Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA081275, Bruce F. Marrs, Judge.
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Denied without prejudice.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys Generals, for Plaintiff and Respondent.
SUZUKAWA, J.
The jury convicted defendant Delvion Lamar Adams of second degree robbery (Pen. Code, § 211) and attempted second degree robbery (§§ 211, 664), and the trial court imposed a third strike sentence of 35 years to life. In this consolidated appeal and petition for a writ of habeas corpus, defendant raises related issues of ineffective assistance of counsel and denial of due process. For the reasons that follow, we affirm the judgment on appeal and dismiss the petition without prejudice.
All further undesignated statutory references are to the Penal Code.
In a bifurcated proceeding, the trial court found true the allegations of defendant’s two strike priors for first degree burglary. (Pen. Code, §§ 459; 1170.12, subds. (a)-(d); 667, subds. (b)-(i).)
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2007, Andre Babb and his cousin Paul Howell were approached in a parking lot by the driver of a silver car (later identified as defendant). Defendant asked Babb and Howell where they were from and, after identifying himself as a Rolling 60’s gang member, ordered them to empty their pockets. When Babb and Howell did not comply, defendant displayed a gun. Babb then gave up his wallet, which contained about $62 to $82, and Howell emptied his pockets. Defendant took Babb’s wallet and warned that he would shoot if they followed him or looked at his license plate number.
Babb and Howell followed defendant in their cars and called 911 to report that they had been robbed by a Black male in a silver car (both 911 recordings were played at trial). Howell lost sight of defendant’s car but provided a partial license plate number of “5XAA.” As Babb reported the vehicle’s location, a police officer who had been alerted by the 911 operator stopped briefly to confer with Babb before leaving to pursue the vehicle in the direction indicated by Babb.
Upon hearing the vehicle description, Commander Marc Taylor of the West Covina Police Department spotted a silver Camry on the 10 freeway with license plate number 5XAA426, and issued a broadcast of its location. Officer Mohler responded to the location and signaled the Camry to pull over to the right shoulder. As the Camry slowed down, defendant jumped out of the passenger door while the car was still moving. Defendant ran down the embankment as the Camry rolled over the embankment and crashed into a fence.
Mohler parked his patrol car and ran after defendant, who was heading toward a nearby shopping center. Reginald Vigilant, a Target employee, saw a group of police officers chasing a man with no shoes (later identified as defendant). Defendant came over the fence and, as he ran past Vigilant, signaled him to be quiet before going inside a storage container in the loading dock area.
Vigilant told the pursuing officers that defendant was inside the storage container. When defendant emerged from the container, he was not wearing any shoes and he had $63 in his pocket. One shoe was found near the side of the freeway and another was found near the loading dock.
Babb and Howell were brought to the location where defendant was being detained and they both identified him as the perpetrator. Babb’s wallet and identification were found in the Camry, along with an Airsoft pistol or B.B. gun that was a replica of a.357 magnum semiautomatic.
At trial, Babb and Howell testified that defendant, whom they did not know, was the perpetrator of the robbery. Commander Taylor and Officer Mohler identified defendant as the driver who had jumped out of the Camry, and Vigilant identified defendant as the man with no shoes who had gone inside the storage container.
The jury was informed that both Babb and Howell had prior theft convictions. During their cross-examination, defense counsel accused them of lying about the robbery. Defense counsel pursued a line of inquiry consistent with his opening statement that defendant was simply trying to collect the money that was owed by Babb for the purchase of some televisions for Babb’s car. However, Babb and Howell denied defense counsel’s accusations and adhered to their testimony that defendant, a complete stranger, had robbed them.
As a result of defense counsel’s cross-examination of Babb and Howell, the prosecutor conducted an additional investigation during the trial and located another witness to buttress their testimony. The witness, Adriana Padilla, was employed at an insurance office near the parking lot where the robbery occurred. Over a defense objection that Padilla was not previously identified as a witness, Padilla testified that on the day of the robbery, Babb and Howell were in her office to discuss insurance matters and, shortly after leaving her office, they came back and told her that they had just been robbed in the parking lot.
Defendant, who elected not to testify, presented no witnesses.
Defense counsel stated on the record that he had considered calling two defense witnesses, but would not do so because their testimony might not be favorable.
On May 30, 2008, the jury reached a verdict after deliberating for about three hours. The jury found defendant guilty of second degree robbery (count 1) and attempted second degree robbery (count 2).
On June 9, 2008, the California State Bar issued an order placing defendant’s privately-retained attorney Stephen Hollingsworth on inactive membership status (effective June 12, 2008) under Business and Professions Code section 6233, which pertains to a diversion and assistance program for attorneys who are impaired by drugs, alcohol abuse, or mental illness. After receiving notice of the State Bar order, the trial court appointed a deputy public defender to represent defendant for the remainder of the case.
“The Attorney Diversion and Assistance Act (B. & P.C. 6230 et seq.) created the Attorney Diversion and Assistance Program in 2001 to provide services for the treatment and recovery of attorneys impaired from drug or alcohol abuse or mental illness, so that the attorneys may be ‘returned to the practice of law in a manner that will not endanger the public health and safety.’ (B. & P.C. 6230.) The State Bar administers the program (B. & P.C. 6231, 6232(a)), and must actively inform attorneys and the general public of it (B. & P.C. 6236). Neither the program nor its authorization limits or alters the Supreme Court’s power to discipline or disbar attorneys. (B. & P.C. 6237.) (See 22 California Lawyer 34 (January 2002) [help for addicted attorneys].) (For rules implementing program, see Rules of Procedure of the State Bar, Rule 800 et seq.)” (1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 356, pp. 458-459.)
On August 5, 2008, the trial court conducted a bench trial of the bifurcated prior conviction allegations. The trial court found that defendant had suffered two strike prior convictions in 2004 and 2005 for first degree burglary. (§§ 459; 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) The trial court then heard several motions before imposing sentence.
The trial court denied defendant’s motion to dismiss one of the prior strike convictions. (§ 1385; People v. Superior Court (Romero)(1996) 13 Cal.4th 497.) It concluded that because defendant had committed the 2005 burglary while on probation from the 2004 burglary and had committed the present offenses less than three years later, he did not fall outside the spirit of the “Three Strikes” law.
Of relevance to this appeal, defendant moved for a new trial based on Hollingsworth’s ineffective assistance due to apparent mental illness. In support of the motion, defendant argued that a mistrial should have been declared on the court’s own motion because of Hollingsworth’s “bizarre behavior and comments, fragile emotional state(s), and apparent mental disorganization/illness which resulted in a jury more likely than not biased against the defendant.” However, defendant presented no direct evidence of a mental illness or medical condition that would have interfered with Hollingsworth’s ability to represent him at trial, and relied solely on inferences drawn from Hollingsworth’s conduct during and after trial, including the examples set forth in the margin. Defendant noted that because Hollingsworth had performed with such “apparent confusion, bizarre behavior and comments,” “an exasperated victim” was led to inquire in disbelief during cross examination: “A: ‘You’re an attorney, sir? [¶] ([Hollingsworth]): No. I’m a martial artist.’” Later, the same witness provoked laughter when he commented during cross-examination: “‘There’s got to be a hidden camera in here somewhere.’ (Laughter).” Defendant also pointed out that Hollingsworth was repeatedly sanctioned in this and other cases for failing to comply with court orders.
The motion cited the following instances of unusual behavior or ineffective assistance at trial: (1) Hollingsworth displayed his unfamiliarity with the charges when he inquired whether there was a gang allegation; (2) Hollingsworth behaved strangely when he stated “a la Dr. Seuss” that defendant’s clothing for trial was “[i]n the back of my blue Buick, 1991, there is a blue suit with a blue tie... he’ll be wearing brown shoes and some gray socks”; (3) Hollingsworth spoke in a disjointed manner about scolding his secretary, going to the thrift store for clothing, and his possession of golf clubs; (4) during voir dire, Hollingsworth was ineffective when, after announcing that the panel was perfect, he made one peremptory challenge and then accepted a panel that included prospective jurors who were either crime victims (burglary, robbery, and domestic violence) or relatives of police officers and attorneys; (5) Hollingsworth appeared unstable during voir dire when he broke down in tears after a prospective juror stated that he had tested rockets for 30 years; (6) Hollingsworth was repeatedly admonished for impinging on the prosecutor’s physical space in the courtroom; (7) Hollingsworth’s unusual behavior prompted the trial court to inquire about his emotional state; (8) Hollingsworth requested that the court allow his secretary (Barajas) to sit at counsel table to assist him at trial because of his purported vision problem; (9) Hollingsworth’s unusual behavior led the trial court to hold a closed hearing regarding his mental and medical condition during which defendant expressed a desire to proceed with Hollingsworth as his retained counsel; (10) after inquiring if he had exhausted his peremptory challenges when he had 19 of 20 challenges remaining, Hollingsworth abruptly changed his mind about excusing a potential juror and accepted the panel; and (11) Hollingsworth accepted a jury that included six crime victims (auto burglary, burglary, theft, robbery) and several relatives of police officers.
According to the record, Hollingsworth was repeatedly fined for tardiness in this case. In addition, the record contains a posttrial, June 6, 2008 Los Angeles Times article with the headline: “Judge orders chronically late lawyer jailed in Compton [¶] Stephen Charles Hollingsworth appeared in court in handcuffs and a yellow jailhouse uniform after he was sanctioned for repeated tardiness.”
Defendant asserted that Hollingsworth’s strange behavior was also exhibited outside the courtroom. For example, defendant related an incident when Hollingsworth was seen “washing his face in the drinking fountain and ‘dancing or doing some act with his cane in front of the jury.’” In addition, defendant produced evidence of Hollingsworth’s posttrial arrest for domestic violence against Barajas, his legal secretary, which resulted in a plea of “no contest to P.C. 243(c).”
According to the record, on July 15, 2008, Hollingsworth was fined and sentenced to three years of probation and 45 days in county jail, ordered to enroll in a domestic violence treatment program, and credited and released for time served.
In opposition to the new trial motion, the prosecutor argued that Hollingsworth had displayed a definite trial strategy by cross-examining the complaining witnesses to highlight the “many inconsistencies” in their testimony, especially in comparison with their preliminary hearing testimony. The prosecutor also asserted that Hollingsworth’s closing argument had “touched upon all the issues raised in the cross-examination and at times was very effective.” The prosecutor stated that Hollingsworth had highlighted the fact that Babb and Howell were convicted felons, which was the weakest point in the prosecution’s case. Additionally, the prosecutor asserted that Hollingsworth had “exercised some diligence” in locating potentially relevant witnesses, even though none could be persuaded to testify. In conclusion, the prosecutor argued that despite “some bizarre moments” and “unorthodox” behavior, “no stone was apparently left unturned, particularly with [regard to] the accusation” that the victims had lied about the robbery.
In denying the new trial motion, the trial court noted that: (1) defendant had not presented any “testimony or medical evidence” of a diagnosed mental illness, but was relying solely on a theory of “[a]pparent mental disorganization or illness”; and (2) after Hollingsworth had cried during voir dire, the court conducted a closed hearing during which defendant, who was present at the closed hearing, had stated that he wished to continue with Hollingsworth as his privately-retained counsel. The trial court explained that in deciding not to relieve Hollingsworth as counsel, it had relied on the fact that criminal defendants are entitled to retain the private attorney of their choice under People v. Ramirez (2006) 39 Cal.4th 398. It also recognized that “in California we’ve had a history of very colorful lawyers” and that it would be “a very dull, dull world if we had to corral all of those people down into the gray flannel suit and solid-colored tie and wing-tipped shoes that some folks feel lawyers should wear.”
The trial court noted that Hollingsworth’s State Bar license was valid throughout the trial and his criminal matter did not occur until after trial. It further stated that Hollingsworth had demonstrated he had a definite theory of the case, thoroughly cross-examined the complaining witnesses, and delivered an effective closing argument. Based on the trial court’s observations and recollections of the trial, it found that counsel’s performance was not deficient: “Taking everything that I’ve gone through here into account, some of this appeared to be trial tactics to throw Mr. Mrakich [the prosecutor] off his game. Some of it may have been disorganized thought. Certainly mere disorganization by itself is not an indication of incompetent counsel. The theme presented through the case by Mr. Hollingsworth was very clear, everything one way or another in the trial related either to confusing the witness and hoping for a better answer, or confusing... Mr. Mrakich and trying to throw him off his game, or it was directly related to a major issue in the case. Based on everything I heard and everything I saw, it [was colorful], it was unusual, but I can’t find that it was incompetent. Motion for new trial on those grounds will be denied.”
The trial court stated: “Now, I will be the first to admit that the voir dire process by Mr. Hollingsworth was a little unusual and certainly was colorful. But getting to the trial, I would agree with Mr. Mrakich [the prosecutor] that the cross-examination reflected a definite theory of the case. Mr. Hollingsworth would wander around out in the boonies with a line of questioning that seemed to be totally irrelevant, unrelated to our case, and out of nowhere a zinger would come right across the center of home plate. And it was directed — it obviously evinced a very clear theory of the case, the place he wanted to go. And it was obvious he had a theme. And during the cross-examination, which was lengthy on both of the two main complaining witnesses, Mr. Hollingsworth hammered and hammered and hammered those witnesses hard, to the point where one of the witnesses looked around and said something to the effect that there’s got to be a camera here, I got to be on television, I can’t believe this is happening. Mr. Hollingsworth extracted virtually every prior inconsistent statement possible made by the witnesses, either to the policeman or... during the preliminary hearing process. I will have to admit I was somewhat surprised by the closing arguments Mr. Hollingsworth delivered. Were they colorful? Yes, they were. Did they have all kinds of references to religious themes and to other themes? Yes, they did. Colorful. But the thrust and the legal thrust was very cohesive. I was shocked. The theme was clear. He hit every single weak point with the witnesses, the felonies, the inherent unbelievable nature that they could not believe these two people just because of their backgrounds, the inherent unbelievability of their testimony in general.”
The trial court then imposed sentence. On count 1, second degree robbery, the court imposed a third strike sentence of 25 years to life (§§ 211, 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), plus two consecutive 5-year enhancements (§ 667, subd. (a)), for a total of 35 years to life. On count 2, attempted second degree robbery, the court imposed a sentence of 25 years to life that was stayed under section 654.
Because the present offenses were committed while defendant was on probation for the two prior first degree burglary convictions, he also received two consecutive 16-month terms, for a total of two years and eight months.
Defendant filed a timely appeal from the judgment and a petition for a writ of habeas corpus, which we have consolidated.
THE APPEAL
Defendant contends on appeal that Hollingsworth’s apparent mental illness and bizarre behavior resulted in the constructive denial of the assistance of counsel, which rendered the trial so presumptively unreliable that no specific showing of prejudice is required under United States v. Cronic (1984) 466 U.S. 648, 653 (Cronic). Defendant contends that under Cronic, regardless of the exact nature of Hollingsworth’s difficulties, his conduct “was so divorced from reality and from his role as an advocate... that the magnitude of the problem warrants a presumption of prejudice.”
Among other things, he points out that Hollingsworth cried when a prospective juror stated that he had tested rockets for 30 years, cried while discussing (outside the jury’s presence) his purported visual disability, referred to the witnesses by the wrong names, made racial references, uttered meaningless repetitive phrases such as “clickety clack,” practiced karate during breaks in the trial, accused the prosecutor of “spinning around like Mickey,” and arrived late to court wearing a suit jacket, t-shirt, and sweatpants (before changing into other pants).
In a footnote, defendant further states: “After trial, but before [defendant’s] sentencing, counsel, who had been participating in the attorney diversion program for mental health and substance abuse issues, was ordered inactive and became ineligible to practice law. (See CT 168-171 [Order Enrolling Respondent Inactive Pursuant to Business and Professions Code Section 6233]; 5RT 1801-1802; see also Bus. & Prof. Code §§ 6230-6233 [statutes relating to Attorney Diversion and Assistance Program for attorneys with alcohol or substance abuse problems or mental illness].) Also after trial, but before sentencing, counsel was arrested for a crime of domestic violence against Jannette Barajas (‘Fluffy’), counsel’s former client and legal secretary. (5RT 1802, 2137-2138; see CT 176-183.)”
Alternatively, defendant contends that the record supports a finding of prejudice under Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland), because it is reasonably probable that the jury would have reached a different result in the absence of Hollingsworth’s ineffectiveness. In a related argument, defendant contends that the judgment must be reversed because his constitutional right to a fair trial conducted in accordance with due process of law was violated by Hollingsworth’s “bizarre and unprofessional behavior.”
I. The General Rule Under Strickland
In Strickland, supra, 466 U.S. 668, the Supreme Court established that “[t]he claim of ineffective assistance of counsel involves two components, a showing the counsel’s performance was deficient and proof of actual prejudice. (Strickland v. Washington[, supra,] 466 U.S. 668; People v. Ledesma (1987) 43 Cal.3d 171.)” (People v. Garrison (1989)47 Cal.3d 746, 786.)
In general, “[a]ppellate courts reverse convictions on the ground of inadequate assistance of counsel only when the record affirmatively reveals that counsel had no rational tactical purpose for an allegedly incompetent act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) A reviewing court will not second-guess trial counsel’s reasonable tactical decisions. (People v. Pope (1979) 23 Cal.3d 412, 424.)” (People v. Garrison, supra, 47 Cal.3d at pp. 783-784.)
II. The Narrow Exception Recognized in Cronic
Defendant contends that this case falls under the narrow exception to the general rule requiring a showing of counsel’s deficient performance and prejudice under Strickland. In Cronic, supra, 466 U.S. 648, the United States Supreme Court reversed an appellate ruling that had presumed the existence of prejudice arising from the inadequate performance of an inexperienced, underprepared attorney in a complex mail fraud trial. (Id. at pp. 662, 666.) Notwithstanding its holding, Cronic recognized that a presumption of a prejudicially deficient performance could arise in three situations, which were later summarized in Bell v. Cone (2002) 535 U.S. 685 as follows: “First and ‘most obvious’ was the ‘complete denial of counsel.’ [Cronic, supra, 466 U.S.] at 659. A trial would be presumptively unfair, we said, where the accused is denied the presence of counsel at ‘a critical stage,’ Id., at 659, 662, a phrase we used in Hamilton v. Alabama, 368 U.S. 52, 54, 7 L.Ed.2d 114, 82 S.Ct. 157 (1961), and White v. Maryland, 373 U.S. 59, 60, 10 L.Ed.2d 193, 83 S.Ct. 1050 (1963) (per curiam), to denote a step of a criminal proceeding, such as arraignment, that held significant consequences for the accused. [Fn. omitted.] Second, we posited that a similar presumption was warranted if ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ Cronic, supra, at 659. Finally, we said that in cases like Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55 (1932), where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected. Cronic, supra, at 659-662.” (Bell v. Cone, supra, 535 U.S. at pp. 695-696.)
The Supreme Court stated in Cronic: “This case is not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel. The criteria used by the Court of Appeals do not demonstrate that counsel failed to function in any meaningful sense as the Government’s adversary. Respondent can therefore make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel. [Fn. omitted.]” (466 U.S. at p. 666.)
In Bell v. Cone, the Supreme Court concluded that the defendant’s allegations of specific attorney errors were subject to the general rule requiring a showing of a prejudicially deficient performance under Strickland. It stated: “Here, respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind. [Fn. omitted.] [¶] The aspects of counsel’s performance challenged by respondent—the failure to adduce mitigating evidence and the waiver of closing argument—are plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components. In Darden v. Wainwright, 477 U.S. 168, 184, 91 L.Ed.2d 144, 106 S.Ct. 2464 (1986), for example, we evaluated under Strickland a claim that counsel was ineffective for failing to put on any mitigating evidence at a capital sentencing hearing. In Burger v. Kemp, 483 U.S. 776, 788, 97 L.Ed.2d 638, 107 S.Ct. 3114 (1987), we did the same when presented with a challenge to counsel’s decision at a capital sentencing hearing not to offer any mitigating evidence at all. [¶] We hold, therefore, that the state court correctly identified the principles announced in Strickland as those governing the analysis of respondent’s claim.” (Bell v. Cone, supra, 535 U.S. at pp. 697-698.)
In Florida v. Nixon (2004) 543 U.S. 175, the Supreme Court reiterated that the exception to the general rule requiring a showing of a prejudicially deficient performance under Strickland is extremely narrow. It stated: “We illustrated just how infrequently the ‘surrounding circumstances [will] justify a presumption of ineffectiveness’ in Cronic itself. In that case, we reversed a Court of Appeals ruling that ranked as prejudicially inadequate the performance of an inexperienced, underprepared attorney in a complex mail fraud trial. 466 U.S., at 662, 666, 80 L.Ed.2d 657, 104 S.Ct. 2039.” (Florida v. Nixon, supra,543 U.S. at p. 190.)
III. Post-Cronic Decisions
The situations in which courts have applied the narrow exception recognized in Cronic include those in which the attorney: (1) fell asleep during trial (Javor v. United States (9th Cir. 1984) 724 F.2d 831, 833); (2) failed to appear for cross-examination of a key witness (Green v. Arn (6th Cir. 1987) 809 F.2d 1257, 1263, vacated on other grounds, 484 U.S. 806); (3) urged the jury to find his client guilty (United States v. Swanson (9th Cir. 1991) 943 F.2d 1070, 1073); and (4) failed to object when the court erroneously directed a verdict against his client (Harding v. Davis (11th Cir. 1989) 878 F.2d 1341, 1345).
The United States Supreme Court has not considered whether the exception recognized in Cronic applies to claims of ineffective assistance of counsel based on attorney mental illness, which is one of the allegations in this case. However, the issue of attorney mental illness was addressed by the Ninth Circuit in Smith v. Ylst (9th Cir. 1987) 826 F.2d 872 (Smith). Smith held that the general rule requiring a showing of a prejudicially deficient performance under Strickland applied to the defendant’s claim of ineffective assistance of counsel based on mental illness. Smith concluded that the narrow exception recognized in Cronic did not apply, stating that “[a]lthough there is merit to the argument that a mentally unstable attorney may make errors of judgment that are essentially unidentifiable by a reviewing court, it is reasonable to treat such cases under the general rule requiring a showing of prejudice. Rather than attempt to identify mental illnesses that would presumptively disable an attorney from conducting a criminal defense we believe it is more prudent to evaluate the attorney’s actual conduct of a trial in light of allegations of mental incompetence.” (Id. at p. 876; see also Dows v. Wood (9th Cir. 2000) 211 F.3d 480, 485-486 [counsel’s Alzheimer’s disease does not warrant a per se finding of ineffective assistance].)
In People v. Garrison, supra, 47 Cal.3d 476, the California Supreme Court considered whether to apply the narrow exception recognized in Cronic to a claim of ineffective assistance of counsel based on attorney intoxication. It concluded that the exception did not apply, stating that “[a]lthough it is uncontested that [Attorney] Beardsley was an alcoholic at the time of trial and that he has since died of the disease, defendant has failed to prove that Beardsley’s performance was deficient. His reliance on a per se rule of deficiency for alcoholic attorneys is contrary to settled law. We hereafter conclude, therefore, that defendant was not denied his right to effective assistance of counsel. [¶]... [¶] The trial judge was in the best position to evaluate Beardsley’s condition and performance. The judge was put on notice of Beardsley’s alcohol problem when, on the second day of jury selection, Beardsley was arrested for driving to the courthouse with a.27 percent blood-alcohol content. On the following day, the judge made a detailed inquiry of the matter and repeatedly asked defendant if he wanted the court to appoint new counsel. Defendant insisted that he wished to continue with Beardsley. The judge stated that Beardsley’s courtroom behavior had not given him any reason to believe that Beardsley should not continue and told defendant, ‘I personally can assure you that you probably have one of the finest defense counsel in this county.’ [¶] The judge was apparently satisfied with Beardsley’s competence and allowed him to continue. In fact, at the conclusion of the penalty phase the judge praised Beardsley for his effort, stating to defendant: ‘Let me tell you this. I’m not going to try to convince you that the representation that you had in this case was carried on with as much vigor and dedication as any trial I have witnessed because being in your position at this point you certainly are not ready to accept that, and I’m not going to spend a lot of time telling you that. [¶] Mr. Beardsley, as I expressed to you earlier in these proceedings, has been one of the better defense attorneys in this county and certainly the amount of effort that he expended in your case is commendable, although the results in your position are not.’” (People v. Garrison, supra, 47 Cal.3d at pp. 786-787.)
In both Smith and Garrison, no showing was made that counsel had so completely failed to challenge the prosecution’s case as to bring the case within the narrow exception recognized in Cronic. As the Supreme Court explained in Bell v. Cone, supra, 535 U.S. 685,in order for the second category of the exception to apply, “the attorney’s failure must be complete. We said ‘if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ Cronic, supra, at 659 (emphasis added).” (Bell v. Cone, supra, at p. 697.)
IV. This Case Does Not Fall Within the Narrow Exception Recognized in Cronic
Defendant contends that Hollingsworth’s prejudicially deficient performance may be presumed under the narrow exception recognized in Cronic. He states that Hollingsworth’s “‘moments of clarity’... were no more evidence of effective representation than a sleeping attorney’s ‘moments of wakefulness’ would be.” He claims that “significant portions of the record show that counsel was not exercising judgment at all, but was rather off on flights of fancy unrelated to the case, and was clearly not acting on behalf of his client in any respect.” He argues that there was such a complete breakdown of the adversary process that he was denied a fair trial.
The Attorney General, on the other hand, disagrees that counsel’s performance was deficient and argues that Hollingsworth was effective when cross-examining Babb and Howell, and when summarizing the discrepancies in their testimony during closing argument. The Attorney General contends that because defendant is alleging specific instances of attorney error, this case is governed by the general rule requiring a showing of prejudice under Strickland. We agree. According to the reply brief, defendant “does not contend that counsel was ineffective merely because he suffered from either mental illness or a substance abuse problem,” but because he failed to exercise “reasoned, informed strategic judgment” on his behalf.
Although defendant believes that counsel was ineffective when cross-examining Babb and Howell, the prosecutor evidently believed otherwise. As a result of the cross-examination, the prosecutor conducted a further investigation in order to locate the insurance office employee who could corroborate their testimony. Accordingly, it cannot be said that counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing. (Cronic, supra, 466 U.S. at p. 659.)
Moreover, defendant does not purport to rely on a per se rule of attorney incompetence based solely on mental illness. (See Smith, supra, 826 F.2d at p. 875 [claims of attorney incompetence based on mental illness should be evaluated under Strickland in light of the attorney’s actual conduct of the trial].) Defendant criticizes many aspects of counsel’s performance—failing to question prospective jurors, failing to remove prospective jurors, failing to keep a promise made in the opening statement to produce exculpatory evidence, failing to cross-examine witnesses—that “are plainly of the same ilk as other specific attorney errors [that have been] held subject to Strickland’s performance and prejudice components.” (Bell v. Cone, supra, 535 U.S. at pp. 697-698.)
V. There Is No Showing of Prejudicial Ineffectiveness Under Strickland
Under Strickland, supra, 466 U.S. 668, the claim of ineffective assistance of counsel requires a showing that counsel’s performance was deficient and proof of actual prejudice. We conclude that defendant has failed to provide evidence of either requirement.
During voir dire, the trial court conducted a closed hearing after Hollingsworth had cried upon hearing that a prospective juror had tested rockets for 30 years. The court received defendant’s assurance that he wished to continue with Hollingsworth as his privately-retained counsel. When defendant later moved for a new trial based on the trial court’s failure to declare a mistrial on the court’s own motion for ineffective assistance of counsel due to apparent mental illness, the trial court explained that in deciding not to relieve Hollingsworth as counsel, it had relied on the fact that criminal defendants are entitled to retain the private attorney of their choice under People v. Ramirez, supra, 39 Cal.4th 398.
In denying the new trial motion, the trial court concluded that counsel was not ineffective. It made factual findings, based on its observations of counsel’s performance, that some of counsel’s behavior “appeared to be trial tactics to throw Mr. Mrakich [the prosecutor] off his game,” “[s]ome of it may have been disorganized thought,” and “everything [was] related either to confusing the witness and hoping for a better answer, or confusing... Mr. Mrakich and trying to throw him off his game, or... was directly related to a major issue in the case.” The issue we face is the degree of deference that should be accorded to these factual findings.
In Dows v. Wood, supra, 211 F.3d at page 487, the Ninth Circuit gave “substantial weight” to the trial court’s findings with regard to counsel’s performance. It reasoned that the trial court’s findings were entitled to “substantial weight” because the “motion for a new trial based on ineffective assistance of counsel was decided by... the same judge who presided at [the defendant’s] original trial” and the judge “was in an unusually good position to evaluate [counsel’s] actual performance.”
In this case, defendant urges us to apply a standard of independent review. Defendant cites In re Resendiz (2001) 25 Cal.4th 230 (Resendiz), which stated that when an appellate court hears a second petition for habeas corpus based upon a transcript of the evidentiary proceedings conducted on the first petition for habeas corpus in the superior court, the appellate court is not bound by the factual determinations made below but, rather, independently evaluates the evidence and makes its own factual determinations. (Id. at p. 249.)
However, Resendiz permits the appellate court to give substantial weight to trial court findings on matters that were heard and observed by the trial court. According to Resendiz, “While our review of the record is independent and ‘we may reach a different conclusion on an independent examination of the evidence... even where the evidence is conflicting’ (In re Hitchings (1993) 6 Cal.4th 97, 109), any factual determinations made below ‘are entitled to great weight... when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.’ (In re Wright [(1978)] 78 Cal.App.3d [788,] 801; see also People v. Ledesma [(1987)] 43 Cal.3d [171,] 219.) On the other hand, if ‘our difference of opinion with the lower court... is not based on the credibility of live testimony, such deference is inappropriate.’ (In re Arias (1986) 42 Cal.3d 667, 695; see also In re Hitchings, at p. 109.)” (Resendiz, supra, 25 Cal.4th at p. 249.)
Accordingly, we give great weight to the trial court’s factual findings, based on its observations of counsel’s performance, that “everything [was] related either to confusing the witness and hoping for a better answer, or confusing... Mr. Mrakich and trying to throw him off his game, or... was directly related to a major issue in the case.” In light of the trial court’s findings, we conclude that counsel’s performance was not deficient.
In any event, we further conclude that the record fails to show that counsel’s performance was prejudicially inadequate. Given the overwhelming evidence of defendant’s guilt, it is unclear what, if anything, counsel could have done (or not done) to change the outcome of the trial.
Counsel’s decisions regarding the selection of jurors and his failure to exhaust the available peremptory challenges were obviously tactical decisions. (See People v. Bolin (1998) 18 Cal.4th 297, 316.) Defendant does not claim that the jury was comprised of individuals who could not be fair or could not obey the trial court’s instructions, including the instruction that “[s]tatements made by the attorneys during the trial are not evidence.”
Two of the voir dire examples cited in the opening brief involved prospective jurors who ultimately did not hear the case. Accordingly, any conceivable error on counsel’s part with regard to those two prospective jurors could not have been prejudicial.
Although defendant contends that he was prejudiced by counsel’s promise in the opening statement to provide evidence (that Babb and Howell were gang members who owed defendant money for some televisions) that ultimately was not produced at trial, the decision to provide an opening statement was clearly a tactical decision. There is nothing in the record to show that the failure to present the promised evidence was counsel’s fault.
Even assuming that counsel’s speech, manner, or behavior at trial were distracting, annoying, comical, or frustrating to jurors, the jury is presumed to follow the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The record is devoid of any evidence to suggest that the jury disregarded the instruction not to consider the attorneys’ statements as evidence. Accordingly, we must presume that the jury decided the case based on the evidence before it as opposed to the statements or behavior of counsel.
The prosecution’s evidence provided a virtually seamless eyewitness narrative of defendant’s movements, beginning with his commission of the robbery and ending with his dramatic flight, capture, arrest, identification, and possession of incriminating items (the replica gun, the victim’s wallet and identification, and cash in the amount taken from the victim). On this record, we are compelled to conclude that the evidence of defendant’s guilt was so overwhelming that it is not reasonably probable that the jury would have reached a different result in the absence of the purported errors and unusual behavior of counsel. Accordingly, we conclude that the record fails to support a claim of ineffective assistance under Strickland.
VI. Defendant Has Failed to Establish a Denial of Due Process
Defendant contends that Hollingsworth’s bizarre and unprofessional behavior resulted in the denial of due process and a fair trial. In support of this contention, he cites Estes v. Texas (1965) 381 U.S. 532, which held that the televising of a criminal trial was an inherent violation of the defendant’s right to due process of law.
We reject this contention for all of the reasons stated above. In addition, given that this case did not involve the televising of a criminal trial, Estes is clearly distinguishable. Estes involved state action in that the trial was televised according to procedures “employed by the State,” which involved “such a probability” of prejudice that the trial was “deemed inherently lacking in due process” even without a showing of “isolatable prejudice.” (Id. at pp. 542-543.) In this case, however, Hollingsworth was privately retained and there is no assertion that his performance involved state action. We are not persuaded that in the absence of state action, Estes would support a finding in this case that the trial was inherently lacking in due process. We therefore conclude that defendant’s reliance on Estes is misplaced.
THE PETITION FOR HABEAS CORPUS
While this appeal was pending, defendant filed a petition for a writ of habeas corpus. The declarations in support of the petition provide anecdotal evidence regarding Hollingsworth’s conduct during trial. None provide cause for relief. However, in a supplemental declaration, defendant’s appellate counsel stated that she had contact with Hollingsworth and had an opportunity to discuss his performance. Hollingsworth made statements that warrant further inquiry, but counsel has been unable to obtain a declaration from him. Assuming counsel is able to obtain admissible evidence from Hollingsworth, the matter is best addressed in the superior court, where an evidentiary hearing may be necessary. Thus, we will deny the petition without prejudice.
DISPOSITION
The judgment is affirmed on appeal. The petition for writ of habeas corpus is denied without prejudice.
We concur: WILLHITE, Acting P.J., MANELLA, J.
Defendant contends that Hollingsworth’s apparent mental lapses rendered him ineffective throughout the trial, including when he failed to question prospective jurors, failed to exercise peremptory challenges, failed to prepare for trial, espoused a theory in the opening statement (that Babb and Howell were gang members and were lying about the robbery because Babb owed defendant money for some televisions) that was soundly refuted by the prosecution’s evidence and was not supported by any defense evidence, failed to cross-examine prosecution witnesses in a professional, logical, and reasonable manner, and revealed confidential information to the trial court and prosecutor regarding the decision not to call certain defense witnesses. Defendant states that Hollingsworth asked questions on cross-examination that “were illogical or were nonsense” and often “evinced an inability to reason logically or even coherently.”