Opinion
A148739
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. REGINALD LETT, SR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR219133)
Reginald Lett, Sr. was convicted of raping his brother-in-law's girlfriend, Sandra C. He contends the trial court should have dismissed the case as a sanction for the prosecution's failure to preserve exculpatory text messages between himself and Sandra. He also contends defense counsel was constitutionally ineffective when he misinterpreted the time stamps on Sandra's phone records and then failed to object when the prosecutor exploited the error at trial to argue that Lett lied about when the calls were made. We affirm.
BACKGROUND
I. Prosecution Case
Sandra was acquainted with Lett and his wife through her boyfriend William, Lett's brother-in-law. In 2013 Sandra and William were having relationship problems. After a particularly heated fight in June or July, at William's suggestion Lett took Sandra to his home and helped her calm down. After that incident Sandra and Lett grew closer, and she began seeking advice from Lett about her relationship with William and William's family. Sandra called Lett around 22 times in the month leading up to September 25, sometimes talking for hours. Their conversations addressed their personal relationships and an argument between William and Lett, so Sandra kept the calls private from William. Lett also occasionally visited Sandra and William at their home. Describing her relationship with Lett, Sandra testified, "I looked at him as a brother/brother-in-law. We talked a lot."
We will refer to Sandra C. and William S. by their first names to preserve their privacy. We intend no disrespect by this practice.
Sandra testified that she was home alone around 11:00 or 11:30 p.m. on September 25, 2013, when Lett dropped by unannounced and uninvited. Lett made himself a drink. Sandra showed him photographs of some rugs she had ordered. Lett said, " 'You really do love [William], don't you? . . . 'Cause you are playing home.' " The two spoke for a while about Sandra's new job and Lett's birthday.
Lett said, " 'I fell in love with you that day I came over and got you that time,' " and " 'you need to be with me. I can treat you better than William.' " Then he grabbed one of Sandra's breasts. Sandra told him to leave and said he was disrespecting her, his wife and William.
Lett started to go but delayed at the doorway until Sandra approached and started to open the door for him. Lett pushed it shut, grabbed Sandra by the neck, "flipped" her over onto the couch and held her down with all his weight. Sandra struggled, but she could not break free. Lett said she only had to agree to " 'be with' " him " 'just one time.' " Lett forced Sandra to engage in oral and vaginal sex.
When it was over Lett pulled up his shorts and went to the door. He said, " 'Are you going to tell William? Are you going to call the cops?' " Sandra replied, " 'No. Just leave. Just leave and don't ever come . . . here.' " About 45 minutes later she drove to the Vallejo Police Station and reported the rape. A sexual assault examination performed at 6:00 a.m. on September 26 documented bruises on Sandra's thigh and arms, a laceration at the entrance of her vagina consistent with blunt force trauma, an abrasion on her labia minora and petechiae under the skin on her hymen. Although forensic sexual assault examinations of 60 to 70 percent of adult victims reveal no physical injuries, Sandra had injuries "in the top three places [a forensic nurse] would expect to see them if there was injury." Lett's sperm was detected on swabs from Sandra's vagina.
Lett was arrested and interviewed after he waived his Miranda rights. Police seized his two cell phones. Lett told police that Sandra telephoned him almost every day, came over to his house when no one else was there, and discussed her personal and sexual issues with him. Sandra and Lett engaged in consensual sex at Sandra's house once prior to September 25. On September 25 they talked on the phone for about 90 minutes, starting around 1:00 p.m. That night Lett left home around 10:15 or 10:30 to go to his gym, but he hadn't paid his membership so he couldn't get in. Instead he went over to William and Sandra's house. William was not there. Lett said he and Sandra had some drinks, talked, and had consensual sex.
Miranda v. Arizona (1966) 384 U.S. 436.
II. Defense Case
William testified that he introduced Sandra to his sister and her husband (Lett), at a gathering at the Letts' home in July 2012. After that the two couples occasionally socialized. In July 2013 William and Sandra had a fight and Sandra called the police. William called Lett and asked him to come over "in case the police did something stupid, like take me to jail for no reason," and William sent Sandra to the Letts' house to defuse the situation. After that incident Lett's wife noticed that Lett and Sandra would talk on the phone and Lett often took Sandra's side when they discussed William's relationship issues.
Lett testified that Sandra started calling him almost daily after the July 2013 incident. They also communicated through text messages. Their exchanges were innocent at first, but eventually became sexually charged. In mid-August, Lett and Sandra had consensual sex. Afterward they agreed it was a mistake, but, according to Lett, in September "the phone calls started up again, from her, that led to us getting together again September 25th."
We will discuss additional evidence as it relates to the specific issues addressed below.
DISCUSSION
I. Failure to Preserve Text Messages
Lett contends the court abused its discretion when it declined to dismiss the case as a sanction for the prosecution's failure to preserve text messages on Sandra's cell phone. We disagree.
A. Background
Before trial Lett alerted the court that two months earlier the newly assigned prosecutor, Adam Wright, e-mailed defense counsel that "[i]n the interests of full disclosure, there is a note in the file from two prosecutors ago saying 'Text messages indicate relationship was more (at least emotionally) intimate [than] V is saying.' So at some point, it sounds like that prosecutor at least viewed some text messages, if not had them in his possession. I spoke to Shelly Small, the most recent prosecutor on this case before me, and she explained that she was never able to find any text messages in our file or with the police department. [¶] Do with that information what you will, but I felt you should know. I will follow up with the police department to see if they have any text messages in evidence."
The court heard arguments about the missing text messages over the course of the trial. Defense counsel asserted that some of the missing texts showed that Lett and Sandra were sexually involved and would therefore help the defense show the alleged rape was consensual sex. A forensic analyst had determined that no data could be extracted from Lett's two cell phones. Lett told police that he always deleted text messages because he did not want his wife to see them, but no one knew whether the loss of data was due to Lett's "wiping" his phones or occurred while the phones were in the custody of police or the District Attorney.
A recording of Lett's police interrogation was played for the jury. An officer asked if there were texts on his phone that would support his side of the story. Lett responded that he deleted everything, but that Sandra probably did not. He volunteered that his Verizon account would show how often Sandra called him. At trial, Lett testified that Sandra sent him an explicit text message complimenting his sexual abilities after their first sexual encounter.
Sandra testified that on the night of the incident police viewed text messages on her phone between her and Lett. Later she showed the messages on her phone to someone in the District Attorney's office.
Vallejo Police Officer Amanda Blain took Sandra's report the morning after the rape. Sandra showed Officer Blain "some text message[s] that she flipped through" on her phone, which she said were from Lett. Officer Blain read the texts but had no way to download them. She did not include them in her report.
Andrew Ganz was the prosecutor initially assigned to the case. After Wright took over the prosecution he discovered the former prosecutor's note, provided it to defense counsel and tried to find out why there were no text messages or downloads in the case file. His investigation confirmed that Lett's phones were never forensically analyzed or their data downloaded. Attempts to obtain records of the text messages from the cell phone provider were fruitless because the provider does not keep the contents of text messages.
Ganz testified out of the jury's presence in an Evidence Code section 402 hearing. He drafted the note in preparation for handing the case off to another prosecutor. His memory of the case was sketchy. He did not recall seeing text messages from Sandra's phone and did not personally go through Lett's phones or extract information from them. Ganz thought the Vallejo Police Department, not the District Attorney's Office, had custody of Lett's phones and was "almost certain" that the prosecution "never ended up doing anything with the phones. Reading that transcript refreshes my memory of about sort of being on notice about hey, we got these phones. It may not be a bad idea to do something with them, but I recall pretty certainly we just never did. That's why eventually the sort of clock ran out."
Ganz explained his note in the case file: "I clearly wrote something here that indicates I would have seen some text messages. I hope that is because I actually did and didn't hear something from somebody and was writing based on what someone told me. I hope I didn't do that, but that is one possibility based on some representation that somebody made to me. Another possibility is somehow or another I had possession of some text messages, although I don't remember that, and that since this note was made and since this case was reassigned, which I think was somewhere between a year and a half and two years ago, maybe they aren't there anymore." Ganz also thought it possible that someone from the defense team showed him text messages, but he did not recall that happening.
Defense counsel moved for dismissal or, in the alternative, for leave to call Ganz as a trial witness. The court found that evidence of the content of the texts suggested by Ganz's note was both exculpatory and material under Brady[] but there was no Brady violation "in terms of discovery" because the note was disclosed more than 60 days before trial. The court also found "there was a failure to preserve evidence here. At least one can make that argument. The defense certainly has grounds to make that argument. Prosecution may differ on that. They may offer alternative explanations." The court further found the evidence supported an inference that Ganz's note was based on his having seen Sandra's texts. Consequently, it ruled that the defense could call and question Ganz and introduce his note. "Whether it's secondary evidence or opinions only, this is all that we have left of this discussion and of this evidence. "
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
The court recognized that "obviously there is a dispute where this information came from. [¶] Maybe it was what the defense told Mr. Ganz. I don't know, but what I am simply saying there is sufficient evidence to draw an inference these came from Ms. [C.]'s phone. And the defense is entitled to present that in argument, so I also considered whether dismissal would be appropriate. At this point I don't think it is. I think the presentation of the evidence at this point is a sufficient remedy." The court also allowed Lett to impeach Sandra with Ganz's notation that " 'text messages indicate relationship was more at least emotionally intimate than victim is saying.'"
Ganz was questioned before the jury about his notation in the case file. He repeated that he did not remember viewing Sandra's text messages, although it was possible. The note itself suggested he had seen the messages it referred to, "although I imagine it's possible if someone told me about messages, which I'm not saying happened. I just don't remember. I may have written that exists, but I would have hoped I would have seen something." Nor did Ganz remember discussing text messages with Officer Blain. He agreed that if he had seen text messages suggesting Lett and Sandra were intimate he would have been obligated to turn them over to the defense. If he had seen messages suggesting an actual sexual relationship, he would have noted the point in his memo. Moreover, he "would have likely had much different thoughts about proceeding with the case if [he] saw something like that."
Following the verdict, the court denied a new trial motion brought on the basis of the missing text messages.
B. Analysis
Lett contends the court violated his due process rights when it declined to dismiss the case as a sanction for the police or prosecution's failure to preserve Sandra's text messages, which he asserts would have substantially buttressed his defense that their sexual encounter on the night in question was consensual or, at least, that he reasonably and in good faith believed it was. But the court's selection of a less drastic sanction was within its discretion.
Our analysis begins with the trial court's finding that the lost text messages were both material and exculpatory. The Due Process Clause of the Fourteenth Amendment requires the state to preserve evidence that is material to a defendant's guilt. (California v. Trombetta (1984) 467 U.S. 479, 485 (Trombetta).) Material evidence is "that which 'might be expected to play a significant role in the suspect's defense. To meet this standard . . . , [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez), citing Trombetta, supra, at pp. 488-489.)
The People do not directly dispute the court's findings that the missing texts were material and exculpatory. Instead, they suggest the court did not "unambiguously" find the police or prosecution failed to preserve evidence but was merely perturbed by Ganz's inability to remember how and what he knew about the text messages. Not so. The court explicitly found that sufficient evidence supported an inference the missing texts came from Sandra's phone. It expressly "recognize[d] once the D.A. comes into possession of evidence that could be exculpatory or material, in my view it's irrelevant whether the defense could get that on their own or not, whether they think of it or not. At that point the D.A. has it. They need to turn that over." The People's suggestion that the court did not find a Trombetta violation but merely "wished to remedy Ganz's inability to recall and preserve the source of his information about the text messages" is unpersuasive.
In any event, the People do not dispute that the court's finding of a Trombetta violation is supported by substantial evidence. (See People v. Montes (2014) 58 Cal.4th 809, 837 [Trombetta ruling reviewed for substantial evidence].) The question, therefore, is whether, as Lett maintains, the violation required dismissal of his case. "[C]ourts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. '[N]ot every suppression of evidence requires dismissal of charges. . . . The remedies to be applied need be only those required to assure the defendant a fair trial.' " (People v. Zamora (1980) 28 Cal.3d 88, 99 (Zamora); People v. Yeoman (2003) 31 Cal.4th 93, 126.)
"Review of prior cases suggests the factors that guide the exercise of that discretion. First, 'the imposition and mode of sanctions depends upon the particular circumstances attending such loss or destruction.' [Citation].) Thus, lawful and proper destruction requires no sanction [citations]; illegal and malicious suppression of evidence may result in dismissal [citations]. [¶] Second, the sanction depends on the materiality of the evidence suppressed. In Hitch [(1974) 12 Cal.3d 641], for example, we noted that bad faith destruction of evidence which might conclusively demonstrate innocence could require dismissal. [Citation.] Suppression of evidence which might impeach a witness for bias, however, may result in a new trial instead of a dismissal [citation]; suppression of evidence immaterial to the charge invokes no sanction [citation]. [¶] Finally, the courts must consider the impact of the sanction upon future cases and future police conduct. If a sanction is to deter suppression of records and evidence, it must contain a punitive element; it must outweigh the benefit that the prosecution gains from the suppression. At the same time the court must bear in mind the public interest in law enforcement, and the harm which may be inflicted by a sanction which prevents the trial and conviction of possibly guilty future defendants." (Zamora, supra, 28 Cal.3d at p. 100.)
Despite the missing text messages, we are satisfied the admission of Ganz's note and testimony was sufficient to assure Lett a fair trial. There is nothing to suggest their disappearance was intentional or malicious. Moreover, it is not certain the messages would have evidenced a sexual relationship. Lett maintained that they would have. But Sandra testified their relationship was purely platonic, and Ganz testified that, if he had seen texts suggesting a sexually intimate relationship, he would have included that fact in his memo and considered proceeding differently with the case. He did neither. Moreover, there was ample other evidence that Lett and Sandra were at least emotionally intimate. Finally, although the court declined to dismiss the case pursuant to Trombetta, it granted Lett the alternative remedy he sought. He was afforded leave to introduce Ganz's note and question him about it in front of the jury. On this record, that remedy provided Lett a fair trial.
Lett disagrees. He argues the court declined to dismiss the case only because "the text could have been obtained earlier by [Lett]," but his argument misrepresents the court's reasoning. The court did observe that "the defense could have got [Sandra's cell records] on their own," but it also made clear that this was not the basis of its ruling "once the D.A. comes into possession of evidence that could be exculpatory or material, in my view it's irrelevant whether the defense could get that on their own or not. . . ."
Lett also suggests the court should have instructed the jury they could assume Sandra's texts would have been adverse to the prosecution, but he did not request an adverse inference instruction and, absent a finding of bad faith destruction of evidence, there is no sua sponte duty to give one. (People v. Medina (1990) 51 Cal.3d 870, 894.) It was within the court's discretion to reject dismissal in favor of the less drastic alternative remedy proposed by the defense.
II. Ineffective Assistance of Counsel
A. Background
In his opening statement, defense counsel tried to lay the basis for Lett's defense that the alleged rape was consensual sex. To that effect he emphasized that Sandra called Lett 22 times in the month before the charged incident, sometimes talking for hours. Counsel also said Sandra called Lett twice the night of the rape "to request him coming over so that they could have sex. And even if you forget the minute-and 21-second that I'm referring to there, how can one forget an 82-minute telephone call, which occurs at . . . 7:58, 8:00 p.m., on the night of that final sex act. [¶] And the interesting thing about that is that, at least for that last phone call, [Sandra] knew that [William] would be away that night, and that the final phone call came in after [William] had left his home. " But, counsel said, Sandra never told police about those calls.
On cross-examination defense counsel used Sandra's phone records to establish that she called Lett twice that night, first at 7:58 p.m. and again, briefly, at 9:20 p.m. Sandra did not remember calling Lett at those times but conceded under questioning that "if it's on the phone record, it's not an error." On redirect, Sandra testified that she did not call Lett that night to ask him to come over. But when defense counsel asked on recross whether Sandra called Lett at 9:20 that night, she responded "I possibly could have. We talked a lot."
Lett testified on direct examination that he received two calls from Sandra on September 25, one long and one short. In the second, shorter call, Sandra said, " 'Come over late.' " Lett estimated that he arrived at Sandra's house around 10:00 or 10:15 p.m. Shown phone records that reflected two calls from Sandra on August 26, 2013, a month before the charged incident, Lett testified he thought the records were accurate " 'Cause I answered the calls."
As it turned out, the phone records displayed call times in Coordinated Universal Time (UTC, formerly known as Greenwich Mean Time), which is seven hours ahead of Pacific time. Accordingly, Sandra's two September 25 phone calls were actually placed at 12:58 and 2:20 p.m., seven hours earlier than defense counsel indicated in his opening and in questioning Sandra. At the prosecutor's request the court judicially noticed the difference between local and UTC time and defense counsel acknowledged his error. Under resumed direct examination, Lett testified that he did not remember the exact time Sandra called him, and that it could have been in the afternoon. But he was certain she had called him to come over to her house on the date of the incident.
The prosecutor argued in closing that Lett lied about the timing of the September 25 phone calls. "[Lett] described a scenario where they talked earlier in the afternoon, then he gets a call at night to come over to [Sandra]'s home, he goes over. She called him over. They built their story around that and that narrative. And they used their phone records. They presented those records to you. [Defense counsel] put them up on the screen and questioned Mr. Lett. If you go back and read some of the testimony, he specifically quoted certain times and dates on those phone records to have Mr. Lett say, 'Yep. I remember those calls on that date and that time.' The implication the entire time was that these are records showing when these calls were made."
After reminding the jury that the phone records listed the times of calls in UTC, the prosecutor continued, "Once you learn, however, that these calls were not in fact at those time periods, seven hours earlier, they actually show that what [Sandra] was saying was true. They had these conversations. She was like, 'Yeah, we talked earlier.' She was supposed to go over there at one point. And then he shows up unannounced to her house. [¶] So when their own evidence, Ladies and Gentlemen, that Mr. Lett testified to under oath that he received these calls and got called over that night, when that proves to be not true by their own records, you should have very serious doubts about the source of information you received from Mr. Lett. Those records prove it."
In rebuttal argument, the prosecutor queried why defense counsel had not addressed certain contradictions and gaps in the evidence. He said "[W]hy not address the phone records that caught Mr. Lett in the biggest lie in this case? They married their theory of this case to those phone records, in large part. Late night phone call, got called over, consensual affair. That was a huge explanation for what happened in this case and it wasn't there by their own records. And it was a mistake because then they had to try to backtrack and you heard Mr. Lett get on the stand after this was all revealed 'well, Mr. Lett did you learn that maybe the time[s] weren't entirely true?' 'Yeah, maybe the call was earlier in the afternoon.' You can take that however you would like. I think you know how we're suggesting you ought to take it."
B. Analysis
A defendant bears the burden of proving by a preponderance of the evidence that he or she is entitled to relief on a claim of ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425; People v. Ledesma (1987) 43 Cal.3d 171, 218 (Ledesma).) To establish constitutionally ineffective legal representation, a defendant must show both that his trial attorney's performance fell below an objective standard of reasonableness and that the defalcations were prejudicial. "Prejudice generally requires an affirmative showing that, absent counsel's errors, there is a reasonable probability of a more favorable outcome. [Citation.] A 'reasonable probability' is not a showing that 'counsel's conduct more likely than not altered the outcome in the case,' but simply 'a probability sufficient to undermine confidence in the outcome.' " (In re Cordero (1988) 46 Cal.3d 161, 180; Strickland v. Washington (1984) 466 U.S. 668, 693-694.) Thus, " 'When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.' " (Ledesma, supra, at p. 218.)
We "defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: ' "Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Lett asserts his lawyer's "bungling" of the phone records was constitutionally ineffective legal assistance requiring reversal. We disagree. There is no dispute that counsel misread the records, or that the mistake undermined his attempt to establish that Sandra called Lett on the night of the incident to invite him over. But "[i]t 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.] Specifically, '[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Lett cannot demonstrate such a probability. First, defense counsel's misstep was not likely to have persuaded the jury that Lett was a liar. Lett testified that Sandra called him twice on September 25 and that he went to her house that night, but he neither told the police nor testified that Sandra called him at night. True, defense counsel represented in his opening statement and cross-examination that she placed the calls around 8:00 and 9:20 p.m. But the jury was instructed that "[n]othing the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence. . . . Do not assume that something is true just because one of the attorneys asked a question that suggested it was true." Lett gives no persuasive reason to abandon our generally applied presumption that the jury followed the instructions it was given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
Second, the primary importance of the call was its purported content—i.e., to invite Lett to come over that night—not the time at which Sandra made it. Whether Sandra called Lett earlier that afternoon or closer to when he arrived at her door was not critical. Indeed, defense counsel emphasized in closing argument that the import of the phone records was the direction, frequency and length of the calls, not their specific timing. He reiterated that "the two telephone calls that occurred on the 25th of July [sic], which we all agree is the day that Mr. Lett came over and where these allegations stem from, those can't be disputed because it's in the record. There were two telephone calls, one of them 72 minutes in length and one of them a minute and 21 seconds in length, both coming from [Sandra], both to Mr. Lett, both—well, at least one asking him to come over that night." It seems improbable that defense counsel's mistake about the time of day when Sandra made those calls significantly diminished their evidentiary value for the defense.
Finally, this case at its heart pitted Lett's credibility against Sandra's. When cross-examined with the phone records, Sandra herself conceded that she could have made the second phone call at 9:20 p.m. To the extent that defense counsel's mistake about the phone records could have created an impression that Lett lied about the time of Sandra's calls, any error would thus seemingly have harmed Sandra's credibility as well. It is not reasonably probable that counsel's error affected the outcome.
Lett also asserts his counsel was ineffective in failing to object to the prosecutor's misstatements in closing argument, set out above, that Lett lied about the time of those last phone calls. Here, too, we disagree. We may second-guess such a decision only if the record affirmatively reveals that counsel had no rational tactical purpose for it. (See People v. Frierson (1991) 53 Cal.3d 730, 749; People v. Garrison (1989) 47 Cal.3d 746, 784.) "[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal." (People v. Frierson, supra, 53 Cal.3d at p. 749.) Indeed, "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.) Here, for example, defense counsel may have decided as a tactical matter that an objection would simply draw the jury's attention to the prosecutor's comments. (See, e.g., People v. Ghent (1987) 43 Cal.3d 739, 772-773.) Or he could have decided an objection might antagonize the jury or distract it from the core significance of Sandra's phone calls. Indeed, counsel blunted the prosecution's assertions in his own argument by stressing that, no matter what, the records proved that Sandra called Lett twice the day of the incident, "at least on[c]e asking him to come over that night." This record provides no basis to second guess defense counsel's apparent decision to refrain from objecting.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J.
We concur:
/s/_________
Jenkins, J.
/s/_________
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------