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People v. Ceja6/23/1994
ad the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.'" (People v. Zapien (1993) 4 Cal. 4th 929, 974, 846 P.2d 704.)
"Both the state and federal Constitutions guarantee criminal defendants the right to confront the witnesses against them. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The right of confrontation is not absolute, however; in particular, it does not preclude the prosecution from proving its case through the prior testimony of a witness who is unavailable at trial, so long as the defendant had the right and the opportunity to cross-examine the witness during the earlier proceeding at which the witness gave this testimony. [Citations.]" (People v. Cudjo (1993) 6 Cal. 4th 585, 618, 863 P.2d 635.) "As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. [Citations.]" (People v. Zapien, supra, 4 Cal. 4th at p. 975.)
Appellant's claim that he was denied the opportunity to effectively cross-examine in that his counsel at the preliminary hearing was ineffective is not supported by this record. In order to establish that a defendant has been denied effective assistance of counsel, a court must conclude that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Kaurish (1990) 52 Cal. 3d 648, 677, 276 Cal. Rptr. 788, 802 P.2d 278.) During cross-examination, witness Avila was asked questions which attempted to show that his identification of the defendant was incorrect, that he had only seen defendant for a short period of time, and that a long time had passed since the incident had occurred. Additionally, with reference to the murder charge, Avila testified he had not seen who had fired the fatal shots. In arguing that he should be allowed a hearing to determine the effectiveness of the preliminary hearing counsel, trial counsel could not say what questions should have been asked on cross-examination at the preliminary hearing or that he in fact would have asked those questions. On this record, appellant has failed to establish that he was denied effective assistance of counsel for purposes of cross-examining witness Avila at the preliminary hearing.
III
JURY INSTRUCTION REGARDING REASONABLE DOUBT
Appellant contends the trial court committed prejudicial error and violated his constitutional rights when it instructed the jury on the presumption of innocence and proof beyond a reasonable doubt in accordance with CALJIC No. 2.90.
The United States Supreme Court in Victor v. Nebraska (1994) ___ U.S. ___ [127 L.Ed.2d 583, 597, 114 S.Ct. 1239], filed March 22, 1994, has squarely rejected this contention.
The judgment of conviction for second degree murder is reversed and the cause remanded to the superior court with directions to enter a judgment of guilty of involuntary manslaughter if the prosecutor consents to forego prosecuting defendant for second degree murder and to resentence defendant accordingly; or, in the alternative, to set the cause for retrial if the prosecutor does not so consent. In all other respects the judgment is affirmed.
WOODS (Fred), J., Con
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