Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR49175
ORDER MODIFYING OPINION AND DENYING REHEARING;
DUARTE , J.
THE COURT:
It is ordered that the opinion filed in this case on June 27, 2011, be modified as follows:
On page 10, lines 2-11, eliminate the paragraph in its entirety, replacing it with the following two paragraphs:
As previously discussed, defense counsel failed to object to, or request an admonition regarding, many of the foregoing instances of misconduct, and defendant now asserts that such omissions disclosed incompetence on trial counsel’s part. “[A] mere failure to object to evidence or argument seldom establishes counsel’s incompetence. (See People v. Green, supra, 27 Cal.3d 1, 27.) The foregoing instances of prosecutorial argument, either singly or in the aggregate, were not so damaging or prejudicial to defendant’s case as to require a finding of incompetence. (People v. Jackson, supra, 28 Cal.3d 264, 292; People v. Frierson (1979) 25 Cal.3d 142, 158.) Counsel may well have tactically assumed that an objection or request for admonition would simply draw closer attention to the prosecutor’s isolated comments.” (People v. Ghent (9187) 43 Cal.3d 739, 772-773.)
We are not able to ascertain from this record why defendant’s counsel failed to object to the prosecutor’s arguably inflammatory rhetoric and why no curative instructions were sought. Although we can speculate as to the inner workings of trial counsel’s thought processes, and in doing so can conceive of a satisfactory tactical explanation for trial counsel’s decision not to object, we decline to engage in the degree of speculation required to hold that there indeed was such an explanation, given the limits of this record. “Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus.” (People v. Pope (1979) 23 Cal.3d 412, 426.)
This modification does not change the judgment.
The petition for rehearing is denied.
BLEASE , Acting P. J., ROBIE , J.