Opinion
Received for posting 1/21/10
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR 914507
McGuiness, P.J.
After a jury trial, defendant John Alan Gillies was convicted of kidnapping during the commission of a carjacking (Pen. Code, § 209.5, subd. (a)), and robbery in the second degree (§ 211). The jury also found defendant had personally used a firearm during the commission of the offenses (§§ 12022.5, subd. (a), 12022.53, subd. (b)). The court sentenced defendant to an aggregate term of 23 years to life in state prison, with parole eligibility after 30 years.
All further unspecified statutory references are to the Penal Code.
The jury also found defendant guilty of carjacking (§ 215, subd. (a)), but before sentencing the court dismissed that count as it is a necessarily lesser included offense of kidnapping in the commission of a carjacking. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.)
On his direct appeal, defendant contends he was deprived of a fair trial because a juror may have been biased against him. In his petition for writ of habeas corpus, defendant raises a claim of ineffective assistance of trial counsel. We affirm the judgment and summarily deny the petition for writ of habeas corpus.
In his petition, defendant requests we take judicial notice of all records filed on his direct appeal. In the absence of opposition, we grant the request for judicial notice.
FACTUAL AND PROCEDURAL BACKGROUND
The charges of which defendant was convicted arose from two incidents that took place during the early morning hours of Monday, November 6, 2006. First, a masked gunman carjacked and kidnapped Patrick Brown, and then shortly thereafter, the masked gunman robbed the Twin Pine Casino.
A. Prosecution’s Case
In the early morning hours of November 6, 2006, Patrick Brown drove a company truck and stopped at a car wash before going to work at a construction site. While washing the truck, Brown was approached by a man, about 6 feet tall and dressed in a cape with a hood on it, and a black face mask that looked like a fencing mask. Brown could not tell the man’s race or hair color. The man pulled out a gun and told Brown to get into the truck. Brown initially said, no, but when the man again told Brown to get into the truck he complied. Pointing the gun at Brown, the man told Brown to drive in the direction of Dry Creek.
When Brown reached the Dry Creek cutoff, the man insisted that Brown drive down a dirt road toward a wooded area. Brown refused to drive any further, and told the man to take the truck and let him out. Brown got out of the truck and the man eventually drove away.
Brown ran along the road until he was able to flag down a Jeep. Todd Braget and his girlfriend were in the Jeep. Brown explained that a man wearing a mask and carrying a gun had stolen his truck. Braget told Brown to get into the Jeep, and suggested they go to the casino where they would look for the truck. As the Jeep neared the Twin Pine Casino, Brown saw his truck stopped outside the casino.
As they entered the casino parking lot, Braget and Brown saw people running out of the casino, saying the casino was being robbed. The Jeep stopped in the parking stall next to Brown’s truck, and Braget got out and went towards Brown’s truck. Braget saw a man, whom he later identified as defendant, dressed in a mask, carrying a gun and something else under his arm, running towards Brown’s truck. Braget also saw that the man had what appeared to be “a hood or something with a pink or purple strip of cloth around the front of the face of it.” Just before he jumped into the truck and within a second, defendant was able to pull his hood down and pull off the mask and discard it on the ground. Defendant removed the mask with his left hand; keeping the gun in his right hand; and the other items under one of his arms. The mask that Braget saw fall to the ground was all black and did not have any purple or pink border on it. As defendant drove off, Braget ran alongside the truck and hit the driver’s side windshield with his hand. There was a loud smash that caused defendant to move to the passenger side, and when he realized the window was still intact, defendant, who looked scared, moved back into the driver’s seat and drove away. The parking lot was well lit, and Braget was able to get a good look at defendant’s face inside the cab of the truck.
Two videos were created using tapes from several casino surveillance cameras. Braget testified that the portion of the video where defendant pulled the mask off, right before he opened the truck door, took “about a second,” and “was pretty fast.”
When the truck drove off, Braget ran back to his Jeep and pursued defendant. After traveling for awhile, Braget realized he had lost sight of Brown’s truck and he drove back to the casino. Later that day, the police found Brown’s truck parked behind a store opposite the car wash where the carjacking began.
About three months before the May 2008 trial, California Department of Justice Special Agent Clyde Raborn showed Braget a six-man photographic array. Even though Braget was told the suspect might not be in the lineup, as soon as Braget looked at the array, he pointed right to the person in position three (defendant) and said, “[T]hat’s the guy.” The officer who showed Braget the photographic array did not promise him any reward or benefit for identifying any particular individual, nor was Braget threatened in any way to get him to identify anyone. Braget also identified defendant in court.
Several casino employees testified concerning the casino robbery, including cash cage supervisor Dorothy Davis, security guards Alvin Carlisle, Jr., Tarvis Parker, John Thompson, and graveyard security supervisor Roland Young. In the early morning hours of November 6, 2006, a man dressed in a cape and face mask entered the Twin Pine Casino. He ran through the front door, and when he reached the cash cage, he said, “Give me all your money.” Supervisor Davis, who was working inside the cash cage, thought the man was joking and said, “No.” The man pulled out a gun, pointed it at Davis, and said, “Hurry up, come on, bitch, hurry up.” Davis gave the man a cash drawer containing $23,504. The money was never recovered or traced to defendant. As the robber fled, he dropped “a lot of cash,” and the security guards picked up the cash as they followed him to prevent the customers from taking it. By the time the security guards got outside, Brown’s truck was leaving the parking lot.
Within five minutes of the robbery and while he was in the parking lot, security guard Carlisle found a black cloth attached to a black mesh face mask (People’s Exhibit 3) lying on the ground near where Brown’s truck had been parked. Security guard Thompson put on latex gloves before he picked up People’s Exhibit 3, and then placed it inside a bag and sealed it. Deputy Sheriff Eric Keener received People’s Exhibit 3 and sent it to the Department of Justice Crime Lab for DNA testing. Department of Justice Senior Criminalist Shawn Kacer, a DNA expert, took two swabs of the interior of the mesh face portion of People’s Exhibit 3. The DNA in the epithelial skin cells found on the interior face portion of the mask matched the major DNA profile of defendant’s known sample taken by Special Agent Raborn. Two human hairs that were also found on People’s Exhibit 3 did not match defendant.
The prosecutor presented evidence the parking lot had been last cleaned the day before the robbery and there was no type of party at the casino on the night before the robbery. The defense brought out that there had been a Halloween party a week before the robbery during which costumed people were allowed in the casino and around the parking lot. However, since Halloween, the parking lot had been swept more than once every day.
The prosecutor also showed the jury the two videos created from casino surveillance camera footage. The videos captured the robbery and portions of the retrieval of the mask in the parking lot. The videos were first shown in their entirety, and then the jury was shown segments of the videos as certain witnesses were on the stand. The prosecutor paused the videos at certain intervals and asked the witnesses to describe what was happening in the video images. In the first video, the jury saw Brown’s truck pulling into the casino parking lot just before the robbery; a shadow image of the robber getting out of the truck and running into the casino; Braget’s Jeep pulling into the casino parking lot; the robber at the cash cage with a handgun demanding money; the robber running towards the front door of the casino; the robber dropping cash and the security officers picking it up as they followed the robber; the robber getting into Brown’s truck after the robbery, and Braget at the window of the driver’s side of Brown’s truck then running beside the truck as it left the parking lot. In a second video, the jury saw images from the videotapes in four casino surveillance cameras that focused on the retrieval of the mask admitted as People’s Exhibit 3. The jury saw security guard Thompson putting on a pair of latex gloves and then walking into the parking lot, his return to the casino holding a mask, his putting the mask in a plastic bag, sealing the bag, and giving the bag to Deputy Keener. The video does not show the security guard’s actual retrieval of the mask from the casino parking lot.
B. Defendant’s Case
Defendant did not testify in his own behalf. He called defense witnesses and cross-examined the prosecution’s witnesses to establish he was not the carjacker or robber.
Alibi witnesses testified defendant was at a friend’s home at the time of the commission of the carjacking, kidnapping, and robbery. The prosecutor countered by presenting evidence indicating the witnesses may not have known where defendant was at the actual time of the carjacking, kidnapping, and robbery. Also, the prosecutor brought out inconsistencies between defense witnesses’ trial testimony and statements they gave to Department of Justice officers who were investigating the casino robbery.
Defendant also sought to discredit the eyewitness testimony of Todd Braget. At the time of the trial Braget was almost 43 years old. During his twenties, he was convicted of a misdemeanor offense concerning a bad check, assault with a firearm, two counts of receiving stolen property, auto theft (twice), and escape from jail. Since his last conviction for escaping from jail in 1999, he had one drug conviction for which he participated in a program, and he had been sober for nine months at the time of trial. Also, a few years before the trial, Braget asked a woman to sign over her car to him to pay for drugs Braget had acquired for her. Braget threatened to choke the woman’s cat if she did not sign over the car. The woman signed over the car, valued at about $2,500. Defense counsel also brought out the following evidence: Braget’s perceptions at the time of the robbery were affected by his use of methamphetamine and marijuana earlier that evening. Braget admitted the casino surveillance video did not show defendant taking off the mask admitted as People’s Exhibit’s 3. Braget had previously testified he only viewed defendant’s face for “a second or two” after he tried to smash the truck’s window, and at trial, Braget did not know exactly at what point he had seen defendant’s face and exactly what made him remember it. Braget knew defendant’s photograph was on the Sheriff Department’s internet website before he identified defendant in the photographic array.
Braget testified that before he identified defendant’s photograph in the array he had never seen a photograph of the defendant, and although he knew before the identification that defendant’s photograph was on the Sheriff Department’s internet website, he never looked at the website photograph before he identified defendant’s photograph in the array.
Finally, defendant sought to establish that People’s Exhibit 3, the mask found in the casino parking lot, was not the mask worn by the robber as depicted in the casino surveillance video and a still photograph of the robber at the casino cash cage (Defendant’s Exhibit E). People’s Exhibit 3 was a black mesh face mask attached to black material that was shroud-like with pie-cut fringes. The surveillance video showed the robber’s face covered only with a black mesh face mask, and his face is surrounded by purple material with pie cut fringe, and the purple material is covered in part by a black hood. The People’s witnesses confirmed the black mesh face mask portion of People’s Exhibit 3, was, or was consistent with, the face mask worn by the robber. Defense counsel questioned some of the witnesses concerning the purple material surrounding the robber’s face that was depicted in the surveillance video and still photograph. The witnesses readily admitted the surveillance video and still photograph showed the robber’s face surrounded by purple material with pie cut fringes, which one witness described as looking “pretty close” to the “design and layout of... the outer part” of People’s Exhibit 3. Braget testified the purple material was part of the hood, separate from the mask. The other witnesses did not know or could not definitely tell whether the purple material was a separate piece of material (a separate hood or sweatshirt), or attached to the black mesh face mask or the black hood covering the purple material.
Defendant also presented evidence the mask admitted as People’s Exhibit 3, was available in both an all black version (People’s Exhibit 3), and in a two tone version (Defendant’s Exhibit K), and that both masks had been available for sale at a nearby Walmart during the Halloween season immediately before the robbery.
DISCUSSION
I. Juror Bias
A. Relevant Facts
In its opening instructions, the court admonished the jurors they were not to “listen to anyone who tries to talk to you about the case or about any of the people or subjects involved in it. Sometimes during a break, you might be out in the hall and someone will come up and maybe start discussing the case in your presence. Just leave it or tell them to cut it off or steer clear of them the best you can, and let me know if anyone is persistent so I can deal with it. [¶] Again, if someone asks you about the case, tell him or her you cannot discuss it. If that person keeps talking about the case, please end the conversation. It does happen, and it’s led to mistrials, and we need to go over and do this all again. I don’t want to do that.” The court also admonished the jurors, “If you receive any information about this case from any source outside the trial, even unintentionally, someone blurts out something in your presence or the like, do not share that information with any other juror. If you do receive such information or anyone tries to influence you or any juror, you must immediately tell the bailiff.”
Following opening statements and the testimony of two prosecution witnesses, the court recessed for lunch. After the recess, the court convened in chambers with both counsel but outside the presence of defendant and the jurors. The court bailiff reported he had been approached by juror number 10 who had heard someone say, “he’s innocent.” The bailiff advised the juror not to go into the jury room or mention the matter to the other jurors because it was possible the court would inquire about the matter after the trial resumed. The court told counsel it would talk to the juror and then assess if the remaining jurors should be questioned in case they had been similarly approached or things were yelled out in their presence.
In chambers, juror number 10 was questioned by the court, the prosecutor, and defense counsel. The court asked the juror to explain what had happened during the lunch recess. The juror stated that right after the court recessed for lunch and as she was walking to lunch, she saw two women whom she recognized as spectators in the courtroom that morning. As soon as the two women passed the juror, “one of them said, ‘he’s innocent,’ like it was obvious.” The juror was maybe five to ten feet away from the woman when the comment was made. The juror was not absolutely sure the comment was directed at her but she was “pretty sure” it was intended she hear it. The juror first thought the woman was just stating an opinion to her friend, but then it seemed like it was loud enough so the juror would obviously hear the comment.
The court also questioned three other jurors regarding unrelated incidents that occurred outside the courtroom during the same lunch recess. One juror was approached at lunch by someone who said, “Be nice to my friend,” and two jurors heard courtroom spectators yelling “He’s innocent,” and were followed to the parking lot and watched by the spectators as they got into their cars. Because defendant does not challenge the retention of these three jurors, their in chambers interviews are not recounted or otherwise addressed in this opinion.
The prosecutor asked the juror if there was anything intimidating about the incident. The juror replied, “Yeah, I was kind of upset that they were trying to intimidate me.” When the court asked, “Is that to the point that you feel uncomfortable sitting as a juror in this case,” the juror replied, “ No, I don’t think so. One thing I do feel a little uncomfortable about at least, the defendant was in the courtroom, and he knows where I live, where our business is....” In response to a series of questions by the court as to how defendant would know that information, the juror replied the court had earlier questioned her about the location of her business in defendant’s presence. After further questioning, the juror confirmed she had never seen defendant before, he had never been a customer of her business, and there were a lot of different resorts in the location of her business “[s]o it’s not something that really bothers me a lot.” “It was just something that went through my mind.”
When the prosecutor asked if the juror felt she needed to tell the court anything else before she resumed her jury duties, she replied, “No. And like I said, when I first heard it, I thought, oh, they’re just talking to themselves. And then when I thought about it for another few seconds, I thought they were probably intending it for me.” Defense counsel asked the juror if she could still be fair to defendant. The juror first stated, “I’m feeling like part of me thinks that if—I think I could.” When the court asked the juror to complete the first part of her statement, the juror replied: “Part of me is thinking that if this is the kind of family he comes from that’s trying to influence the jury, then I guess that makes it a little bit of an influence on me.” The court replied, “just for what it’s worth, none of those people are his family.” To which the juror responded, “Okay. Then that would not be as much—that wouldn’t be an influence then.” The court added, “And we will likely be having a chat with them.” In response to further questions by the court and prosecutor, the juror assured the court that if a similar event happened regarding anybody from either side, she would feel comfortable reporting the matter to the court. The court told the juror sometimes people on both sides of a case say stupid things, and then asked the juror if she could put that aside and look at the facts. The juror replied, “Yes.” The court responded, “I think you can too.” The court thanked the juror and told her not to discuss the matter with the other jurors.
After juror number 10 left the court’s chambers, the court commented it did not believe the juror feels “intimidated in that sense.” The court asked if counsel had anything to put on the record, and if not, the court asked defense counsel to talk with the courtroom spectators about their conduct and that if there was any further conduct, the court would recommend they be considered for prosecution for jury tampering. When the court indicated the trial would resume, the following colloquy took place. “[Defense Counsel]: I just want to make one comment. I did have a little bit of concern about juror 10. She seemed like she’s saying, you know, maybe she did feel a little intimidated and maybe she was starting to have bias towards the defendant, that’s all. [¶] [Prosecutor]: This is certainly nothing that the People had anything to do with in any way. [¶] [Defense Counsel]: That’s not what I’m saying. [¶] [Prosecutor]: And you’re allowing the defendant to kind of reshape the jury now. [¶] [Defense Counsel]: No, your Honor.... [T]he defendant is in custody. He had nothing to do with it. [¶] The Court: That’s an awkward position, because if I readily permit people to be intimidated and thereby opt them off the jury—not that you would have anything to do with that directly. I don’t think that for a minute, [defense counsel].... [¶]... [¶] But if... defendants feel they can get away with that, then they have the ability to shape the jury, and that’s not right either.” The discussion then turned to whether defendant could have been involved in any misconduct by the courtroom spectators, ending with the court asking both counsel to remain after the jury was dismissed that day to “try and reflect on it. We may have to attack it in the morning.” The record does not reflect the matter was ever raised by the court or counsel at any time thereafter.
B. Analysis
Defendant argues he is entitled to a new trial because juror number 10 may have been biased against him. We conclude the issue is not properly before us, and, in any event, lacks merit.
Defendant forfeited his claim of juror bias by failing to ask the trial court to take any action concerning the retention of juror number 10. After receiving the bailiff’s report that juror number 10 had heard someone say, “he’s innocent, ” the court investigated the facts in the presence of counsel to determine whether what the juror heard “ ‘was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial....’ ” (People v. Chatman (2006) 38 Cal.4th 344, 369, quoting Holbrook v. Flynn (1986) 475 U.S. 560, 572.) After questioning the juror, the court stated its position regarding the matter, and asked if counsel had anything to put on the record. After defense counsel stated his concerns about juror number 10, nothing prevented him from immediately asking the court to declare a mistrial or substitute an alternate juror for juror number 10. Had a request been made, there were alternate jurors available for substitution. Consequently, defendant may not now complain about the court’s decision to leave juror number ten on the jury. (People v. Panah (2005) 35 Cal.4th 395, 480 [claim of juror bias caused by conduct of defendant’s family members was forfeited by failure to request any action in trial court].)
Defendant’s argument that his trial counsel was ineffective for failing to challenge the trial court’s decision to retain juror number 10 is unavailing. “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, [reviewing courts] will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.) Contrary to defendant’s contention, this is the usual case. Defense counsel could reasonably have decided that a mistrial or removal of juror number 10 was not in his client’s interest, but a comment on what appeared to be equivocal responses by juror number 10 was appropriate in case any further attempt was made to interfere with the juror. On this record, we see no reason to “second-guess[] trial counsel’s tactical decision to leave [juror number 10] on the jury.” (People v. Majors (1998) 18 Cal.4th 385, 428.)
Even if the matter was properly before us, we are not persuaded by defendant’s argument that juror number 10 communicated, in different ways, she was actually biased against him. “What the record seems to indicate is [misconduct by a spectator]... who, intentionally or not, made [herself] conspicuous... in a manner that [juror number 10] interpreted as intimidating. The juror[’s] understandable concern does not amount to misconduct, and there is nothing on the record to support defendant’s claim that he was denied an impartial jury.” (People v. Panah, supra, 35 Cal.4th at p. 480; see People v. Navarette (2003) 30 Cal.4th 458, 499-500 [no error where trial court took appropriate and sufficient steps to address seated juror’s concerns “for property and family” as it related to defendant’s possible access to jurors’ questionnaires].) The trial court here found juror number 10 was not intimidated by the spectator’s comment, and that the juror would be able to put aside the spectator’s comment, and look at the facts of the case. To the extent defendant asks us to consider other statements made by the juror, “[w]e defer to the trial court’s determination of the state[] of mind of the[] juror[] in the face of conflicting or equivocal answers to questions concerning impartiality. [Citations.]” (People v. Morris (1991) 53 Cal.3d 152, 186 fn. 4, disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830 fn. 1.) An independent review of the record does not establish “a substantial likelihood the juror was biased or that [the spectator’s comment] impermissibly influenced her to the defendant’s detriment.” (In re Carpenter (1995) 9 Cal.4th 634, 656.)
II. Petition for Writ of Habeas Corpus
“A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]” (In re Visciotti (1996) 14 Cal.4th 325, 351.) If petitioner does not state a prima facie case for relief, the “court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue [an order to show cause].” (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) In our view, defendant’s allegations regarding his trial counsel’s conduct do not establish a prima facie case for relief.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof.” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) “ ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that 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.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
In his petition, defendant argues that pivotal to his conviction or acquittal was whether People’s Exhibit 3, on which defendant’s DNA was found, was the mask worn by the casino robber. Although his status as the masked robber was extensively litigated at trial, defendant contends his counsel’s effort to persuade the jury to acquit him “was not enough.” Defendant contends his counsel should have called as a witness a “forensic expert in image analysis and comparison,” who would have established the mask seen in the surveillance video was not the mask admitted as People’s Exhibit 3.
Attached to the petition is a declaration from Gregg Stutchman, the chief forensic analyst at Stutchman Forensic Laboratory. Stutchman reviewed the surveillance video and photographs of People’s Exhibit 3. He also “conducted forensic enhancement/clarification” of the surveillance video by “captur[ing] the video footage from the DVD and prepar[ing] still images from individual frames, and [using] imaging software to clarify” some of the still images. Copies of these still images are attached to the petition. Stutchman analyzed and compared a still image of the robber at the casino cash cage with photographs of People’s Exhibit 3. He concluded “[t]he mask worn by the suspect at the cash cage is of a lavender color as compared to the mask in evidence which is black. The suspect is wearing a dark or black hood over the mask which is not connected to or part of the mask.” If called as an expert witness in forensic image analysis, Stutchman would testify People’s Exhibit 3 could not be same mask worn by the robber in the surveillance video.
Also attached to the petition is a declaration from defendant’s trial counsel, who sets forth his reasons for not calling an expert witness. “Shortly before the trial,” defense counsel “became aware of, and considered using, a forensic video expert to conduct forensic image analysis and comparison of the surveillance video of the mask” worn by the robber and photos of People’s Exhibit 3. However, counsel chose not to retain this expert because, to his best recollection, defendant did not want to waive any further time for jury trial and counsel felt the evidence “spoke for itself when closely studied: that the evidence, when viewed closely, would show that the mask worn by the perpetrator of the robbery in this case, as seen in the surveillance video, is not the same mask containing [defendant’s] DNA.”
Contrary to defendant’s contention, his trial counsel reasonably concluded it was not necessary to introduce the expert testimony proposed in Stutchman’s declaration. “[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. ‘Where the jury is just as competent as the expert to consider and weigh the evidence and drew the necessary conclusions, then the need for expert testimony evaporates.’ [Citation.] ” (People v. Torres (1995) 33 Cal.App.4th 37, 47.) Stutchman was prepared to testify People’s Exhibit 3 was not the mask worn by the robber because the surveillance video showed only lavender material surrounding the robber’s face, and the lavender material was not attached to the black hood covering the lavender material. However, the jurors were just as competent as the expert to compare the surveillance video and People’s Exhibit 3 and drew the same self-evident conclusion. There was no question that the surveillance video only showed a lavender or purple material with pie cut fringes surrounding the robber’s face and the surveillance video and the still photograph of the robber did not depict the black shroud-like material with pie cut fringes portion of People’s Exhibit 3. Additionally, the expert’s proposed testimony would not have contradicted or otherwise challenged the prosecution’s position that the black shroud-like material with pie cut fringes portion of People’s Exhibit 3 was hidden underneath the lavender or purple material depicted in the surveillance video and still photograph. Thus, even if the jurors in this case had heard the expert’s proposed testimony, it is highly unlikely they would have reached a different outcome.
“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.” (Strickland v. Washington, supra, 466 U.S. at p. 689.) “ ‘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.’ ” (In re Visciotti, supra, 14 Cal.4th at p. 352, quoting Strickland v. Washington, supra, 466 U.S. at p. 686.) On this record, defendant has failed to set forth a prima facie showing the verdict was “rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance.” (Strickland v. Washington, supra, 466 U.S. at p. 700.) Accordingly, we summarily denied the petition for writ of habeas corpus.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is summarily denied.
We concur: Pollak, J. Siggins, J.