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People v. Ford8/25/2005
in exchange for evidence against Johnson. While an appellate court should not second-guess a trial attorney's tactics, we cannot conceive of a legitimate reason for any reasonable attorney to stipulate to the admission of child molestation evidence in an entirely unrelated homicide case. Despite any advantage gained from the evidence against Johnson, a reasonably competent criminal defense attorney would not have agreed to allow this otherwise inadmissible and highly inflammatory evidence.
The only question is whether defendant can show that counsel's performance resulted in prejudice-i.e., a reasonable probability that defendant would have obtained a more favorable outcome absent counsel's failings. (People v. Lucero (2000) 23 Cal.4th 692, 728; People v. Aveena (1996) 13 Cal.4th 394, 418.) While defendant argues that the admission of the sexual molestation evidence was fundamentally unfair, fundamental fairness is not a knee-jerk reaction, but a determination based on the denial of some substantive or procedural right. Unless counsel's performance affected some issue critical to defendant's case, thereby rendering unreliable the jury's verdict, defendant cannot establish prejudice as required to prevail on a claim of ineffective assistance of counsel. (See In re Cudjo (1999) 20 Cal.4th 673, 687; In re Vargas (2000) 83 Cal.App.4th 1125, 1133.) While the sexual molestation evidence was clearly irrelevant, it had no effect on the reliability of the jury's verdict because of the overwhelming evidence of defendant's guilt.
As stated in defendant's opening brief, " he facts universally demonstrated without question that [defendant] was the aggressor in this event . . . ." Several witnesses, who were at the bar, testified concerning defendant's aggressive and hostile conduct on the night of the shooting. When he approached Johnson the second time and asked for the pool table, defendant displayed his gun and threatened that he could take the table from him. Afterwards, defendant asked Johnson to step outside. About a minute later, the patrons inside the bar heard the gunshot. Then Johnson staggered back inside the bar with his hand over his chest. Johnson testified that defendant shot him in the chest.
During his police interview, defendant said that, upon seeing Johnson and his friends, he went home and retrieved his revolver. Defendant admitted that he approached Johnson and displayed his gun. According to defendant, when the two of them were outside the bar, he took out his gun, cocked it, pointed it at Johnson, and it fired accidentally. Defendant said that he panicked, ran to his truck, drove away, and threw the gun over the side of a bridge. Although defendant claimed that the shooting was an accident, his conduct both before and after the shooting provided further evidence of his guilt.
Johnson's testimony, defendant's admission, and the testimony of the other witnesses left no room for doubt concerning the fact that defendant shot Johnson. The circumstances surrounding the incident also contradicted defendant's self-serving claim that the shooting was accidental. We conclude, therefore, that defendant cannot establish that he would have obtained a more favorable verdict without the sexual molestation evidence.
B. Defense Theory
Defendant also claims his trial counsel provided ineffective assistance in failing to present a consistent and viable defense theory.
The decision to present one or more defense theories is a tactical choice. An attorney does not render ineffective assistance in choosing one or more defense theories over any others. (People v. Cunningham (2001) 25 Cal.4th 926, 1007.) Although the presentation of incons
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