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People v. Ford8/25/2005
ttorney charged defendant with attempted deliberate and premeditated murder in violation of sections 187 and 664. The district attorney also charged defendant with personally discharging a firearm within the meaning of section 12022.53, subdivision (d), and personally inflicting great bodily injury within the meaning of section 12022.7, subdivision (a).
The jury returned a guilty verdict on the attempted murder offense and true findings on the enhancement allegations. On July 8, 2004, the trial court sentenced defendant as follows: a term of life with the possibility of parole for the attempted murder; a consecutive term of 25 years to life for the firearm enhancement; and a consecutive term of three years for the great bodily injury enhancement.
3. Ineffective Assistance of Counsel
Defendant claims his trial counsel provided ineffective assistance in portraying him as a sexual pervert and, specifically, allowing the prosecutor to present evidence of his prior acts of sexual abuse. Defendant also claims his trial counsel failed to present a consistent and viable defense theory.
To support an ineffective assistance of counsel claim, the defendant must show both that trial counsel's performance fell below the standard of a diligent and reasonably competent attorney and that it is reasonably probable that a more favorable outcome would have resulted absent counsel's deficient performance. (People v. Lewis (1990) 50 Cal.3d 262, 288, citing Strickland v. Washington (1984) 466 U.S. 668, 687-696; People v. Fosselman (1983) 33 Cal.3d 572, 584; People v. Pope (1979) 23 Cal.3d 412, 425.) "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212, quoting Strickland v. Washington, supra, at p. 694.)
Generally, reviewing courts defer to counsel's reasonable tactical decisions and presume that counsel's performance fell within the wide range of reasonable professional conduct. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Tactical errors, therefore, do not warrant a reversal where the record does not reveal the reasons for counsel's tactical decisions, unless there could be no conceivable legitimate reason. (Ibid.)
A. Sexual Abuse Evidence
Defendant's trial attorney stipulated to allow the prosecution to present evidence of defendant's prior sexual misconduct in exchange for evidence of the victim's prior misdemeanor crimes involving violence. Based on their stipulation, the prosecution presented the testimony of Desiree K., defendant's stepdaughter. Desiree testified that, when she was six years old, defendant asked her if she masturbated. He then took off her shirt and licked her nipples. She also testified that, when she was 13 years old, defendant offered her $100 to give her a massage. During the massage, defendant fondled her butt and tried to penetrate her vagina with his hand. Desiree recalled another incident when she was about 16 years old. Defendant made another offer to give her $500 or $600 for a massage. She refused. Desiree also testified that, when she was 21 years old, defendant went to her bedroom and tried to get into bed with her. Desiree was able to get away and lock herself in the bathroom. Based on this evidence and the other evidence presented at trial, defendant's trial attorney repeatedly disparaged his client, calling him, among other thing, a "sexual pervert." He argued that, even if defendant was a "sexual pervert" and a "very evil man," he did not intend to kill Johnson.
Although the record does not reveal counsel's underlying justifications, it shows that defense counsel agreed to admit Desiree's testimony
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