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People v. Ellis5/28/2003
s as an exception to the election doctrine."
Defendant's arguments are unpersuasive. If the prosecution may charge several acts of petty theft as grand theft where all the takings are "motivated by one intention, one general impulse, and one plan" under Bailey, the exception to the election doctrine applies. As a practical matter, multiple acts of petty theft involving more than $400 are chargeable as grand theft under section 484g because of their cumulative impact; they are an exception to the election requirement for the same reason. (See Thompson, supra, 160 Cal.App.3d at p. 225.) We conclude the court did not err in declining to order the prosecution to elect the specific acts that allegedly violated section 484g in counts six and seven.
III. Ineffective Assistance of Counsel
During direct examination, defense counsel asked defendant whether she had "ever been convicted of a criminal offense." She responded "Yes" before the court could sustain the prosecution's relevance objection. At the ensuing sidebar conference, defense counsel explained that defendant would testify she had a 1989 DUI conviction. The court indicated that if the defense sought to introduce what the court considered evidence of good character, the prosecution would be given free reign to introduce evidence to the contrary. Defense counsel argued he was not opening the door to character evidence because the DUI was evidence of bad character. The court responded, "No, because what you're doing is that you are, in essence, putting on evidence of good character by demonstrating she has been convicted of nothing other than a DUI." At that point, defense counsel decided not to pursue the matter further. There was no testimony to explain the nature of defendant's prior criminal offense.
Defendant argues on appeal that in a case where her credibility was critical, defense counsel's attempting "with no apparent appreciation for the consequences, an ill-advised line of questioning about prior criminal history, and then aborting that line of questioning only after severely damaging credibility with the jury, constituted ineffective assistance of counsel . . . ." There is no merit in this argument.
"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] `A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 (Scott), quoting Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) In assessing counsel's performance, " actical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Defense counsel's question about his client's prior offense is likely explained by the decision to have her testify at trial. The court suggested defense counsel's tactic might have been to show good character, that is, the fact defendant's only prior was a 13-year-old misdemeanor. Counsel might then have argued defendant had no prior felonies or theft-related offenses during her many years of work as a caretaker. It is possible defense counsel wanted to show defendant was familiar with the effects of alcohol to bolster testimony that suggested she was cooperating in efforts to get Michelis to stop drinking. In any case, defense c
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