those findings. They did so, rejecting the prosecutor’s case of attempted murder and attempted robbery of all other occupants except Corder; but simultaneously, the jury rejected Soderstrom’s strange tale of arriving in the early morning hours and being assaulted by Corder before he wrested the gun from him and held five people at bay until he was attacked by them.

(c) Speculations

Soderstrom characterizes the prosecutor as arguing to the jury certain speculations as fact when no testimony was received on the issue. Specifically, he now objects to Corder’s testimony that Smeltzer was deaf, thus explaining why Smeltzer told the officers at the scene that he did not recall hearing any demand by Soderstrom for money. Smeltzer was never called to testify at either the preliminary hearing or the trial. Nonetheless, Soderstrom alleges Smeltzer would have exculpated him had his trial counsel procured his attendance. His absence permitted this allegedly contrived explanation by the prosecution and Corder. From this, Soderstrom contends he was deprived of a fair trial.

Soderstrom’s allegations comprise the speculation, and not the prosecutor’s arguments. He maintains that Smeltzer’s interview was videotaped; and in this interview, Smeltzer never informed the police he was deaf and required a hearing device. Likewise, Soderstrom notes Corder never testified at the preliminary hearing that Smeltzer was deaf.²³ From this absence of information, Soderstrom concludes the prosecutor suborned perjury from Corder as to Smeltzer’s hearing impairment. He has failed to carry his burden: He must show by evidence in the record that error occurred. No error has been shown: Statements of observable disabilities or characteristics are not hearsay²⁴ at all, and assuming Corder’s testimony was hearsay, his comments were arguably admissible under Evidence Code sections 1250-1251.

23 Corder did not testify at the preliminary hearing as to Smeltzer’s deafness, but the investigating police officer did. The officer, Montero, testified that Smeltzer was deaf, a fact he discovered during “the previous prelims” when Montero attempted to direct Smeltzer to another room. Smeltzer “didn’t seem to understand and he told” the officer of his “hearing loss.” Montero then learned that Smeltzer required a hearing aid.

24 Cf. Evidence Code section 1200, subdivision (a), defining hearsay as “evidence of a statement that was made other than by a witness while testifying at the hearing.”

(d) Minimizing Witnesses’ “Lies”

Soderstrom complains that the prosecutor was permitted to argue that the inconsistencies in the prosecution witnesses’ stories were reasonable or explainable while his were irrational or incredible. He characterizes these statements as minimizing overt lies and providing justification for those lies while attributing irrationality to his story. But parties in argument are permitted to comment on the evidence and may invite the jury to draw all reasonable inferences from it, such as opining the various motives for specific testimony. (See People v. Frye (1998) 18 Cal.4th 894, 971 [“[A]s long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of the record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching.”].) And as noted before, mere inconsistencies in a witness’s testimony or that between two witnesses’ testimonial records does not establish perjury or even false testimony. (See People v. Gonzalez, supra, 51 Cal.3d at p. 1242.)

Nothing untoward occurred here; and Soderstrom’s failure to object to any of the comments during argument eliminated any possible curative admonition, assuming any error could be found. Thus, as an alternative grounds to reject the issue, it was waived. (People v. Cleveland, supra, 32 Cal.4th at pp. 761-762.)

(e) Personal Expression of Defendant’s Guilt

A prosecutor should not express his or her personal opinion as to the defendant’s guilt and is limited to arguing that the evidence establishes such guilt. (See People v. Dillinger (1968) 268 Cal.App.2d 140, 144; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 576, pp. 824-826.) Soderstrom contends the prosecutor crossed this line, but the record fails to support him in this accusation.²⁵ Thus, he has failed to make even a prima facie case.

25 The prosecutor argued in the following manner: “So not only do you have to do an actual and ineffectual act, but you also have to harbor the malice aforethought. I’m going to talk to you about [that]. That [is] a fancy way of saying specific intent to kill, okay. [¶] And again, how do you know that? How do you know what the person is thinking? You look at the totality of the circumstances, right. [¶] The facts are pretty much the same. But Corder testified . . . he said that he heard the defendant say ‘You’re dead’ prior to pulling the trigger. In fact, this is the first thing that he told Officer Montero. When he’s running up to him he said the guy said ‘You’re dead.’ And he took that seriously. And you know that from the subsequent conduct. This is how you know it happened. [¶] Jill Carl said that same thing . [¶] The defendant just wouldn’t admit on the stand that he ever had his hand on the trigger, that’s just unbelievable, why would you lie about it? . . . . [¶] . . . [¶] Listen, in real life why do people lie ? We’re talking about life. Why distance yourself away from it and then to say a more – if that were the truth, he would have said it was an accident. I wasn’t trying to hurt him. We were fighting. That’s not what he said. He said I never did it. That’s not true. [¶] That is not true because people don’t do that with guns. . . . The only reason he’d be lying about it because he knows it happened and I don’t care what he testified to on the stand. [¶] Corder also testified the defendant said your dead[,] not in an angry or frustrated tone but in a deliberate way. . . .” (Italics added.)

(f) Inviting a Verdict Based on Passion

Soderstrom similarly characterizes another portion of the prosecutor’s argument as unfairly invoking passion and prejudice. He emphasizes that she focused on his alleged statements during the incident that he was desperate and that he allegedly committed robberies for a living. She then stated, “I don’t care what you think the amount was, whether it’s five hundred, five thousand dollars, one thousand dollars a week, it doesn’t matter. But do you honestly believe that he came to that house at 4:00 in the morning knowing there’s other people there[,] to rob Denny without taking into consideration that there’s other people there? Do you honestly believe that once you realize that Denny doesn’t have that kind of money, he wasn’t going to take the property from the rest of them?”

Nothing in these comments supports Soderstrom’s characterization of them as prosecutorial misconduct. Contrary to his opinion, these statements are not an attempt to “improperly influence the jury to return a verdict of guilty.”

B. Ineffective Assistance of Counsel

Soderstrom attacks his trial counsel’s representation as ineffective for a number of reasons. We group these contentions into five categories: (1) errors in cross-examination of witnesses; (2) errors in investigation; (3) errors in jury voir dire; (4) the erroneous failure to pursue a mental defense; and (5) the erroneous forced compulsion of Soderstrom’s testifying in his own behalf. In our analysis of each group, we bear in mind that Soderstrom carries the burden of showing counsel’s performance was deficient and that deficiency resulted in the denial to him of a fair trial. (See generally Bell v. Cone (2002) 535 U.S. 685, 695; People v. Riel (2000) 22 Cal.4th 1153, 1175.)

1. Defective Representation in Cross-Examination

Soderstrom alleges that his trial counsel failed to cross-examine O’Keefe at trial. Specifically, he says O’Keefe’s prior convictions should have been used to impeach O’Keefe; and the inconsistencies between O’Keefe’s pretrial taped statement and his trial testimony should have been vigorously pursued.

The record fails to support Soderstrom in these attacks. Trial counsel did cross-examine O’Keefe,²⁶ eliciting O’Keefe’s admission that he had been a drug abuser in the past. O’Keefe was not impeached with the prior felony convictions, but the issue was discussed in limine in conjunction with the prosecution’s motion to impeach Soderstrom with prior felony convictions in the event he testified. As the prosecutor agreed to use only the existence of the prior convictions concerning moral turpitude—and not concern herself with any of Soderstrom’s other prior convictions—to impeach Soderstrom, the discussion then turned to the limitations on using the prosecution witnesses’ prior convictions.

26 We note that O’Keefe’s direct examination consumed 37 pages of trial transcript, and the cross-examination filled 34 pages.

It was agreed that the defense could cross-examine both Corder and O’Keefe as to their prior felony convictions even though they were simply drug possession and transportation charges. As the defense cross-examined O’Keefe as to his previous drug use, impeachment with the actual conviction for drug possession was generally unnecessary: The jury learned O’Keefe was a drug abuser without needing the prior conviction to prove it. Thus, Soderstrom suffered no prejudice from counsel’s tactical choice to not use the prior conviction but to rely on the generalized admission by O’Keefe of prior drug abuse. (Cf. Strickland v. Washington (1984) 466 U.S. 668, 687 [petitioner attacking trial counsel’s performance must show deficient performance by attorney and reasonable likelihood of more favorable outcome in absence of the defect]; People v. Ledesma (1987) 43 Cal.3d 171, 215.)

Soderstrom’s real argument is that he now contends counsel should have questioned O’Keefe in such a way as to establish that his conviction in 1990 was from a conspiracy to sell a large amount of cocaine, implying that O’Keefe and Corder were presently cocaine dealers because they sold drugs in the past. This point, he contends, would bolster his defense story that Corder was forcing him to sell drugs for him now.

These interpretations may be interesting but fail to have any nexus to the situation and characters in the case before us.²⁷ Moreover, one cannot impeach a witness with the facts underlying a prior felony conviction, only with the fact of the prior conviction. (See Evid. Code, §§ 786-787; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462 [“The scope of inquiry when a [witness] is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense.”].) Thus, counsel’s tactical decision to not pursue them cannot be deemed to be unreasonable and deficient. (Cf. People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1253 [if tactical basis supports counsel’s choices, reversal is not warranted on ineffective assistance claim].)

27 Soderstrom has provided us with copies of the amended information to which O’Keefe pleaded guilty in March 1990. There are three counts alleged, the first one being of conspiracy to sell cocaine based on an undercover proposed purchase of two kilograms of cocaine for $34,000. He also attaches the change of plea form in which the sentence for the case was suspended and he received an informal grant of probation for three years conditioned on a six-month term in county jail. The codefendant named in the information with O’Keefe was not Corder.

2. Deficient Defense Investigation

(a) Steve Darden

Soderstrom represents that his trial attorney was incompetent for failing to investigate whether Corder had previously attempted to purchase a handgun after he testified at the preliminary hearing that he had only handled a handgun on one prior occasion. It must be noted Soderstrom’s original counsel was not Soderstrom’s counsel at trial. A substitution had been ordered a few months before trial due to a conflict: the Public Defender’s Office had been appointed to initially represent Corder when he was arrested in April 2004, necessitating the immunity grant to Corder to testify against Soderstrom and a substitution of counsel.

Soderstrom claims he informed his original counsel that a phone call to an associate, Steve Darden, had revealed that Corder attempted to purchase a handgun in October or November 2001 in Darden’s presence. Darden allegedly overheard the gun’s seller brag that the handgun had been stolen from luggage at Los Angeles International Airport, the same site from which the Glock handgun used in Soderstrom’s crime was stolen. The original counsel’s investigator contacted Darden and submitted a report, dated December 2003, that Darden did not know where Corder was or that Corder ever used or sold drugs. No mention of a purchase or possession of a handgun was made in this report.

Soderstrom alleges he informed his new trial attorney of Darden’s phone information soon after the substitution. The new attorney’s investigator was to pursue the matter, but would not without direct authority from the attorney who left for vacation within a couple of weeks of the substitution. According to Soderstrom, the attorney then refused to pursue the matter upon his return from vacation, allegedly concluding that Darden would not cooperate anyway.

It must be emphasized that each of these allegations was litigated below in the Marsden motion (see People v. Marsden, supra, 2 Cal.3d 118) made in conjunction with Soderstrom’s motion for new trial. Trial counsel vehemently denied Soderstrom ever provided such information regarding Darden to him and that he had never refused to pursue any leads about the ownership of the gun. Trial counsel characterized the entire line of inquiry as “the biggest fabrication I have ever been accused of in my career.” The attorney also noted that Soderstrom had never hesitated throughout the proceedings to complain directly to the court as to anything he felt was not being zealously pursued. Thus, his failure to have mentioned this grievous inadequacy before the motion for new trial spoke volumes about the truthfulness of the accusation.

The judge in the Marsden motion accepted counsel’s responses (see People v. Jones (2003) 29 Cal.4th 1229, 1245)²⁸ and then turned to Soderstrom and said, “I find that you’ve had a fair trial. I don’t find that he’s been ineffective. As a matter of fact, I find him to be very effective for over half the counts [resulted in verdicts of] not guilty! And I think all [or a] lot of that was [due to trial counsel’s performance]. [¶] . . . [¶] . . . Regardless of whether this Darden witness was here or not, wouldn’t have mattered, in my opinion. Really. And I’m being straight with you; okay? You’re straight with me, I’m being straight with you. It wouldn’t have mattered. That’s what I’m looking at. [¶] If I thought ineffectiveness here, if I thought you didn’t get a fair trial, believe me, I would give you another trial, but I don’t see that at all. And I also see that fact that Mr. Chen can represent you at the sentencing, but you’ll have all those rights after this, and so I’m going to deny the Marsden [motion] . . . .”

28 The trial court may properly accept counsel’s version of events proffered in a Marsden hearing over the defendant’s story where the credibility assessment is the determining factor. (See People v. Jones, supra, 29 Cal.4th at p. 1245.)

Soderstrom now explains that the trial court in the Marsden hearing focused on the absence of any mention of the handgun in the report of the Darden interview by the original counsel’s investigator, thus implying that had Darden witnessed such a purchase, it would have been noted in that report. Soderstrom now says that his phone conversation with Darden in which he revealed his presence at Corder’s purchase of the handgun did not occur until after the initial interview with Darden by the original investigator. Thus, the original investigator did not know to ask Darden any questions about the gun.

However, this explanation does not withstand scrutiny: In Soderstrom’s petition, he alleges the telephone conversation between Darden and himself occurred in April 2004. But later in this same argument, he explains the phone conversation with Darden did not occur until after the substitution of counsel, which occurred on May 7, 2004. Finally, in his handwritten motion for new trial filed with the trial court, he specified the phone conversation with Darden occurred on July 14, 2004. Based on these flagrant inconsistencies within his own personally prepared papers, we agree with the trial court’s decision in the Marsden hearing that Soderstrom’s allegation is specious.

(b) Darren Smeltzer

Soderstrom complains that a potential witness, Darren Smeltzer, should have been subpoenaed by his counsel but because Smeltzer had recently moved out of state and counsel allegedly “was not familiar” with the Uniform Act to Secure the Attendance From Without the State in Criminal Cases (§ 1334, et seq.), no efforts were made to procure his attendance. He alleges that Smeltzer would have exculpated him of the attempted robbery charges because Smeltzer told the officers at the scene that Soderstrom never demanded any money from anyone.

Initially, it should be noted that Soderstrom was acquitted of four of the five attempted robbery charges: He was convicted of attempting to rob only Corder.

Using copies of an original police report of the incident and a few pages from a mostly unintelligible transcript of a videotaped interview of several subjects, Soderstrom concludes that Smeltzer would have convinced the jury no threats or demands for money were ever made by him at the scene. But these characterizations are not supported by Soderstrom’s exhibits: Smeltzer reportedly said he did not “recall hearing” any demands made by Soderstrom but knew “he wanted to rob us.” Moreover, Soderstrom overlooks the testimony given by Corder that Smeltzer was deaf and without his hearing device, he could not hear anything at all.

Soderstrom’s allegations are simply unsubstantiated and thus must be rejected. Moreover, all the witnesses agreed that Smeltzer tackled Soderstrom at the same time that Corder did, and vociferously beat on him with the football helmet until his head was cut open. Characterizing such a witness as one who would exculpate the defendant is rather farfetched, particularly in light of the fact Soderstrom relies on exhibits which fail to support his characterization of Smeltzer’s statements to the officers on the day of the incident. Finally, Soderstrom’s exhibits establish inconsistent information about Smeltzer and his whereabouts, notably that he apparently had no address throughout this period. Petitioner has failed to bear his burden in providing any grounds to support his argument.

(c) Jamie Marquez

Jamie Marquez testified for the prosecution and was a named victim of one of the attempted robbery counts for which Soderstrom was acquitted. Soderstrom alleges that Marquez told the original defense investigator in a pretrial interview dated September 4, 2003 that she previously worked as a reserve officer for the police in Medford, Oregon. Soderstrom provides a copy of a memorandum prepared by the investigator for the original defense attorney reflecting this interview. In another memorandum, an officer in the Medford police department declared that no record existed supporting the allegation that Jamie Marquez was ever an employee there.

Soderstrom complains that his trial counsel failed to impeach Marquez with this inconsistency. He argues that Marquez had lied in the interview and that lie should have been exposed to the jury. However, Soderstrom was acquitted of the charge which named Marquez as a victim. Considering this acquittal, Soderstrom carries a very heavy burden to show what prejudice inured to him by this failure. He has failed in this endeavor by merely concluding the verdict would have been different had it occurred.

(d) All Prosecution Witnesses

Soderstrom contends his trial counsel neither interviewed any “material” witness prior to trial nor subpoenaed any witness on his behalf. He concludes this failure constituted clear ineffective representation in light of the many interviews conducted by the original defense investigator who was the sole defense witness called by his trial attorney.²⁹ On the other hand, Soderstrom fails to show how this resulted in prejudice: He merely assumes a result more favorable to him would have occurred had duplicitous interviews been conducted or had various witnesses been called to testify. Presumably, such witnesses would have testified in the manner they did or in a manner generally consistent with their pretrial statements. It is never shown how the outcome would have necessarily been different.

29 When called by the defense, the original investigator was only questioned as to his interview with Jill Carl.

One of the witnesses—Montana—was not called but he was asleep until the very end of the incident. Various other persons would have impeached Corder as a drug dealer, but he admitted to selling drugs in his testimony and by the fact of his immunity grant. Those witnesses’ presence was thus unnecessary. And Soderstrom’s brief allegation that counsel refused to have the hairs found on the ski mask inside the backpack retested is virtually unsupported in any way.

The burden was on Soderstrom to show deficient representation and prejudice from that inadequate performance. (Cf. Strickland v. Washington (1984) 466 U.S. 668, 687.) He failed to do that.

3. Deficient Jury Voir Dire on Racial Bias

Soderstrom contends his trial counsel ineffectively represented him by refusing to voir dire the jury panel as to possible racial bias. He states that he is of African-American descent and all the alleged victims were Caucasian. He concludes he was denied a fair trial because there were no Black jurors, and his attorney refused to inquire on voir dire if anyone had been a victim of crime at the hands of an African-American. However, he concedes the entire panel of potential jurors included no African-Americans. Nonetheless, he concludes his trial was fundamentally unfair because his attorney insisted that “race was not an issue” in his case.³⁰

30 Counsel also allegedly told Soderstrom that in Orange County only 3 per cent of the “vicinage” was African-American. Thus, the complete absence of African-Americans on a jury panel of 56 persons was not unusual. These statements were left unsubstantiated by Soderstrom in his petition.

The Attorney General responds that the trial court was ultimately responsible for the jury voir dire in this case, not counsel. (See Code Civ. Proc. § 223; see People v. Earp (1999) 20 Cal.4th 826, 852 [trial court has the power to control all inquiry in voir dire].) And any attack on the inquiry can only succeed in a reversal if “the exercise of [the trial court’s] discretion has resulted in a miscarriage of justice specified in Cal. Const., Art. VI, § 13 . . . .” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 472, subd. (3), pp. 673-674.)

In this case, race was never an issue because Soderstrom was identified by several persons who had known him long before the crime occurred and his appearance was not distinctly African-American: He has olive complexion, green eyes, and tightly curled brown hair.³¹ Soderstrom has failed to show that counsel’s conduct fell below an objectively reasonable standard in his tactical decision that race was not an issue in the case. Moreover, Soderstrom has failed to show how, by asking questions about potential racial bias, the jury would not have convicted him. As he conceded, there were no African-Americans in the jury panel, and his jury was comprised of Caucasians, Hispanics and Asian-Americans. Under these circumstances, it cannot be assumed the jury was biased against him as an African-American, particularly when he did not appear distinctly to be an African-American. (See e.g., People v. Cunningham (2001) 25 Cal.4th 906, 1003 [counsel not ineffective for failing to insist that questions concerning racial bias be asked on voir dire].)

31 We note that counsel on the petition refutes this assessment in the traverse, noting that having met Soderstrom personally, his appearance is far more consistent with an African-American than the Attorney General’s attachment suggests. Nonetheless, interracial identification was not an issue in this case, and at no time has Soderstrom shown that he was deprived of a fair trial: He surmises that he must have been denied a fair trial simply because he is of African-American descent and neither the prosecution witnesses nor the jurors were similarly characterized.

4. Failure to Investigate Mental Defense

Soderstrom expresses his dissatisfaction with trial counsel’s failure to pursue a “diminished actuality defense” after Soderstrom allegedly told him he was incompetent to stand trial due to forced medication. Soderstrom states that trial counsel refused to retain a psychiatrist to investigate a possible diminished actuality defense to the attempted murder and assault charges. He concludes from this that it “is reasonably probable that a result more favorable to [him] would have occurred if counsel had retained a psychiatrist and investigated the merits” of such a defense.

Initially, we note that Soderstrom was acquitted of the attempted murder charge. The assault with a firearm charge required proof of only a general criminal intent; thus, evidence of diminished actuality could not undermine the intent element of that charge and would have been irrelevant to it. (See CALCRIM Nos. 875, 3428; see People v. Reyes (1997) 52 Cal.App.4th 975, 983-984; § 28, subd. (a).) Thus, even were we to assume counsel’s actions were deficient, no prejudice resulted from that deficiency in this case.

Moreover, no evidence or verification is provided for any of Soderstrom’s allegations. He asserts he was prescribed depakote and seroquel while incarcerated, and the proof he submits are two separate consent forms—one describing seroquel dated October 2003 and one describing depakote, presumably from the same date—in which they state that his “treating psychiatrist” recommends these medications for his symptoms of “hallucinations, frightening or unusual thoughts, confusion, [] anxiety,” poor sleep, “excited mood, or rapidly changing mood. . . racing thoughts and speech, . . . and impulsive behaviors.” These consent forms specifically emphasize the patient could refuse these medications. All further allegations are completely unsubstantiated, including Soderstrom’s representation that he informed his counsel that he was under the influence of these medications and that he was not competent to stand trial because of them.

Soderstrom relates a long and tragic self-history of physical, emotional, and psychological abuse, adding that he was diagnosed as “bi-polar, schizophrenic and borderline psychotic” and was addicted to alcohol, heroin and cocaine. Based on all of these facts, he concludes counsel incompetently rejected any attempt of psychiatric consultation or defense. But the burden is on Soderstrom to show that such a tactical decision was not objectively reasonable (see People v. Williams (1997) 16 Cal.4th 153, 214-218 ³²), assuming arguendo that his allegations of informing his counsel of the necessary factual prerequisites are true.

32 “‘[B]ecause trial counsel’s tactical decisions are accorded substantial deference, failure to object seldom establishes counsel’s incompetence.’ [Citation.]” (People v. Williams, supra, 16 Cal.4th at p. 215.) In Williams, as in the case before us, the defendant on appeal made numerous accusations regarding testimony inconsistencies or possible variations in absent witnesses’ potential testimony. But all of Williams’ assertions were allegations for which there were “plausible tactical possibilities” and such possibilities “undermine[d] defendant’s claim of ineffective assistance.” (Id., at p. 217.) Likewise, here: Soderstrom’s second-guessing trial counsel’s tactical decisions seem strained in light of how effective counsel had been in obtaining his acquittal for the attempted murder and four counts of attempted robbery.

“A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (People v. Welch, supra, 20 Cal.4th 701, 728-729.)

In Welch, the defendant argued on appeal that his counsel should have relied on a defense of actual innocence and mistaken identity, “whereas counsel pursued the defense that defendant acted impulsively, in part under the influence of drugs and alcohol, and lacked premeditation and deliberation.” (People v. Welch, supra, 20 Cal.4th at p. 728.) The Supreme Court rejected Welch’s argument, holding that the attorney’s choice of arguing lack of premeditation was the most potentially successful approach, due to the “overwhelming evidence against defendant on the question of his guilt for the six murders, . . .” (Id. at p. 729.) As an attorney holds the control of trial tactics in his or her hands, “[t]hat tactical choice was not ineffective representation on counsel’s part. Defendant does not assert on appeal that the trial court failed to permit him adequate opportunity to present his Marsden motions. Nor, from our review of the record, is there evidence that counsel lacked diligence or competence . . . .” (Ibid.)

By analogy, the same could be said here. Counsel—whether due to ignorance of any possible factual basis for a diminished actuality defense or that Soderstrom was incompetent to stand trial,³³ or due to clear tactical assessment—chose to attack the prosecution’s witnesses, their credibility and their inconsistent versions of the night’s events. That assessment was highly effective: Soderstrom was acquitted of the most serious charge, attempted murder. He was also acquitted of four of the five attempted robberies. Counsel’s tactical choice was clearly a good one. Soderstrom’s attack on that successful approach sounds far more like “Monday-morning quarterbacking” than an honest dispute as to what transpired between counsel and defendant. And as argued by trial counsel in the Marsden motion after conviction, Soderstrom never hesitated to complain about disputes he had with counsel’s performance or zealotry, yet never mentioned this claim before judgment was imposed.

33 We observe that Soderstrom’s comments during trial and especially during the Marsden hearing, in conjunction with his handwritten motion for new trial, did not demonstrate any evidence of incompetency to stand trial. To the contrary, his comments in court as well as his written handiwork display a particularly clear, passionate and surprisingly articulate mind. Nothing in the record indicates anything other than Soderstrom’s ability, in expert fashion, “to understand the nature of the criminal proceedings [and] to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).) Lastly, as argued by counsel in the Marsden hearing, Soderstrom never hesitated to complain directly to the trial court of anything that smacked of anything less than the most zealous of representation. Yet Soderstrom never mentioned in his complaints against either of his attorneys that he might be incompetent to stand trial. Even his handwritten motion for new trial conspicuously lacked any such allegation.

5. Compelled Testimony

Soderstrom contends he told his attorney on June 7, 2004, that he did not want to testify, but his counsel absolutely forced him to waive his right to remain silent and submit to sworn examination. He explains he told his attorney that he doubted that he could testify because of the forced anti-psychotic medication and his “mental illness.” He concludes that a “result more favorable to” him would have occurred if his attorney had acquiesced to his stated desire to remain silent. Although Soderstrom presents no evidence of such conversations—not even a declaration is presented—he avers that he was left with no choice but testify after his attorney surprised him by announcing to the jury that he would testify on August 25, 2004. According to Soderstrom, his counsel told him he had to testify to present his version of the facts and because he would not have a “snowball’s chance in hell” without that testimony.

Bare assertions in pleadings are insufficient to establish a prima facie case for habeas relief.³⁴ (See e.g., People v. Cooper (1992) 7 Cal.App.4th 593, 597 [a bare declaration denying waiver of rights is insufficient to make prima facie case of invalid prior conviction by plea].) Soderstrom has even failed to provide a declaration, which is what was provided and deemed insufficient in Cooper.

34 We note that Soderstrom was present in court when the judge stated repeatedly that certain evidence was being reviewed for in limine rulings on admissibility conditioned on whether he testified.

C. Judicial Error

Soderstrom makes the following arguments, all of which are improperly raised under a petition for writ of habeas corpus.³⁵ He contends that: (1) The trial court erred when it instructed the jury regarding attempted robbery (see CALJIC No. 9.40, as given); (2) the trial court erred when it instructed the jury that the corpus delicti must be proved independent of an admission or confession and then defined such an admission (see CALJIC Nos. 2.71, 2.72, as given); and (3) the trial court erred when it permitted a firearm demonstration by a law enforcement officer.³⁶

35 In his third supplemental brief, Soderstrom also argues the trial court erred when it barred him from arguing his motion for new trial and then failed to rule on it. However, this issue was raised in the direct appeal as a tangent to the issue concerning the trial transcripts, which is where we resolved it. (See fns. 9 & 10, ante.)

36 Although not addressed for procedural reasons, we note that no error occurred in the court’s jury instructions: CALJIC Nos. 2.71, 2.72 and 9.40, as given, were proper statements of law. (See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 86, p. 115 [noting that CALJIC No. 9.40 is proper statement of the crime of robbery]; People v. Brackett (1991) 229 Cal.App.3d 13, 19-20 [CALJIC No. 2.71 must be given if any pretrial statement by the defendant is admitted at trial and, when taken in conjunction with all other evidence, infers guilt]; People v. Beagle (1972) 6 Cal.3d 441, 455 [CALJIC No. 2.72 must be given sua sponte if any statement by defendant is used].) We merely note that all three instructions inured to the benefit of the defendant in that each laid out the burden the prosecution had to meet before a jury could convict on the charges.

Initially, we note all such issues must normally and properly be raised in the appeal from the conviction, and it has not been brought to us by the counsel appointed by this court to represent Soderstrom on appeal. Soderstrom explains that his appointed appellate counsel refused to bring any issue that reputedly “fell outside the trial record.” However, issues of jury instructions and evidentiary rulings are within the trial record and must be raised appropriately for this court to review. As was stated by our Supreme Court in 1993, “Habeas corpus is an ‘extraordinary remedy.’ [Citation.] ‘It may not be invoked where the accused has such a remedy under the orderly provisions of a statute designed to rule the specific case upon which he relies for his discharge. This would be an abuse of process, as his relief under the remedy provided by the statute would accomplish all that he was seeking . . .’ [Citation.] ‘The writ of habeas corpus was not created for the purpose of defeating or embarrassing justice, but to promote it.’ [Citation.]” (In re Clark (1993) 5 Cal.4th 750, 764, fn. 3 [original italics]; see also In re Dixon (1953) 41 Cal.2d 756, 759.) “‘“[I]n the absence of special circumstances constituting an excuse for failure to employ [the] remedy [of appeal], the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.” [Citations.]’” (Clark, supra, 5 Cal.4th at 765.)

These issues could and should have been raised in the appeal had they been meritorious or arguable. They were not raised, and Soderstrom has provided us no reason to believe counsel failed to raise them for any reason other than they were clearly unmeritorious in counsel’s mind.

III. DISPOSITION

The petition for writ is denied. The judgment is affirmed.

WE CONCUR: BEDSWORTH, J., MOORE, J.

Soderstrom also contends in his third supplemental brief in the consolidated petition that the trial court erred when it refused to allow him to argue his motion for new trial and then failed to rule on it. The record fails to support him in this characterization: The trial court received and filed the handwritten motion and then explicitly denied it. Soderstrom fails to understand that he received an opportunity to argue the grounds for the motion in his Marsden hearing because the basis for the new trial was the alleged inadequacies of trial counsel presented in the Marsden motion’s hearing. (See fn. 10, post.)