Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVA027496 Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Order to Show Cause issued.
Jonathan B. Steiner and Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and David Delgado-Rucci and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P. J.
Defendant Alberto Ramirez was charged with attempted willful, deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664; count 1), and assault with a firearm (§ 245, subd. (a)(2); count 2). The attempted murder count also alleged that defendant personally used a firearm within the meaning of sections 12022.53, subdivision (b), and 12022.53, subdivision (c).
All further statutory references will be to the Penal Code unless otherwise indicated.
The assault with a firearm count alleged that defendant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a), causing the offense to be a serious felony under section 1192.7, subdivision (c)(8), and a violent felony under section 667.5, subdivision (c)(8).
A conviction in 2002 under Vehicle Code section 10851 was alleged under section 667.5, subdivision (b).
The jury found defendant guilty of both charges and found the allegations to be true. Although the jury also found that the attempted murder was deliberate and premeditated the trial court subsequently struck this finding. The trial court also struck the prior conviction allegation and the section 1203.06, subdivision (a)(1), allegation in count 2.
Defendant was sentenced to the midterm of seven years on the attempted murder charge, with a consecutive 20-year sentence for personal and intentional gun use under section 12022.53, subdivision (c), for a total of 27 years. A sentence of 10 years for personal use of a gun under section 12022.53, subdivision (b), was imposed and stayed under section 654.
On the assault with a firearm count, the court sentenced defendant to the midterm of three years. It also imposed a consecutive midterm sentence of four years for personal use of a firearm under section 12022.5, subdivision (a). The sentences on count 2 were stayed under section 654.
Defendant appeals, contending that (1) the evidence was insufficient to support the attempted murder charge because of a lack of evidence that defendant intended to kill the victim; (2) the section 12022.53, subdivision (b), enhancement should have been stricken instead of being imposed and stayed; and (3) the abstract of judgment must be modified to reflect the actual sentence. We find no merit in the first two contentions, but remand for correction of the abstract of judgment.
In his petition for a writ of habeas corpus, defendant argues that he was denied his right to testify, and that his counsel was ineffective for failing to advise him of his right to testify.
By order filed March 20, 2008, we ordered the petition to be considered with the appeal for the sole purpose of determining whether an order to show cause should issue.
FACTS
The victim, Jose Aguilar, was working as a security guard at a nightclub in Bloomington on August 5, 2006. His duties included checking identification at the door and handling any problems, including fights.
Aguilar had seen defendant in the club three or four times prior to August 5, 2006. On August 5th, defendant arrived with a male friend. The friend did not produce identification, so Aguilar turned them away. The friend then went to his car, obtained identification, and both men were admitted into the nightclub. Some time later, defendant and his friend got into a verbal argument with another patron. Aguilar told all three to leave, and they did so.
Aguilar watched defendant and his friend walk to their car. He was standing approximately four feet from the door of the nightclub; defendant and his friend were parked approximately 40 feet away. Aguilar saw defendant take a chrome pistol from under the passenger seat. Defendant cocked the gun and pointed it where Aguilar was standing. Aguilar was standing next to a wall when the first shot was fired. Defendant was looking at Aguilar’s location at that time.
Aguilar tried to take cover behind the wall, and began backing up towards the entrance to the nightclub. As the car began pulling away, he heard another shot and then three more, for a total of five shots. Defendant was looking at Aguilar at the time of the third shot. After the third shot, Aguilar came out from behind the door and signaled for defendant to calm down. Aguilar then heard the fourth shot and a nearby window was broken. Aguilar stated that defendant’s head was turned away when the fourth shot was fired, and defendant was not looking directly at Aguilar. A fifth shot was fired into the air as the car was leaving. A responding deputy collected five shell casings from the parking lot.
Defendant returned to the nightclub the following night and apologized for the shooting. He went into the nightclub for a minute and then left again. Aguilar wrote down the license number of the car defendant was driving and gave it to deputies.
Defendant’s friend came separately to the nightclub the night after the shooting and asked for some change he had left at the bar. Aguilar also obtained the license number of the car defendant’s friend was driving.
Aguilar testified that defendant returned to the nightclub for a third time, two nights after the shooting. Aguilar asked defendant if he had a gun. Upon receiving an affirmative answer, Aguilar asked defendant to put it in his car. Defendant did so and Aguilar let him into the nightclub. Defendant wanted to get his change back from the night of the shooting. Defendant was arrested that night.
Defense counsel raised a number of inconsistencies in Aguilar’s testimony on cross-examination. These issues included the fact that Aguilar had stated at the preliminary hearing that he escorted four persons out of the bar, but he failed to mention (1) that the disc jockey at the nightclub was one of those persons; (2) whether Aguilar was the only person near the door when the shots were fired; (3) whether the distance to defendant’s car was 40 or 50 feet; (5) whether Aguilar or the nightclub manager described defendant and his friend to the police; (6) whether defendant returned to the bar on the next two nights after the shooting or at later times; and (7) whether defendant was alone or with a woman when he returned to the bar.
On redirect examination, the prosecutor attempted to clarify Aguilar’s testimony on some of these issues. The responding deputy testified that Aguilar reported defendant had returned to the nightclub four days after the shooting. The deputy responded to the nightclub again on August 11, the night that defendant was arrested.
Herman Rojas testified that he was the manager of the nightclub at the time of the incident. He saw defendant in the nightclub before the shooting but did not see the argument. He heard the shots fired but he did not recall giving a description of defendant to the police. He recalled that defendant came back to the nightclub a week after the shooting, and again a week after that.
Eber Velasquez, the sister of Rojas, testified that she was helping to manage the nightclub at the time of the shooting. She heard the shots and went outside. She found that a window had been broken by the gunshots. When defendant returned the first time after the shooting, he asked the cashier for his change. Velasquez remembered the visit as being a few days after the shooting. She remembered a second visit a few days later. She asked defendant to return after she had talked to the lady who had been the cashier on the night of the shooting. She recalled that defendant came back a third time a few days later. She refused to give him any money. Defendant subsequently telephoned her and she told him that she would give him the money he was requesting if he would pay for the broken window.
Defendant did not testify or introduce any evidence on his own behalf.
DISCUSSION
A. Substantial evidence supported the conclusion that defendant specifically intended to kill Aguilar.
Defendant contends Aguilar’s testimony was “internally inconsistent and falls far short of evidence that was ‘reasonable, credible, and of solid value’ to support the finding that [defendant] intended to kill him.”
Defendant cites People v. Bean (1988) 46 Cal.3d 919. In that case, our Supreme Court stated the applicable general principles: “We reject defendant’s claim that the evidence as to either count was insufficient. An appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, determine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (Id. at pp. 932-933.)
These are the basic principles of substantial evidence review, reiterated in countless cases. Our review of any claim of insufficiency of the evidence is therefore a limited review. If the evidence presented to the trial court is subject to differing inferences, the reviewing court must assume that the trier of fact resolved all conflicting inferences in favor of the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 326.) A reviewing court is precluded from making its own subjective determination of guilt or innocence. (Id. at p. 319, fn. 13.)
In more recent cases, our Supreme Court and the appellate courts have repeatedly restated the basic principles “with rhythmic regularity.” (Overton v. Vita-Food Corp. (1997) 94 Cal.App.2d 367, 370.) “[W]here the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” (Id. at p. 370.)
For example, in People v. Perez (1992) 2 Cal.4th 1117, our Supreme Court emphasized: “[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the murder.” (Id. at p. 1127.)
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Both parties cite People v. Smith (2005) 37 Cal.4th 733 (Smith). In that case, our Supreme Court discussed whether substantial evidence supported a finding of intent to kill in an attempted murder case. It found that “‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]” (Id. at p. 739.) Specifically, “[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.] ‘“The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]’ [Citation.]” (Id. at p. 741.)
After discussing the relevant principles further, the court summarized the discussion: “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been on target”’ is sufficient to support an inference of intent to kill. [Citation.] Where attempted murder is the charged crime because the victim has survived the shooting, this principle takes on added significance.” (Smith, supra, 37 Cal.4th at p. 742.)
Defendant quotes the following passage: “To summarize, in order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim, i.e., that he purposefully shot into the vehicle with ‘a deliberate intent to unlawfully take away [the baby’s] life’ [citation] or knowledge that his act of shooting into the vehicle would, ‘“‘to a substantial certainty,’”’ result in the baby’s death. [Citation.]” But Smith aids the People more than it does defendant. (Smith, supra, 37 Cal.4th at p. 743.)
Defendant argues that “there was no substantial evidence that [defendant] aimed the gun at Aguilar as he fired, and no substantial evidence Aguilar was even in the line of fire.”
We must disagree. Aguilar testified that, with regards to the first shot, defendant pointed the gun at the place where Aguilar was standing and fired. Even though the shot missed Aguilar, this testimony alone is sufficient to support a rational jury’s conclusion that defendant intended to kill Aguilar.
The People cite People v. Lashley (1991) 1 Cal.App.4th 938: “The question of defendant’s intent at the time of the shooting was a factual issue that the trial court determined adversely to him. The only possible reason for reaching a different result here rests on the untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent. There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill. The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” (Id. at p. 945.)
Defendant also contends that Aguilar’s testimony, at least as to the first shot, was physically impossible or inherently improbable. He argues that defendant, from his position in the parked car, could not have seen Aguilar from the parked car at the time the first shot was fired.
The argument is based on a photographic exhibit which Aguilar marked with the positions of the parties at the time of the first shot. We have examined the exhibit and find that it, and the other photographs admitted into evidence, do not conclusively show that there was no line of fire between defendant’s location and Aguilar’s location. Indeed, exhibit Nos. 3, 5, and 7 show that, as a result of the path the car took leaving the parking lot, the defendant was considerably closer than 40 feet at the time the fourth shot was fired, and the shot struck the window next to the door where Aguilar was standing.
The parties cite People v. Young (2005) 34 Cal.4th 1149: “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (Id. at p. 1181.)
There was nothing physically impossible or inherently improbable about Aguilar’s testimony. Since the testimony of a single credible witness is, if believed by the jury, sufficient to support a conviction, a reasonable jury could conclude that defendant intended to kill Aguilar when defendant aimed and repeatedly fired at Aguilar from 40 feet away or less.
“Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.)
B. The trial court did not err in failing to strike the section 12022.5, subdivision (b), enhancement.
The jury made true findings on two enhancements for the personal use of a firearm in certain felonies: The 10-year personal use enhancement under section 12022.53, subdivision (b), and the 20-year personal use and intentional discharge of a firearm enhancement under section 12022.53, subdivision (c).
Section 12022.53, subdivision (f), provides in relevant part: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” Section 12022.53, subdivision (h), states: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
Defendant argues that, despite section 12022.53, subdivision (h), only one sentence may be imposed under section 12022.53, subdivision (f). Accordingly, he argues that the trial court erred in imposing both section 12022.53, subdivision (b), and section 12022.53, subdivision (c), enhancements, and then staying the section 12022.53, subdivision (b), enhancement. He therefore argues that the section 12022.53, subdivision (b), enhancement should have been stricken, not stayed.
In his briefing, defendant acknowledged that the issue was currently before our Supreme Court in People v. Gonzalez (2006) 142 Cal.App.4th 436, review granted January 31, 2007, S149898. He also acknowledged that People v. Bracamonte (2003) 106 Cal.App.4th 704 decided the issue adversely to his position, and that California Rules of Court, rule 4.447, which requires that enhancements prohibited by law to be imposed and stayed rather than stricken, is also contrary to his argument.
Following briefing, our Supreme Court decided the issue. In People v. Gonzalez (2008) 43 Cal.4th 1118, it held that “section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.” (Id. at p. 1130.) We therefore reject defendant’s contention.
C. The parties agree that the abstract of judgment is incorrect.
As noted above, the trial court struck the jury’s finding that the attempted murder was willful, deliberate and premeditated. The parties agree that the offense of attempted murder is not divided into degrees (Smith, supra, 37 Cal.4th at p. 740), and that the abstract of judgment incorrectly refers to the offense as being “1st [degree] attempt[ed] murd[er].” The abstract must be modified to describe the offense simply as attempted murder.
Although not raised by the parties, the abstract also incorrectly states: “As to allegations 12022.53(c) in count 1, the court imposes the upper term of 20 [years].” The phrase “upper term” is incorrect because no sentencing choice is involved. The word “upper” should be deleted.
D. Defendant’s petition for a writ of habeas corpus.
As noted above, defendant has filed a petition for writ of habeas corpus under case No. E045325.
The petition alleges that defendant was denied his right to testify on his own behalf, and that his counsel was constitutionally ineffective for failing to advise him that he had the right to testify. In support of the petition, defendant submits his declaration and the declaration of his trial counsel.
In his declaration, defendant states that he did not know he had the right to testify, or that he had the right to decide if he wanted to testify. He did want to testify but his trial counsel told him that he could not. If he had known he could testify he would have done so. He would have testified that he did not fire a gun at the security guard, he did not point a gun at the security guard, and he did not assault the security guard or anyone else.
Defendant’s trial counsel stated, in his declaration, that he did not ever tell defendant that he had the right to testify or that the decision as to whether he would testify was ultimately his own. He discussed the case before trial with defendant and did not believe defendant would be a good witness: “Before the trial, I did not ever specifically discuss with [defendant] whether he was going to testify, and I did not ask him if he wanted to testify. I believe I made the decision not to call him to testify because I did not think he would be a good witness and I did not think he had anything to add to the case. [Defendant] and I had had no arguments, and I thought that [defendant] was on board with my strategy. I did not specifically tell [defendant] that I was not going to call him to testify.”
Defendant unquestionably had the right to testify: “The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ [Citation.] The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony: [¶] ‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.’ (Emphasis added.) [Citation.]” (Rock v. Arkansas (1987) 483 U.S. 44, 51, fn. omitted.)
With regard to the duties of counsel, the Supreme Court has also held that: “An attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy. [Citation.] That obligation, however, does not require counsel to obtain the defendant’s consent to ‘every tactical decision.’ [Citation.] But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has ‘the ultimate authority’ to determine ‘whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.’ [Citations.] Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.” (Florida v. Nixon (2004) 543 U.S. 175, 187 (Nixon).)
The fundamental principles are clear but the dispositive issue here is the proof that must be produced in order to establish that defendant did not knowingly waive his right to testify. Our Supreme Court addressed this issue in People v. Carter (2005) 36 Cal.4th 1114 (Carter): “With respect to defendant’s asserted desire to testify at trial, we are guided by well settled rules: ‘“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” [Citation.] The defendant’s “absolute right not to be called as a witness and not to testify” arises from the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution. [Citation.] Although tactical decisions at trial are generally counsel’s responsibility, the decision whether to testify, a question of fundamental importance, is made by the defendant after consultation with counsel. [Citations.] [¶] Moreover, we previously have rejected the position that a trial court must obtain an affirmative waiver on the record whenever a defendant fails to testify at trial. [Citations.]” (Id. at p. 1198.)
The Carter court cited People v. Alcala (1992) 4 Cal.4th 742, 805-806: “‘When the record fails to disclose a timely and adequate demand to testify, “a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.” [Citations.]’” (Carter, supra, 36 Cal.4th at p. 1198.)
Carter also cites People v. Cox (1991) 53 Cal.3d 618, and Cox quotes People v. Mosqueda (1970) 5 Cal.App.3d 540, 545: “‘“[A] trial judge may safely assume that a defendant, who is ably represented and who does not testify[,] is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel’s trial strategy; otherwise, the judge would have to conduct a law seminar prior to every criminal trial.”’”
Superseded by statute on other grounds as stated in Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1210-1211.
On direct appeal, the same would be true in this case. Defendant was represented by counsel and the trial court could assume that defendant’s failure to testify was the result of an informed decision to implement defense counsel’s trial strategy.
It is interesting to note that, in connection with another issue, defendant’s trial counsel divulged his trial strategy to the trial court in camera.
But our decision on the writ petition is whether an order to show cause should issue when defendant asserts that he was unaware of his right to testify, his counsel agrees that he did not tell defendant that he had the right to testify, and his counsel did not obtain his agreement to waive testifying. In addition, defendant asserts that he wanted to testify, but his trial counsel told him he could not. If factually accurate, these assertions would at least potentially constitute deficient performance of trial counsel under Nixon, supra, 543 U.S. at p. 187.
Because of the substantial issues presented by the petition, we requested an informal response to the petition. “When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred. [Citation.] To assist the court in determining the petition’s sufficiency, the court may request an informal response from the petitioner’s custodian or the real party in interest. [Citations.]” (People v. Romero (1994) 8 Cal.4th 728, 737; see also People v. Hochberg (1970) 2 Cal.3d 870.)
We have therefore requested and received an informal response from the People. In the response, the People do not mention Nixon. Instead, the People argue that there was an insufficient showing of deficient performance because defendant did not have a constitutional right to commit perjury. However, the argument assumes that the victim was telling the truth and that any contrary testimony by the defendant would be perjury. But the determination of credibility was for the jury, and we cannot assume the jury would have believed the victim’s story if defendant had testified.
Strickland v. Washington (1984) 466 U.S. 668 and the multitude of cases following it require that a defendant who presents a claim of ineffective assistance of counsel on appeal must show that the performance of his trial attorney was deficient, i.e. the issue is “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.” (Id. at p. 686.) To prevail on appeal, defendant must also show that he was prejudiced by counsel’s deficient performance. To prove prejudice, “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.” (Id. at p. 694.)
As discussed above, we find that the defendant has stated a prima facie case of deficient performance by his trial counsel under Nixon. We also find that he has stated a prima facie case of prejudice. The only percipient witness against defendant was Aguilar. If defendant had taken the stand and testified, as stated in his declaration, that he did not fire a gun at Aguilar, he did not point a gun at Aguilar, and he did not assault Aguilar or anyone else, the jury would have been presented with a simple credibility issue. The verdict would depend on the jury’s resolution of the credibility issue, and we find that defendant has at least shown a reasonable probability that the outcome of the trial might have been different. Defendant has therefore made a prima facie showing of ineffective assistance of counsel.
The People argue that “[u]nder these circumstances, trial counsel cannot be faulted for failing to procure Petitioner’s testimony at trial.” But the issue is not whether counsel should have presented defendant’s testimony at trial. Instead, under Nixon, supra, 543 U.S. at page 187, an attorney must both consult with the defendant and obtain consent to the recommended course of action. The declarations of defendant and his trial counsel provide evidence that establishes defendant’s counsel did not carry out either of those duties.
Since defendant has stated a prima facie case of denial of his right to testify due to ineffective assistance of his trial counsel, his request for an order to show cause on his petition for habeas corpus is meritorious and the order should be granted. (People v. Romero, supra, 8 Cal.4th 728; Cal. Rules of Court, rule 4.551(c)(1).)
DISPOSITION
The judgment in case No. E043539 is affirmed. The trial court is directed to correct the abstract of judgment in accordance with this opinion, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The request for an order to show cause on the petition for habeas corpus in case No. E045325 is granted. A separate order will be filed in the petition for writ of habeas corpus and the writ petition will no longer be considered with the appeal.
We concur: KING, J., MILLER, J.