Opinion
NOT TO BE PUBLISHED.
Super .Ct. No. S01CRF0205.
HULL, J.
Lisa Ann Platz petitions for a writ of habeas corpus challenging her conviction for the 2001 murder of her then nine-year-old daughter. Petitioner contends her trial counsel provided constitutionally ineffective assistance when he failed to pursue a withdrawal defense to the prosecution’s felony murder theory and failed to take adequate steps to make sure she testified at trial. We conclude the evidence presented by petitioner in support of her petition fails to establish she was prejudiced by any alleged ineffective assistance and deny the petition.
Facts and Proceedings
The tragic facts of this case are taken from our opinion on the direct appeal of petitioner’s conviction, as supplemented by the appellate record, of which we take judicial notice (Evid. Code, § 452, subd. (d)), and the evidence presented in connection with petitioner’s habeas corpus petition in the superior court.
Petitioner and Jose Aramburo dated for a while and together had a daughter, Rebbeca, who was born on April 4, 1992. Not long thereafter, their relationship deteriorated and Jose moved out. (People v. Platz (2006) 136 Cal.App.4th 1091, 1093 (Platz).) Jose provided limited financial support for Rebbeca and, shortly after January or February 1994, petitioner moved to Alaska, where her family lived. (Id. at p. 1094.)
“By all accounts, [petitioner] was a devoted and effective parent. Rebbeca thrived. Jose knew they had moved to Alaska and he knew [petitioner]’s parents’ telephone number. He never contacted [petitioner] and Rebbeca. In March 1995 his new girlfriend, Angelina Haggard, gave birth to twin boys who lived only a few minutes. Angelina married Jose five months later.” (Platz, supra, 136 Cal.App.4th at p. 1094.)
Petitioner married Robert Platz in 1996, and he established a close relationship with Rebbeca. Robert attempted to adopt Rebbeca, but Jose resisted and the adoption was denied. Jose initiated court proceedings in Alaska to obtain custody and visitation of Rebbeca, but did not serve petitioner with notice of the action until nine months later. (Platz, supra, 136 Cal.App.4th at pp. 1094, 1095.)
“In the meantime, [petitioner]’s relationship with Robert [Platz] ended and she began dating James Csucsai. Together they left Alaska, looking for work and a new life. They traveled for six months, then settled in Ohio, living across the street from James’s sister. [Petitioner] was accepted to a business school and, having scored highly on her admissions test, was offered a work study job as well as admission.” (Platz, supra, 136 Cal.App.4th at p. 1094.) Rebbeca continued to flourish. (Ibid.)
“Then, to [petitioner]’s shock and surprise, Jose resurfaced. Although Rebbeca had not seen or heard from her father for five years, in April 1999 Jose served [petitioner] with a verified petition for determination of custody.... In May [petitioner] appeared in propria persona to obtain an extension of time to file an answer, but then failed to formally respond to the petition.
“In July the Alaska court entered a temporary visitation order. On August 4, 1999, a default was entered at Jose’s request. [Petitioner] participated in a telephone hearing on September 8. When asked if she would follow a court order to allow visitation, she candidly, but naively, responded: ‘I would love to say, yes, if I believed that it would not damage her. But I don’t know that. I cannot predict the future and I do not know how the child will react.’” (Platz, supra, 136 Cal.App.4th at p. 1095.)
Petitioner failed to follow the Alaska court’s order to integrate Jose into Rebbeca’s life, and her attitude toward Jose compromised her legal position in the custody case. On October 29, 1999, the Alaska court awarded custody to Jose. (Platz, supra, 136 Cal.App.4th at p. 1095.) “Just before Christmas, Jose, whom Rebbeca had not seen since she was a toddler, and her new stepmother, whom she had never met, flew to Ohio to take her from her mother. [Petitioner] tried to remove Rebbeca from school before their arrival. The school authorities called the police. [Petitioner] and Rebbeca were taken to the police station, where Jose and his wife took custody of Rebbeca.” (Ibid.)
The Alaska Supreme Court ultimately reversed the custody decision, and the authorities commenced a custody investigation. (Platz, supra, 136 Cal.App.4th at p. 1095.) By this time, Rebbeca had lived with the Aramburos for about a year. Rebbeca “expressed her desire to live with her mother to every counselor and investigator who interviewed her. Yet she was only allowed to speak to her mother four times a week, and often the Aramburos were not home at the designated times for the calls.” (Ibid.)
“Rebbeca spent the summer of 2000 with her mother. [Petitioner] took her to counseling to help her adjust to the change in custody. This counselor repeated what every other professional reported: the mother and child had a very strong bond and Rebbeca wanted to live with her mother. [Petitioner] returned Rebbeca to Washington at the end of the summer as ordered.” (Platz, supra, 136 Cal.App.4th at p. 1095.)
In light of petitioner’s bitterness toward Jose for uprooting Rebbeca, Jose’s stable family relationship with his new wife and another child, and the fact petitioner and James moved around frequently, court investigators recommended that Jose retain custody. (Platz, supra, 136 Cal.App.4th at p. 1096.)
Rebbeca spent her 2001 spring break from school with petitioner. At the end of the break, petitioner failed to return Rebbeca to Jose “because Rebbeca ‘begged her’ not to.” (Platz, supra, 136 Cal.App.4th at p. 1096.) In June 2001, petitioner was arrested for interfering with Jose’s custody rights. (Ibid.)
“Life continued to unravel for [petitioner] and James. James was embroiled in his own custody battles with his ex-wife. James, a veteran, owned at least four guns. With a history of being bipolar and delusional, his family became concerned that he was highly suicidal. In fact, his sister had surreptitiously removed guns from his car and hidden them in her house. Her concern proved prescient. In an angry e-mail James sent to his ex-wife on July 10, 2001, he warned that her desire to see him destroyed would backfire: ‘[D]on't wish for somethiong [sic] you may not really want to see.... [W]hen I go, I’m going out big.’ It was only [petitioner] and his kids, according to James at the time, who had kept him from falling ‘over the edge.’” (Platz, supra, 136 Cal.App.4th at p. 1096.)
On July 17, 2001, the family court ordered Lisa to have no further contact with Rebbeca. (Platz, supra, 136 Cal.App.4th at p. 1096.)
“On August 13 Lisa and James, both armed, approached Rebbeca and her stepmother as they were getting out of their car at day care. Rebbeca ran to her mother and hugged her after Lisa told her to get into the car. James threatened, ‘[I]f he comes looking for her, I’ll put a bullet through his head.’ They drove away.” (Platz, supra, 136 Cal.App.4th at p. 1096.)
For the next several weeks, petitioner, James and Rebbeca traveled through various states, camping along the way. At a library in Colorado, petitioner noticed James communicating with his sister via the internet. She later confronted him about it, complaining that such communications might be used to trace them. An argument ensued at their campsite and James assaulted petitioner, throwing her to the ground, sitting on her and slamming her head against the ground. A few minutes later, James got up and walked away. Later, James returned and asked how petitioner had injured herself. When petitioner told James he had done it, he said he did not remember doing so.
Petitioner decided she and Rebbeca needed to get away from James and, while James was off collecting firewood, petitioner and Rebbeca gathered some things and started walking toward a nearby town. However, James caught up with them after a short while and brought them back to the campground.
The next day, the three left their campsite and continued traveling. After a week or so, they arrived at a campground in South Lake Tahoe.
Their campsite was discovered by officers of the South Lake Tahoe Police Department at 1:00 a.m. on September 21. (Platz, supra, 136 Cal.App.4th at p. 1097.) “Within a half hour, police officers surrounded the tent and shined lights, and the police dog started barking. An officer shouted, ‘There’s no way out. Come on out, ’ and ‘If you try to flee, the dog will get you.’ Rebbeca started to cry. James unzipped the tent, yelling ‘Get the fuck away, ’ and the officer saw [petitioner] with a ‘concerned and surprised look on her face’ and a ‘very frightened’ Rebbeca in the back corner of the tent.” (Platz, supra, 136 Cal.App.4th at p. 1097.)
Evidence about what happened in the tent during the next nine hours is unclear. “Officer Robert Heindl testified on direct examination that shortly after the confrontation began, [petitioner] said: ‘“We’re all prepared to die. We’re all going to die in here. It’s going to be your fault that we all die.”’ But on cross-examination, [the officer] revised [petitioner’s] statement, claiming that she actually said: ‘“You’re going to kill us if you don’t go away. If you don’t leave, we’re all going to die.”’ Sergeant Terry Daniels, a 20-year veteran and the watch commander on the night of the murder, was standing about 15 feet from the tent and never heard [petitioner] speak. He attributed the statement ‘We’re all going to die here’ to James.” (Platz, supra, 136 Cal.App.4th at p. 1098.)
At some point early in the standoff, petitioner realized James had left his guns in his car. Later, James produced a knife from his backpack and cut a hole in the bottom of the tent in order to move the tent toward the car. Somewhere between 1:45 and 2:30 a.m., Officer Heindl heard a ripping sound from inside the tent and saw the tent lift off the ground and begin moving toward James’s car. An officer yelled, “‘Stop. We’re going to shoot, ’” the police dog barked, and radios started going off. Officers searched the car and found two handguns and an assault rifle. (Platz, supra, 136 Cal.App.4th at p. 1098.)
“Again, the officers differ on what happened next. Heindl testified that Rebbeca screamed, her screams became muffled, and she kicked the wall of the tent on the northwest corner. Officer Alfredo Ramirez testified the scream occurred before the tent was set down while everyone inside was yelling, and that the tent bulged mostly on the east and south sides. Heindl asked, ‘Why was she screaming?’ He testified that [petitioner] responded the dog was scaring Rebbeca, but that the dog did not bark until after the scream. On cross-examination, he admitted that the dog had barked when the tent started moving and the officers began shouting. The officer in charge of the dog testified the dog had barked a lot from the very beginning of the police action. This same officer also testified that the movement of the tent preceded the scream by an hour or an hour and a half. By Heindl’s calculations, the scream occurred by 2:30 a.m., whereas another officer recorded that the scream occurred at 3:56 a.m. An experienced crisis negotiator, who took position behind the white car at 4:54 a.m., was certain he heard Rebbeca whining at least an hour after that time.
“An FBI agent who had been trained in hostage negotiations but had never actually negotiated a release tried to lower James’s level of ‘emotionality.’ James, according to this agent, expressed anger at his ex-wife, Jose, and the Alaska court system. He professed his love for [petitioner] and Rebbeca and informed the agent, ‘“We’re trying to decide whether to kill ourselves.”’ The police officer who relieved the agent, a woman, was unable to establish any rapport with James. After an hour, the FBI agent resumed negotiations. When James’s voice became faint and they heard gurgling sounds around 10:30 a.m., the SWAT team stormed the tent.” (Platz, supra, 136 Cal.App.4th at pp. 1098-1099.)
The SWAT team “found the lifeless body of nine-year-old Rebbeca with rigor mortis already established. She was lying under her mother’s left side, covered by blankets. Their heads were close, facing each other. [Rebbeca’s] neck had been slashed with a knife. James was bleeding severely from the neck, and Lisa was bleeding from both wrists. Both [petitioner] and James were still alive.” (Platz, supra, 136 Cal.App.4th at p. 1097.)
James later hanged himself in his jail cell. Before doing so, he “made a variety of incriminating statements. On November 22 he wrote, ‘They say that no one who stands poised at the doorway to eternity steps through it with a lie on his lips. They say that deathbed confessions are always to be believed. And this letter is mine. [¶]... [T]he only image I have of it all was of a pair of hands, a knife and an innocent child laying [sic] lifeless beneath me. My next image was of you laying [sic] next to her, you were soaked in blood, your wrist was cut, my neck was bleeding. You looked very frightened. I think you were frightened of me....’
“A few days later, prison personnel moved a man into James’s cell who bore some resemblance to Jose Aramburo. A deputy testified that James got very agitated and said: ‘“He looks just like the man who was responsible for me being here. I can’t stay in there with that Mexican. I killed a little person because of a man who looks just like him. You need to move one of us or we will not last 24 hours.”’” (Platz, supra, 136 Cal.App.4th at p. 1100.)
With the death of James, petitioner was tried alone. The prosecution’s primary focus was premeditated murder based on a theory that petitioner had been the one to slash Rebbeca’s throat in order to keep her from returning to Jose. (Platz, supra, 136 Cal.App.4th at p. 1098.) However, the prosecution also pursued a theory of felony murder based on a homicide occurring during the course of a kidnapping. (Id. at pp. 1100-1101.)
On the felony-murder theory, the defense relied on the consent of the victim to disprove there had been a kidnapping. Defense counsel met with petitioner to prepare her to testify. However, petitioner was “an absolute emotional basket case, ” and counsel was unable to calm her down enough to prepare her testimony. He eventually advised her not to testify, and the defense rested without petitioner taking the stand. Following the close of evidence, the trial court ruled the kidnapping is controlled by the laws of the State of Washington, where Rebbeca had been abducted, and under Washington law, a child under the age of 16 cannot consent to a taking. (Platz, supra, 136 Cal.App.4th at pp. 1101-1102.) Defense counsel thereafter declined an offer to reopen to present additional evidence.
The jury returned a verdict of guilty to first degree felony murder (Pen. Code, § 190.2, subd. (a)(17)) and, on June 6, 2003, petitioner was sentenced to life without the possibility of parole.
We affirmed the conviction on February 15, 2006, agreeing with the trial court that the kidnapping is controlled by Washington law and Washington law precludes a consent defense under the facts of this case. (Platz, supra, 136 Cal.App.4th at pp. 1102-1103.) However, we further concluded a consent defense would not have been available under California law either. (Id. at p. 1105.)
In the unpublished portion of our opinion, we concluded, among other things, that petitioner had not received ineffective assistance of counsel. On the contrary, we determined petitioner “was the beneficiary of superb representation throughout the pretrial proceedings, trial, and sentencing hearing.” (People v. Platz (Feb. 15, 2006, C044660).)
Petitioner filed a petition for review in the California Supreme Court, which was denied on June 14, 2006.
On September 11, 2007, petitioner filed a pro se habeas corpus petition in the United States District Court for the Eastern District of California (Platz v. Hornbeak, No. CIV S-07-1882 MCE KJM P). The following day, she filed a pro se habeas corpus petition in the El Dorado County Superior Court (In re Platz, No. SC2007 0179). The superior court issued an order to show cause and appointed counsel for petitioner on October 25, 2007. On December 5, 2007, the federal district court appointed counsel for petitioner and stayed the proceedings pending disposition of the state court action.
In the state court proceeding, petitioner claimed ineffective assistance of counsel by virtue of her attorney’s failure to raise a withdrawal defense to the felony murder charge. In essence, plaintiff asserted she effectively withdrew from the kidnapping when, approximately one week before the murder, she attempted to take Rebbeca and flee from James at the Colorado campsite.
Following an evidentiary hearing at which both petitioner and her trial counsel testified, the superior court found no ineffective assistance and, on July 21, 2008, granted the People’s motion to dismiss the petition. The court found insufficient evidence to support a withdrawal defense.
On December 15, 2008, petitioner filed the instant petition, again claiming ineffective assistance of counsel in failing to raise a withdrawal defense. Petitioner also claims ineffective assistance in failing to take appropriate steps to assure she would be able to testify at trial. We issued an order to show cause on November 23, 2009.
Discussion
I
Introduction
“The right to file a petition for writ of habeas corpus is guaranteed by the state Constitution (Cal. Const., art. I, § 11), and regulated by statute ([Pen. Code, ] § 1473 et seq.).” (In re Harris (1993) 5 Cal.4th 813, 824-825.) However, post-conviction habeas corpus relief is an “extraordinary remedy.” (In re Connor (1940) 16 Cal.2d 701, 709.) A judgment of conviction is presumed valid. (In re Bell (1942) 19 Cal.2d 488, 500.) “For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1260.)
Although there is no express legislative limitation on post-conviction petitions for writ of habeas corpus, the courts have precluded use of such petitions as a second appeal. (In re Foss (1974) 10 Cal.3d 910, 930.) Accordingly, when a petition for writ of habeas corpus raises an issue that was raised and rejected on direct appeal, the petition will normally be denied. (In re Harris, supra, 5 Cal.4th at p. 825.) The same applies to issues that could have been, but were not, raised on direct appeal. (Id. at p. 829.)
“Postconviction habeas corpus attack on the validity of a judgment of conviction is limited to challenges based on newly discovered evidence, claims going to the jurisdiction of the court, and claims of constitutional dimension.” (In re Clark (1993) 5 Cal.4th 750, 766.) Regarding the latter, claims challenging the adequacy of a defendant’s legal representation, either at trial or on appeal, go to his or her constitutional right to the assistance of counsel. Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23 Cal.3d 412, 422.) This right “entitles the defendant not to some bare assistance but rather to effective assistance.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
Petitioner contends her trial attorney’s failure to pursue a withdrawal defense and to take adequate steps to prepare her to testify amounted to ineffective assistance under the applicable constitutional standards. Petitioner argues this is especially true given that the only defense pursued by defense counsel to the felony murder theory--consent--was precluded by the trial court.
The People argue petitioner’s claim of ineffective assistance comes too late. They argue all the facts relating to the withdrawal defense were known to petitioner and her attorney at the time of trial yet petitioner waited more than four years before raising the issue in her petition for writ of habeas corpus in the superior court. They further argue, in any event, the evidence does not support a withdrawal defense and, therefore, petitioner did not receive ineffective assistance of counsel.
As explained hereafter, we reject the People’s timeliness argument. However, we agree the evidence presented by petitioner in support of her petition would not have supported a withdrawal defense. We further conclude petitioner failed to establish ineffective assistance in connection with her failure to testify.
II
Timeliness
One seeking relief by way of habeas corpus must do so “without substantial delay.” (In re Harris, supra, 5 Cal.4th at p. 828.) “It has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief. ‘[I]t is the practice of this court to require that one who belatedly presents a collateral attack such as this explain the delay in raising the question.’ [Citation.]... [S]uch explanation [is] ‘particularly necessary’ where a petitioner has made prior attacks on the validity of the judgment without raising the issues. [Citation.] The burden is one placed even on indigent petitioners appearing in propria persona, and is not met by an assertion of counsel that he or she did not represent the petitioner earlier.” (In re Clark, supra, 5 Cal.4th at p. 765, fn. omitted.)
Petitioner was convicted in June 2003. Her petition for writ of habeas corpus was not filed in the superior court until September 2007, more than four years later. It is undisputed petitioner and her trial counsel were well aware of the facts giving rise to her purported withdrawal defense prior to her conviction and, hence, prior to her direct appeal.
In addition to finding no merit in her petition, the superior court concluded the petition was untimely, in light of the fact trial counsel “had some knowledge of” the facts underlying the withdrawal defense and appellate counsel was “well aware of” the facts at the time the appeal was filed.
The People contend the superior court correctly concluded the petition in that court was untimely, inasmuch as both trial and appellate counsel were aware of the facts relating to the withdrawal defense and those facts have not changed since petitioner’s trial. They further argue petitioner’s “unjustified delay” in filing her petition in this court should bar its consideration.
However, the People’s argument ignores the fundamental basis of petitioner’s claim. It is indeed undisputed that both petitioner and defense counsel were well aware of the facts giving rise to petitioner’s withdrawal claim. That is the whole point of the petition. Petitioner contends counsel’s failure to pursue a withdrawal defense despite full knowledge of the facts was ineffective assistance. In other words, while counsel was aware of the facts, he failed to recognize their legal significance. As the state high court has explained, a “habeas corpus petition must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim.” (In re Harris, supra, 5 Cal.4th at p. 828, fn. 7, italics added.)
As described more fully below, the evidence presented in connection with the instant petition established that petitioner’s trial counsel failed to recognize the legal significance, if any, of the facts relating to her purported withdrawal from the kidnapping. The question presented for purposes of her ineffective assistance claim is whether counsel should have recognized such legal significance. However, this is essentially the same question underlying the timeliness issue. If petitioner’s trial counsel should have recognized the legal significance of the facts at the time they came to his attention, her appellate counsel should likewise have recognized it and pursued her ineffective assistance claim earlier.
At any rate, because the People restrict their timeliness argument to whether petitioner and her counsel were aware of the underlying facts, and ignore the question whether they should have recognized the legal significance of those facts, we need not consider this argument further. A point not argued or supported by citation to authority is forfeited. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
III
Ineffective Assistance
“‘“[T]he right to counsel is the right to effective assistance of counsel.”’ (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674].) ‘The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ (Ibid.) ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction... resulted from a breakdown in the adversary process that renders the result unreliable.’ (Id. at p. 687.)” (In re Valdez (2010) 49 Cal.4th 715, 729.)
At petitioner’s trial, the thrust of the prosecution, and hence the focus of the defense, was on whether petitioner or James had been the one to cut Rebbeca’s throat. (Platz, supra, 136 Cal.App.4th at p. 1100.) However, the simplest and most obvious theory on which to convict petitioner of first degree murder was felony murder based on the fact the killing occurred during the course of a kidnapping. (Id. at p. 1101.)
On the felony murder theory, the defense relied solely on consent of the victim to disprove the underlying felony of kidnapping. (Platz, supra, 136 Cal.App.4th at p. 1101.) This proved to be an unsound strategy, as both the trial court and this court concluded consent is not a defense to the kidnapping.
After the defense rested, the trial court issued its ruling precluding use of a consent defense. The defense was given an opportunity to reopen to present additional evidence, but declined.
At the hearing on the petition for writ of habeas corpus in the superior court, petitioner’s trial counsel testified that petitioner told him prior to trial about the incident in Colorado. Counsel indicated petitioner told him James had beaten her and she had thereafter tried to take Rebbeca away. Counsel checked the campgrounds in the area and found one that matched petitioner’s description. He also recalled seeing bruising around petitioner’s ear which she claimed was caused by James.
Counsel testified that he researched the defense of withdrawal and thought it might be a way to go but focused instead on consent. When asked why he did not pursue the withdrawal defense as well, counsel explained: “I don’t have a good answer for you on that one. I was convinced that the mountains--we have mountains of evidence with [sic] relationship with Rebecca and [petitioner]. I became convinced that that was the absolute clear, right answer to this equation and that the--the fact that James had unraveled in Colorado was merely one more anecdotal note in this--the true defense, which was that this child had not been kidnapped, and I didn’t pursue the other defense.”
Petitioner contends effective counsel would have done a better job of researching the consent defense and realized its legal vulnerability. Petitioner further contends effective counsel would have recognized a viable withdrawal defense and pursued it at trial.
It is readily clear petitioner’s claim for ineffective assistance hinges on whether she had a viable withdrawal defense. If not, then counsel’s failure to pursue it had no bearing on the outcome of the case. In other words, even if failure to pursue a withdrawal defense fell below the objective standard of care, if such defense was ultimately unavailing, petitioner was not prejudiced.
Under the general aider and abettor instructions, CALCRIM No. 401 identifies the following elements required to mount a successful withdrawal defense: “1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime. [¶] AND [¶] 2. He or she must do everything reasonably within his or her power to prevent the crime from being committed. He or she does not have to actually prevent the crime.”
But in People v. Shelmire (2005) 130 Cal.App.4th 1044, the court characterized the second element more strictly, requiring that the defendant “did everything in his power to prevent the crime or crimes from being committed.” (Id. at p. 1055, italics added.) The court in Shelmire cited as support People v. Ross (1979) 92 Cal.App.3d 391 (Ross) and People v. Norton (1958) 161 Cal.App.2d 399 (Norton).
In Ross, the court found the jury was adequately instructed with former CALJIC No. 3.02 (1974 rev.) that “no criminal liability attached where an accomplice notifies the other party ‘of his intention to withdraw from the commission of the crime and... [does]... everything in his power to prevent its commission.’” (Ross, supra, 92 Cal.App.3d at p. 405.) The CALJIC instruction cites as support Norton.
In Norton, the defendant contended the court’s instruction on withdrawal by an aider and abettor was erroneous. The instruction read: “‘The responsibility of one who has knowingly and with criminal intent aided and abetted the commission of a crime does not cease, that is, his liability for the crime does not cease unless within time to prevent the commission of the contemplated act, he has done everything practicable to prevent its consummation. If he changes his mind, he must do everything practicable to prevent the crime from being committed. It is not enough that he may have changed his mind, and tries when too late to avoid responsibility. He will be liable if he fails within time to let the other party know of his withdrawal, and does everything in his power to prevent the commission of the crime.’” (Norton, supra, 161 Cal.App.2d at p. 403, italics added.)
Although the instruction at issue in Norton stated both that the defendant had to do “everything practicable” and that he had to do “everything in his power, ” the court found the instruction proper. (Norton, supra, 161 Cal.App.2d at p. 403 .) The court cited as support People v. King (1938) 30 Cal.App.2d 185 (King) and People v. Ortiz (1923) 63 Cal.App. 662 (Ortiz).
In King, the court stated an aider and abettor will be liable for the crime “unless within time to prevent the commission of the contemplated act he has done everything practicable to prevent its consummation. It is not enough that he may have changed his mind, and tries when too late to avoid responsibility. He will be liable if he fails within time to let the other party know of his withdrawal, and does everything in his power to prevent the commission of the crime.” (King, supra, 30 Cal.App.2d at p. 204.) The court cited as support Ortiz.
In Ortiz, the trial court refused defense instructions indicating an aider and abettor’s liability ceases once he withdraws from the common scheme and communicates that withdrawal. This court found no error, explaining: “Responsibility of an accessory ‘does not cease simply because, after starting the ball, he changes his mind, and tries, when too late, to stop it. To emancipate him from the consequences, not only must he have acted in time, and done everything practicable to prevent the consummation, but the consummation, if it takes place, must be imputable to some independent cause.’” (Ortiz, supra, 63 Cal.App. at p. 670, quoting Wharton's Criminal Law (11th ed.) § 267.)
It is clear that, while the courts since our decision in Ortiz have used the language “everything in his power” to express the required effort of a withdrawing aider and abettor to prevent the crime from occurring, such language was never intended to assert a more stringent standard than “everything practicable.” And although the CALCRIM instruction uses the phrase “everything reasonably within his or her power, ” we find this merely another way of saying everything practicable. Thus, in the case of an aider and abettor, withdrawal requires that he or she both communicate withdrawal and do everything reasonably within his or her power to prevent the offense.
Of course, the present matter does not readily fit the aider and abettor model. “[I]n a case involving general liability as an aider and abettor for the originally contemplated crime, a defendant will not be liable for the contemplated crime despite the fact that he aided, promoted, encouraged, or instigated the commission of the crime with the intent that it be committed, if he effectively withdraws from participation in the crime before it is committed.” (People v. Fiu (2008) 165 Cal.App.4th 360, 384.) And even where the defendant assists in the commission of the contemplated crime, he will not be held liable for any subsequent crimes that are a natural and probable consequence of the target offense if he effectively withdraws before commission of those subsequent offenses. (Ibid.)
But in the present matter, the target offense was kidnapping. “[T]he crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety....” (People v. Barnett (1998) 17 Cal.4th 1044, 1159.) In this case, the kidnapping commenced on August 13, 2001, and continued until Rebbeca’s death on September 21. Thus, we do not have a situation where the aider and abettor participated in one completed crime and then withdrew before commission of another. Petitioner was a full participant in the kidnapping of Rebbeca, which crime remained ongoing at the time of Rebbeca’s death. Thus, the question becomes whether one who participates in a kidnapping may thereafter withdraw from that ongoing crime for purposes of application of the felony murder rule. (See, e.g., People v. Brown (1962) 26 Ill.2d 308, 313 [186 N.E.2d 321] [“[W]ithdrawal may not be effectively made from a felony murder when the ‘transaction which begets it has actually been commenced’”]; but see Smith v. Dugger (11th Cir. 1988) 840 F.2d 787, 792 [“In order for the jury to be charged with Smith’s proposed instruction [on withdrawal], Smith had to produce evidence that he withdrew from the kidnapping or the robbery before the victim’s death”].)
However, we need not address that issue here. As we shall explain, even assuming petitioner could have avoided application of the felony murder rule by withdrawing from the ongoing kidnapping before the death, the facts of this case do not support a withdrawal defense and, hence, failure to raise it was not ineffective assistance.
In her testimony before the superior court, petitioner testified that in Colorado they stayed at a makeshift campground near a ski resort. They were nearly out of money and were arguing about money and what they were going to do next. After returning from the library where petitioner observed James sending an email to his sister, petitioner and James argued and he assaulted her as described earlier. At that point, petitioner decided she and Rebbeca needed to leave James for their own safety.
When James went off to gather firewood, petitioner directed Rebbeca to grab some of her things and they started walking up a trail past their car and toward the highway. The path paralleled the highway and was covered by trees. Petitioner’s plan was to walk to a nearby town “and find some help.” She had no money and James had the keys to the car. Earlier, petitioner had seen a cabin in the town with “Sheriff’s Department” written on it. Petitioner intended to go to the cabin once she got into town. However, before they got 20 feet down the trail toward town, James showed up at their side. He was armed and asked petitioner where she was going. She told him they were leaving and James said, “‘No, you’re not.’” Rebbeca was cold and scared and told James she wanted to go back. James was not angry, but “intense, ” and he scared petitioner. The three returned to the campground, where they ate and went to bed.
The next morning they struck camp and departed. After that, James stayed close to petitioner and Rebbeca. They continued to travel around and, after a week, arrived at Lake Tahoe. They found “makeshift places to stay.” They stayed a few places around the lake until they arrived at the campground where they were discovered by the police. During this period, things were quiet between petitioner and James. She did not want to speak to him for fear of causing an argument. They stopped to get things to eat and for gasoline. When they bought food, they all went into the store together. While there, petitioner did not call for help, because James was always with them and he was always armed. Petitioner was scared for both Rebbeca and herself.
At one point, the three went to a library in Reno. James was again armed. The children’s section of the library was next to the computer area, so they again remained together. Petitioner was never in a public place where she could get anyone’s attention without James knowing about it. Petitioner believed they were working their way to Las Vegas and she thought she might make her escape in a casino, where James could not bring his guns.
As explained above, there are two requirements for application of a withdrawal defense. First, the party must notify the other principals of her intention to withdraw from the commission of the crime. Second, she must do everything reasonably within her power to prevent the crime from occurring.
As the superior court concluded, petitioner did not satisfy either of these requirements. She did not communicate to James her intention to withdraw from the kidnapping. On the contrary, for all James was told, petitioner’s actions in Colorado were an attempt to continue the kidnapping without him. All she said to James was that they were leaving. She did not say she was taking Rebbeca and turning herself in.
Petitioner argues her actions effectively communicated her intent to turn herself in, inasmuch as she had no money and no means of transportation. However, despite petitioner’s unstated intent to walk to the Sheriff’s Department cabin, James had no reason to believe that was where she was headed. For all James knew, petitioner could have been heading to town to find a sympathetic resident to take her in.
As for the second requirement, while it is true petitioner took some action to end the kidnapping when she tried to take Rebbeca to the Sheriff’s Department cabin, it is readily clear petitioner did not do everything reasonably within her power to end the kidnapping. Petitioner claims she could not have done more, because James was always with them and was always armed. However, it is undisputed the three were often in public places and around others, yet petitioner made no effort to alert anyone of the situation or obtain help in getting Rebbeca to safety. At one point, the three were in the Reno public library together. At another point, they were in a Safeway grocery store. On some occasions, including the fatal night, they were in public campgrounds with other campers around.
On the night of the killing, petitioner made no attempt to get help from the police for herself or Rebbeca. Even when petitioner discovered James had left his guns in the car, petitioner made no attempt to get help. On the contrary, she assisted in James’s efforts to resist the efforts of the police to negotiate a peaceful resolution. She in fact refused to speak with the hostage negotiator altogether.
At oral argument, defense counsel argued the evidence presented in connection with the petition for habeas corpus was sufficient to create an issue of fact for a jury as to whether petitioner did everything reasonably within her power to end the kidnapping. However, that is not the applicable standard. In order to prevail on a claim of ineffective assistance, the defendant must establish both deficient performance and prejudice. “‘Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”’” (In re Avena (1996) 12 Cal.4th 694, 721.)
Thus, in order for this court to find prejudice, it is not sufficient that we find sufficient evidence to create an issue of fact for the jury. We must conclude that, but for counsel’s error, there is a reasonable probability that the result of the trial would have been different. In other words, there must be sufficient evidence to create a reasonable probability that defendant would have prevailed on a withdrawal defense. We find petitioner failed to meet this burden.
This is without doubt a tragic case. However, it is a tragedy of petitioner’s making. When petitioner decided to take Rebbeca from her father and stepmother at gunpoint, this set in motion the chain of events that ultimately led to Rebbeca’s death. And while one might reasonably argue about the wisdom of prosecuting petitioner for first degree murder under the circumstances of this case, the fact remains the death occurred during the course of a kidnapping that petitioner voluntarily committed. That being the case, the felony-murder rule applies.
“[T]he first degree felony-murder rule is a creature of statute.” (People v. Dillon (1983) 34 Cal.3d 441, 463.) Courts do not sit as super-legislatures with the power to judicially abrogate a statute merely because it may appear unjust in a given case. (Ibid.) Kidnapping is a serious and dangerous felony, which no doubt explains why it has been included within the felony-murder rule. Absent an effective withdrawal from the underlying offense, which we do not find here, petitioner was liable for any death that occurred in the course of the kidnapping.
Because petitioner had no viable withdrawal defense, her ineffective assistance claim necessarily fails. Without a viable withdrawal defense, trial counsel’s failure to assert it could not have prejudiced petitioner’s case.
IV
Failure to Call Petitioner to Testify
The defense intended all along that petitioner would testify on her own behalf. Near the end of trial, defense counsel and an assistant met with petitioner to prepare her testimony. However, they found her “an absolute emotional basket case” and were unable to calm her down enough to prepare her to testify. Defense counsel eventually advised petitioner not to testify, and she did not take the stand at trial. Nor did counsel seek additional time to prepare petitioner to testify after the court rejected the consent defense.
Petitioner contends defense counsel’s failure to take appropriate steps to assure she would be prepared to testify at trial amounted to ineffective assistance. She argues counsel should have begun preparing her earlier and should have made better use of a marriage, family and child counselor who had been retained to help petitioner with stress management. Petitioner contends it was also ineffective assistance not to seek a short continuance in order to have sufficient time to prepare her to testify.
Presumably, if called to the stand, petitioner would have testified about the events in Colorado which, she argues, support her withdrawal defense. However, as explained in the preceding section, petitioner had no viable withdrawal defense.
Petitioner contends her claim of ineffective assistance based on her failure to testify does not depend on our resolution of her claim of ineffective assistance based on counsel’s failure to present a withdrawal defense. She argues that if she had testified, “one or more jurors would not have returned a true finding on the special circumstance allegation.” That special circumstance finding, which subjected petitioner to a sentence of life without the possibility of parole, required the jury to find either she was the actual killer, she aided and abetted the killing with intent to kill, or she was a major participant in the kidnapping who aided and abetted it with reckless indifference to human life. (See People v. Platz, supra, C044660.) In petitioner’s version of the facts, she was not the actual killer and did not aid and abet James with intent to kill. Thus, the only thing the jury could possibly have found was that she was a major participant who acted with reckless indifference to human life. Petitioner argues that if she had testified as she did in the habeas corpus proceeding, one or more of the jurors would have had a reasonable doubt that she acted with reckless indifference.
We are not persuaded. Defense counsel testified at the habeas corpus proceeding that he did not begin preparing petitioner earlier because he had been working 12- and 14-hour days on the case, attending trial during the day and preparing writs and interviewing other witnesses in the evening. Counsel indicated petitioner was an intelligent person and they had already spent a lot of time together, so he assumed they would only need to go over a few things in preparation. He further testified he did not prepare petitioner several days in advance, as was his custom, because he “thought she was smart, very smart and could handle this.” Thus, it is readily clear counsel’s failure to prepare petitioner earlier was not a matter of neglect so much as a tactical decision to concentrate on more pressing matters in the case.
“‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.]’ (Strickland v. Washington, supra, 466 U.S. at p. 689.)” (In re Valdez, supra, 49 Cal.4th at pp. 729-730.)
At any rate, petitioner’s argument assumes that if counsel had taken additional steps to prepare her to testify, had sought a continuance, or had made more use of the marriage, family and child counselor, she would have been able to testify effectively. However, there is nothing in the record to support this assumption. There is no evidence that earlier preparation, a continuance to allow belated testimony, or further assistance from the counselor would have had any impact on petitioner’s emotional condition or her ability to testify. The fact she was able to testify at the hearing on her habeas corpus petition, many years after the event and many years after sitting through a trial in which the events of the murder were described in excruciating detail, has little or no bearing on that issue.
Thus, while this is an unfortunate case, it is unfortunate because of petitioner’s actions, not because of anything defense counsel did or did not do at trial. Petitioner has failed to overcome the presumption that trial counsel’s decision not to call her as a witness fell below the range of reasonable professional assistance.
Disposition.
The petition for writ of habeas corpus is denied.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.