Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING on Petition for Writ of Habeas Corpus No. NA030913, Joan Comparet-Cassani, Judge.
Kiana Sloan-Hillier for Petitioner
Steve Cooley, District Attorney of Los Angeles County, Lael R. Rubin, Head Deputy District Attorney, Brentford J. Ferreira and Laura Jane Kessner, Deputy District Attorneys, for Respondent.
JOHNSON, J.
Petitioner Mario Chen filed a petition for a writ of habeas corpus contending his convictions for sexual assault resulted from the ineffective assistance of counsel. Chen filed his petition in the Supreme Court which issued an order to show cause returnable in our court.
For the reasons discussed below we have concluded defense counsel’s performance was deficient in failing to call available, credible witnesses whose testimony could have supported Chen’s alibi and impeached the testimony of the prosecuting witness. We have further concluded had it not been for counsel’s ineffective assistance it is reasonably probable Chen would have obtained a more favorable result. Accordingly, we vacate the judgment and remand the matter to the trial court for further proceedings in accordance with law.
FACTS AND PROCEEDINGS BELOW
Chen was convicted of 13 counts of sexual assault on Roxanna M. and sentenced to a term of 94 years to life in state prison.
A. Prosecution Evidence
According to M.’s testimony, she arrived at her one bedroom apartment in Wilmington at approximately 10:30 p.m. After locking the two deadbolt locks on her front door she sat down in her living room and turned on the television. She fell asleep with the television and lights on.
M. testified she awoke later to find the lights off and a man standing over her. She could not see the man’s face because he was wearing a sweater with a hood pulled down over his head and a cloth covering his face. The man placed cotton over M.’s eyes and wrapped duct tape around her head to hold the cotton in place. He then taped her feet or ankles together. This done, the man began sexually assaulting M. including forcing her to engage in vaginal and anal intercourse and oral copulation. At one point the man paused in his assaults and placed a roll of toilet paper in M.’s hands indicating he wanted her to clean herself which she did.
The assaults ended sometime between 5:00 and 5:30 a.m. when M.’s alarm clock went off. The man placed a blanket over M.’s head and wrapped duct tape around the blanket. He then left the apartment.
After the attacker left, M. went across the hallway to the apartment of the building manager and told him she had been raped. The manager called the police who began an investigation. Among other things the police collected the toilet paper M. testified her attacker had ordered her to use and which might bear his semen.
M. was examined at a hospital later that morning. The nurse who examined her testified she found numerous tears in M.’s vagina which led her to conclude M. had suffered vaginal trauma as the result of non-consensual sex. Semen samples were collected from M.’s vagina and the toilet paper. Subsequent DNA tests on the semen from the toilet paper showed the odds were 9.9 million to 1 the semen came from Chen. The semen sample from M.’s vagina, however, proved inadequate for DNA testing.
Although M.’s assailant spoke not a word during the attack and M. never saw his face she nevertheless identified Chen as her attacker. She based her identification solely on the fact both Chen and her attacker had a “truck driver” smell.
Chen worked as a truck driver at Look Transportation in Compton along with M.’s brother and approximately 20 other drivers. M. admitted she frequently visited her brother at the trucking company.
M. testified she was acquainted with Chen and considered him a “friend,” nothing more. She denied ever being anywhere alone with Chen or having a “romantic relationship” with him and she denied she had ever had consensual sex with him.
A few days after the assault police conducted an audiotaped interview with Chen. Chen repeatedly and emphatically disavowed any romantic involvement with M. and denied he had ever had any sexual relations with her.
M. testified Chen had come to her apartment a week before the attack saying he needed to use her bathroom. He stayed about five minutes. The next morning M. noticed the keys to her apartment were missing.
B. Defense Evidence
Chen’s expert witness testified the tears in M.’s vagina were consistent with consensual as well as non-consensual intercourse.
Chen’s employer testified when he arrived at his trucking company at approximately 7:00 a.m. on the morning following the assault Chen and his brother Caesar were already there.
Chen testified on his own behalf. He stated he met M. through her brother Jaime who worked at Look Transportation along with Chen, his brothers Caesar and Jose, and his brother-in-law Harold Campbell. Chen and M. had been having sexual relations for the past two years. They had intercourse at her apartment the night before she was attacked. Chen had used a condom and wiped himself off with toilet tissue afterward. After they had sex they had an argument over money. During the course of their affair Chen had given M. approximately $3,000 in “loans” which she had never paid back. This particular evening M. asked to borrow $500. Chen asked her if she was charging him for sex. M. became upset and told Chen to leave. He left her apartment at approximately 10:30 p.m. As Chen was leaving M. stated he was going to “pay for it.”
Chen testified at the time he was interviewed by the police he lied when he denied having sexual relations with M. He said he did not tell the police the truth about their affair because he did not believe he was a suspect in the crime and he was afraid the police would pass this information on to his wife. He had told his wife he had broken off his affair with M.
On cross-examination the prosecution impeached Chen with his tape recorded statement to the police in which he denied any romantic or sexual involvement with M..
In her closing argument the prosecutor made the most of her opportunity to demolish Chen’s testimony he and M. were having an affair. She pointed out to the jury Chen told the police “over and over again” he had never engaged in any sort of sexual relationship with M. and it was only after the DNA tests came back that Chen changed his story to fit the facts by claiming he and M. had been having a consensual sexual relationship. “And that’s all you have here,” the prosecutor argued, “a fabrication by the defendant to fit the facts.”
The defense called no other witnesses.
C. Verdict and Sentencing
Following two days of deliberation the jury found Chen guilty of rape, forcible oral copulation and forcible sodomy and found additional special circumstances true. The trial court sentenced Chen to 94 years in prison.
D. Appellate Review
We affirmed Chen’s conviction in an unreported decision.
People v. Chen (Oct. 13, 1999, B124072).
E. Writ Review
In May 2002 Chen filed a petition for habeas corpus in the trial court alleging ineffective assistance of counsel. The trial court denied the petition.
In October 2003 Chen filed a habeas petition in our court on the same ground. We denied the petition without a hearing.
In December 2003 Chen filed a petition for habeas corpus in the Supreme Court again claiming he had been denied effective assistance of counsel. A year later, in December 2004, the Supreme Court issued an order to show cause returnable in the trial court.
The trial court denied the petition without conducting an evidentiary hearing. The court ruled the petition was untimely and in any event Chen had failed to show he was denied effective assistance of counsel. The court found the pleadings did not “present any factual disputes which require an evidentiary hearing[.]”
After the trial court denied his petition for habeas corpus Chen returned to the Supreme Court with a petition for a writ of mandate directing the trial court to vacate its decision and conduct an evidentiary hearing into the allegations in his habeas petition. He argued the high court’s order to show cause and a letter from the court’s clerk to the presiding judge of the trial court implicitly required an evidentiary hearing. The petition also restated Chen’s arguments his counsel had acted incompetently in conducting his defense and prayed for relief from the illegal restriction on his liberty.
The People filed an informal response contending the high court had not implicitly ordered an evidentiary hearing on the habeas petition and the trial court had correctly determined there were no issues of fact which required an evidentiary hearing. The informal response also argued the trial court had correctly denied the habeas petition on the merits.
The Supreme Court ordered the petition for writ of mandate be refiled as an original petition for writ of habeas corpus and ordered the Director of the Department of Corrections to show cause in our court why the relief sought in the petition should not be granted.
A return and traverse were filed in our court and the matter was set for hearing. After considering the pleadings and exhibits and the parties’ oral arguments we concluded the undisputed facts showed defense counsel’s representation was deficient because he failed to call or even interview available witnesses who could have supported Chen’s alibi or impeached M.’s testimony. Thus, counsel failed to act as a reasonably competent and diligent advocate.
Neither party has briefed the timeliness issue raised by the trial court and we deem this issue waived.
In order to determine whether defense counsel’s ineffective assistance was prejudicial we referred the cause to the superior court with directions to conduct an evidentiary hearing and make findings of fact (1) whether any potential defense witness not interviewed or interviewed but not called would testify at a new trial consistently with the testimony in the witness’s declaration filed in support of the habeas petition and (2) if so, whether a reasonable juror could find the testimony of such witness to be credible. We emphasized the trial court was not to determine whether it found a particular witness credible but to determine only whether a reasonable juror could find the witness credible.
In response to our order the trial court conducted an evidentiary hearing in which it took testimony from 13 potential defense witnesses, each of whom was subjected to cross-examination. The court determined all of Chen’s potential witnesses would testify substantially consistent with their declarations and a reasonable juror could find five of these witnesses credible. Because these “credible” jurors would support Chen’s alibi, support his contention he and M. were lovers, and impeach M.’s testimony she and Chen were nothing more than “friends,” we conclude there is a reasonable probability Chen would have obtained a more favorable outcome had it not been for his trial counsel’s ineffective assistance.
In light of this decision we need not decide whether the trial court erred with respect to Chen’s earlier habeas petition by not conducting an evidentiary hearing.
DISCUSSION
I. DEFENSE COUNSEL’S PERFORMANCE WAS DEFICIENT.
In order to obtain reversal of his conviction due to ineffective assistance of counsel Chen first must show “by a preponderance of the evidence that counsel’s performance was inadequate and fell below an objective standard of reasonableness.”
In re Thomas (2006) 37 Cal.4th 1249, 1257.
Chen contends his defense counsel failed to perform in conformity with prevailing professional norms because he failed to interview known witnesses who would have confirmed M.’s affair with Chen and Chen’s alibi for the morning of the assault and he failed to call witnesses he did interview who would have confirmed the affair and the alibi. We agree defense counsel’s performance was inadequate and inept.
Chen also contends his counsel failed to listen to or obtain a transcript of Chen’s statement to the police denying a sexual relationship with M. thereby allowing the prosecutor to impeach Chen’s trial testimony regarding the affair. The record and a declaration from Chen’s trial counsel show, however, counsel did listen to the tape of the interview before putting Chen on the stand and gave him the opportunity to explain the conflict between his statements on the tape and his trial testimony.
A. Failure to Interview Known Witnesses
1. Francisco Sosa
Sosa was one of Chen’s co-workers who was not interviewed. Sosa would have testified he heard at work someone had broken into M.’s apartment the night before. He remembered on the previous day Chen had told him he was going to visit M. after he got off work. When Chen left work that evening he told Sosa and others at the trucking company he was going to M.’s apartment.
The trial court determined a reasonable juror could find Sosa’s testimony credible.
2. Sandra Leon
Sandra Leon was not interviewed as a possible defense witness. She would have testified about a year before the alleged rape her boyfriend Elias bought a beeper from Chen. One night around midnight someone beeped and left a call back number. Curious about who was beeping Elias, Ms. Leon called the number on the beeper. A woman answered. Ms. Leon asked the woman who she was and why she was beeping Elias. The woman told Ms. Leon her name was Roxanna and she was not beeping Elias, “she was beeping her boyfriend, Mario Chen.”
The trial court determined a reasonable juror could find Leon’s testimony credible.
3. Olga Marina-Chen
Counsel never interviewed Chen’s wife, Olga Marina-Chen, to determine if she could confirm his claim he was at home in bed with her in the early morning hours when the alleged assault on M. occurred. Ms. Chen would have testified Chen arrived home between 11:00 and 11:30 p.m. the night before M. claimed she was raped. She would also have testified she and Chen were in bed together when he got up to go to work the next morning. Ms. Chen remembers these days and times because she and Chen had had a major argument the day before about his seeing M. and Chen had promised not to be friends with her anymore.
4. Harold Campbell
Counsel failed to interview Harold Campbell, Chen’s brother-in-law, who worked with Chen at Look Transportation. Campbell would have testified he saw M. visiting Chen at work on numerous occasions. On one occasion he saw Chen give money to M. They kissed on the lips and then M. drove away. On another occasion Campbell arrived at a truck stop in the Bay area and, seeing Chen’s truck there, decided to say hello and see if Chen wanted to have breakfast with him. When he opened the door to the truck’s sleeper cabin he found M. inside.
B. Failure to Call Known Witnesses
1. Vilma Campbell
Vilma Campbell was interviewed but never called as a witness. She would have testified Chen and his wife were living with her and her husband at the time of the alleged assault on M. Every night Ms. Campbell watched the news between 11:00 and 12:00 p.m. On the night of the alleged attack Chen arrived home before the local news was over. Therefore, Ms. Campbell estimates, Chen must have arrived between 11:00 and 11:30 p.m. The next morning she was awakened by a car horn sometime before 6:00 a.m. She looked outside and saw Chen leaving the house with his brother, Caesar.
The trial court determined a reasonable juror could find Campbell’s testimony credible.
2. Wagner Sagustume
Another witness interviewed but not called, Sagustume would have testified he had lunch with Chen and M. and a girlfriend of M.’s. M. and Chen were holding hands and kissing in the restaurant parking lot.
The trial court determined a reasonable juror could find Sagustume’s testimony credible.
3. Gustavo Diaz
Diaz was interviewed but never called. He would have testified to an occasion when Chen asked him for a ride to a restaurant in Carson. While they were sitting in Diaz’s car in front of the restaurant M. arrived in her car. Chen got out of Diaz’s car and walked over to M.’s. He kissed M. on the mouth and held her arm as they walked into the restaurant.
The trial court determined a reasonable juror could find Diaz’s testimony credible.
4. Caesar Chen
Counsel interviewed Chen’s brother Caesar but did not call him as a witness. Caesar would have testified he and Chen worked together at Look Transportation and often drove to work together. He remembers calling Chen at his home at approximately 5:30 a.m. on the morning M. claimed Chen raped her. Chen answered the phone and Caesar told him he would pick him up no later than 5:45. He got to Chen’s home about ten minutes later. Chen was there and they drove to work together. Caesar remembers these events because it was later that same day he heard someone had broken into M.’s apartment.
5. Elias Casasola
Casasola was interviewed but not called as a witness. He would have testified he and Chen grew up in the same small town and had been friends most of their lives. He first met M. over a year before she accused Chen of rape. He was at M.’s sister’s house working on her car. M. was “flirting” with Chen. He next saw M. approximately a year before Chen’s arrest. Chen had called him and asked him to come and pick him up at the local 7-Eleven store. When Casasola arrived he saw Chen and M. sitting in a car in the parking lot. Casasola stated: “[T]hey were kissing and hugging each other; they were so involved that neither one of them saw me.”
6. Mariela Chen
Defense counsel interviewed Chen’s younger sister Mariela but did not call her as a witness. She would have testified in the summer of 1995 she answered the telephone late one night and the woman calling asked to speak to Mario. She called to her brother to pick up the phone and as she was getting ready to hang up the extension she heard the woman say: “Hi, honey, it’s Roxanna.”
C. Defense Counsel’s Performance Was Constitutionally Inadequate
An attorney representing a criminal defendant “owes his client a duty to investigate carefully crucial defenses of fact that may be available” and the “inexcusable failure to do so constitutes a denial of effective assistance of counsel.” Counsel is, of course, entitled to great deference in our review of his trial tactics and strategy. Even the failure to conduct a complete investigation of Chen’s case may be excused if such failure was based on a reasonable professional judgment an investigation into certain aspects of the case was unnecessary. But this deference presupposes counsel had a strategic reason for curtailing his investigation and the strategic reason was reasonable even if it was one the court does not necessarily agree with.
In re Branch (1969) 70 Cal.2d 200, 210, citations omitted. See also ABA, Criminal Justice Section, Criminal Justice Standards—Defense Function, Standard 4-4.1 (a): “Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case[.]” (Hereafter cited as ABA Standards.)
People v. Ledesma (1987) 43 Cal.3d 171, 216.
See Wiggins v. Smith (2003) 539 U.S. 510, 521-522.
In re Lucas (2004) 33 Cal.4th 682, 707.
1. Failure to Interview Witnesses
Counsel’s failure to interview known potential witnesses personally or through an investigator or associate cannot be excused as a reasonable trial tactic or strategy.
Counsel declared he did not interview Ms. Chen because he “never considered” calling her as a witness. He stated he “thought her value to the case was as a support person in court, rather than as a witness.” How he determined Ms. Chen’s proper role without even interviewing her is left unexplained. Counsel also stated he believed he would be able to call other witnesses to corroborate Chen’s testimony and therefore Ms. Chen’s testimony “would be unnecessary and may have been cumulative.” The only other witnesses who could have corroborated Chen’s testimony he was at home at the time of the alleged assault were his brother, Caesar, and Vilma Campbell but defense counsel called neither of them as a witness so Ms. Chen’s testimony would not have been unnecessary or cumulative. Furthermore, Ms. Chen’s testimony would not have been cumulative because no other witness was in bed with Chen when he got up to go to work on the morning in question. Although on the reference the trial court stated it believed a juror would find Ms. Chen’s testimony “not credible,” the court’s finding is irrelevant to the issue of defense counsel’s trial tactics. Defense counsel did not eliminate Ms. Chen as a witness because he doubted her credibility, but did so without even interviewing her.
Counsel’s declaration offers no explanation at all for his failure to interview the other potential witnesses.
2. Failure to Call Witnesses
Counsel’s declaration gives no reasonable explanation for failing to call Elias Casasola whom he knew would testify to Chen’s affair with M. dating back at least a year before the alleged sexual assault. Casasola, it will be recalled, would have testified he had seen Chen and M. “kissing and hugging each other” in a car in a parking lot and so intent on each other they did not even notice Casasola standing there. He would also have testified he saw Chen give M. $300. Thus Casasola’s testimony would have impeached M.’s testimony she and Chen were “just friends” and supported Chen’s testimony regarding their longstanding affair.
The only reason counsel gave for failing to call Casasola as a witness was his failure to disclose this potential witness to the prosecution. Counsel stated he believed he was in compliance with the discovery statutes but “both the prosecution and the court believed otherwise. The court’s position on the compliance issue was a significant consideration in my decision to not call any more witnesses.” Thus, counsel admits he failed to call this significant witness because of his own negligence in failing to comply with the discovery statutes or because he did not want to be reprimanded or sanctioned by the court.
The Criminal Justice Standards of the American Bar Association state: “Defense counsel should make a reasonably diligent effort to comply with a legal discovery request” and “Defense counsel should not permit his or her professional judgment or obligations to be affected by his or her own . . . personal interests.” (ABA Standards, Standards 4-4.5, 4-3.5.)
Counsel explained he did not call Chen’s brother, Caesar, for two reasons. “I was worried that the jury would think he was lying for his brother. I was also concerned because the court and the district attorney believed that I should have turned over my witness statements prior to trial.”
As to the first reason, courts have differed over whether a decision not to call family members is a reasonable trial strategy. Under the circumstances of this case a reasonably competent attorney would have called Caesar as a witness. Caesar would testify Chen was at home at about the time M. testified he was in her apartment raping her. If the jury disbelieved Caesar because he was Chen’s brother the defense would be no worse off than it was without Caesar’s testimony. But the jury would not necessarily disbelieve Caesar especially since he could testify in detail to the events of that morning and why he recalled the time he picked up his brother that particular morning. Moreover, aspects of his testimony would have been consistent with testimony from non-family members.
Compare Bergmann v. McCaughtry (7th Cir. 1995) 65 F.3d 1372, 1380 [decision not to call stepfather reasonable because “family members can be easily impeached for bias”] with Luna v. Cambra (9th Cir. 2002) 306 F.3d 954, 962 [“simple fact [potential witnesses] were family members did not render trial counsel’s failure to investigate and present their corroboration of Luna’s alibi harmless”].
As to the second reason, we explained above failure to comply with the statutory discovery rules or fear of sanctions by the court is not a legitimate “tactical” reason for failing to call a witness who may be able to keep the defendant out of prison for life.
II. IF A REASONABLE JUROR COULD FIND EVEN ONE OF CHEN’S UNCALLED WITNESSES CREDIBLE IT IS REASONABLY PROBABLE CHEN WOULD HAVE OBTAINED A MORE FAVORABLE RESULT.
In addition to showing his counsel’s performance was constitutionally deficient Chen must show there is a reasonable probability that, but for counsel’s unprofessional errors the result of the trial would have been more favorable. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. A reasonable probability, however, need not be shown by a preponderance of the evidence. It is only necessary to show “a significant but something-less-than-50 percent likelihood of a more favorable verdict.”
In re Thomas, supra, 37 Cal.4th at page 1256.
In re Thomas, supra, 37 Cal.4th at page 1256.
People v. Howard (1987) 190 Cal.App.3d 41, 48.
Chen’s defense had three objectives: (1) impeach M.’s credibility by showing she lied when she denied she was having an affair with Chen at the time she alleges he sexually assaulted her; (2) establish Chen’s alibi for the early morning hours when M. alleges the assault took place; and (3) explain the presence of Chen’s semen on the toilet tissue by establishing they had had consensual sex at her apartment the evening before the alleged sexual assault.
Although the semen recovered from M.’s vagina was inadequate for DNA testing the jury could reasonably infer Chen’s semen on the tissue must have come from M.’s vagina since she testified she wiped herself on toilet tissue after each round of rape.
The problem with this defense strategy lay not in its concept but in its execution. Indeed, it is difficult to conceive how a defendant in a sexual assault case is not prejudiced when his attorney wholly fails to investigate or present credible evidence the prosecuting witness lied about her romantic relationship with the defendant, there may not have even been an assault, if there was an assault the defendant was home in bed when it occurred and the presence of his semen on the toilet tissue was the result of earlier consensual sex with the defendant.
Instead of impeaching M. on her denial of an affair with Chen it was Chen who was impeached on the issue of the affair. The declarations filed in support of the habeas petition show, however, defense counsel had numerous witnesses who would have testified to Chen’s and M.’s romantic involvement, their lunches and trips together, his giving her money, her calling him late at night at home and his attempts to keep the affair secret from his wife.
In the reference proceeding the trial court determined a reasonable juror could find at least four of these witnesses credible. Had the jury heard and believed even one of these witnesses it is reasonably probable they would not have believed M.’s testimony she and Chen were just “friends.” It is also reasonably probable the jurors would have accepted Chen’s explanation why he told the police he was not having an affair with M.
See discussion of the testimony of Francisco Sosa at page 8, above; Sandra Leon at page 8; Wagner Sagustume at page 9 above; and Gustavo Diaz at page 9, above.
The attempt to establish an alibi for Chen failed because defense counsel called only two unconvincing witnesses to prove Chen was at home when the alleged attack occurred. One witness was Chen, whose credibility was destroyed by the prosecution, as discussed above. The other witness, Chen’s employer Steven Chapin, testified when he arrived at work at approximately 7:00 a.m. on the morning following the assault on M, Chen and his brother Caesar were already there. Chapin’s testimony was of little value because it would have been easy for Chen to have sexually assaulted M. in her apartment in Wilmington, left her apartment between 5:00 and 5:30 a.m. as she testified, and arrived at work in Compton, 15 miles away, before 7:00 a.m.
Defense counsel failed to call Vilma Campbell, whom the trial court determined a reasonable juror could find credible. Campbell would have testified Chen was at home in Lake View Terrace, 45 miles from Wilmington, and had driven to work with his brother sometime between 5:30 and 6:00 a.m. Taking Campbell’s testimony as true, Chen would have had to drive 45 miles at over 90 miles an hour to get from M.’s home to his home in time to leave for work at 6:00 a.m. Had defense counsel called Campbell it is reasonably probable the jury would have been receptive to Chen’s alibi.
See discussion of the testimony of Vilma Campbell at page 9, above.
Without the other two legs of the defense for support, Chen’s explanation how his semen was in M.’s vagina and on the toilet tissue naturally collapsed. It is reasonably probable, however, if the jury had heard from credible witnesses of an ongoing sexual relationship between Chen and M. and that Chen was at home in bed when the alleged assault took place the jurors would have been open to Chen’s explanation his semen was found in M.’s vagina and on the toilet paper because they had had consensual sex earlier that evening.
Prejudice becomes even more apparent when defense counsel’s errors are analyzed in light of the prosecution’s case. The case against Chen rested on three pieces of evidence: M.’s sense of smell, her missing key, and the presence of Chen’s semen on the toilet paper.
See Strickland v. Washington (1984) 466 U.S. 668, 696.
We have found no case upholding a conviction in which the perpetrator was identified solely by his scent. It is possible, of course, an attacker’s particular odor might give him away if, for example, he used a particularly distinctive after-shave or shampoo or worked in a unique environment. M, however, testified only that her attacker smelled like a truck driver. If there is such a thing as “Eau de Routier” it is not the kind of particularly distinguishing aroma which will support an identification especially in light of the fact there were at least 20 other truck drivers who drove for the same company as Chen and who knew M. through her brother, another driver for the company.
Compare People v. Scott (N.Y.App.Div. 1985) 485 N.Y.S.2d 379, 381 (victim identified defendant by physical characteristics, accent and “noticeable body odor”).
As to the missing key, people lose their keys all the time. Thus, the case for conviction came down to the presence of Chen’s semen. If even one juror believed Chen’s account of how it got onto the tissue and, presumably into M.’s body, it seems almost certain that juror would not have voted guilty.
In summary, the available testimony undermining M.’s credibility, showing M. and Chen had an ongoing affair and showing Chen was at home when the alleged attack took place, when coupled with Chen’s expert’s testimony the tears in M.’s vagina could have come from consensual sex, together with the weakness of the prosecution’s case, leads us to conclude a reasonable probability exists that but for defense counsel’s incompetent representation Chen would have obtained a more favorable outcome at trial.
Finally, should Chen be retried neither the People nor Chen nor any witness may refer to the trial court’s credibility determinations in the reference proceeding.
DISPOSITION
The judgment is vacated and the matter is remanded to the trial court for further proceedings in accordance with law.
We concur: PERLUSS, P. J. WOODS, J.