Filed 3/27/14 P. v. Williams CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133987
v.
HORATIO VAN-ELLIS WILLIAMS,                                          (Contra Costa County
                                                                     Super. Ct. No. 5-111060-0)
         Defendant and Appellant.


In re HORATIO VAN-ELLIS WILLIAMS,
                                                                     A136466
         on Habeas Corpus.


         Horatio Van-Ellis Williams (appellant) appeals from a judgment entered after a
jury found him guilty of vehicular manslaughter with gross negligence (Pen. Code, § 192,
subd. (c)(1)1), reckless driving with great bodily injury and a prior conviction
(Veh. Code, § 23104, subd. (b)), and reckless driving with specific injury (Veh. Code, §
23103, subd. (a)). He contends the trial court erred in allowing evidence of two prior
arrests and one prior conviction for reckless driving to come into evidence. Appellant
has also filed a petition for a writ of habeas corpus in which he contends his appointed
counsel was ineffective because she failed to investigate and pursue a misidentification
defense and made only an ineffectual effort in trying to keep out evidence of his prior
acts. We reject the contentions and affirm the judgment.



         1
             All further statutory references are to the Penal Code unless otherwise stated.


                                                             1
                          FACTUAL AND PROCEDURAL BACKGROUND
       An information was filed July 15, 2011, charging appellant with: (1) vehicular
manslaughter with gross negligence (§ 192, subd. (c)(1), count 1); (2) leaving the scene
of an accident involving a fatality or permanent serious injury (Veh. Code, § 20001,
subds. (a), (b)(2), count 2); (3) reckless driving with great bodily injury
and prior conviction (Veh. Code, § 23104, subd. (b), count 3); and (4) reckless
driving with specific injury (Veh. Code, § 23103, subd. (a), count 4). The information
further alleged as to the vehicular manslaughter charge that appellant fled the scene of the
crime (Veh. Code, § 20001, subd. (c)), and lastly alleged that appellant had served two
prior prison terms (§ 667.5, subd. (b)) on convictions that left him ineligible for probation
(§ 1203, subd. (e)(4)).
       On September 21, 2011, the trial court granted appellant’s motion to bifurcate the
prior conviction allegations, but not as to the prior conviction element of the vehicular
manslaughter with gross negligence charge. After a jury trial, the jury returned its verdict
finding appellant guilty of vehicular manslaughter with gross negligence (count 1),
reckless driving with great bodily injury and a prior conviction (count 3); and reckless
driving with specific injury (count 4). The jury acquitted appellant of the charge that he
fled the scene of an accident (count 2) and found not true the enhancement allegation that
he fled the scene of an accident. The trial court granted the prosecution’s motion to
dismiss one of the prior prison term allegations and granted the defense motion to dismiss
the other. Appellant waived jury trial on the prior conviction probation ineligibility
allegation, and after a bench trial the court found the allegation true. On October 28,
2011, the trial court sentenced appellant to six years in prison.
                                        The Incident
       The information was based on an incident that occurred on March 24, 2010. That
day, Jeremy Watkins was driving eastbound on Highway 80, traveling in a Ford van from
his workplace in Berkeley to his home in Martinez. At about 3:50 p.m., a black BMW
with tinted windows caught Watkins’s attention. Traffic was fairly heavy at the time but
“was moving” “[b]etween 55 to 65 miles per hour.” From his rear and side-view mirrors,


                                              2
Watkins saw the BMW making erratic lane changes and driving at an excessive speed.
As Watkins drove in the number 2 lane (of four) near the Central Avenue merge on
Highway 80, he saw the black BMW “flash” behind him and enter the number 1 lane to
Watkins’s left. The BMW tailgated the car in front of it before passing by Watkins, and
then proceeded “swiftly” and “very erratically” from the number 1 lane to the number 3
lane. There, the BMW briefly tailgated the vehicle in front of it, before making another
“erratic” lane change and moving into the number 4 lane. There were several cars ahead
of the BMW in lane number 4 at that point.
       From 30 to 40 feet away, or perhaps closer, Watkins kept watching the BMW
because he “was afraid for what this vehicle was going to do next.” Within seconds, the
BMW pulled onto the shoulder of the highway—to the right of the number 4 lane—and
accelerated and passed the car it had been tailgating. This all occurred before the Central
Avenue merge point. While driving 55 to 60 m.p.h. himself, Watkins saw the BMW cut
back into the number 4 lane, perhaps as close to a foot in front of the car that was in that
lane. The BMW braked because it had a car in front of it: “There was nowhere for him
to go.” The car behind the BMW braked too, and as Watkins testified: “You could see
the forward momentum of the vehicle. He had both hands on the wheel. And came
within inches, as far as I could tell, of the black BMW, still at a high rate of speed. And
the vehicle behind the black BMW turned his wheel while braking and went into a
sideways slide. . . . It folded around a light pole. . . . There was dust. I just remember
seeing the vehicle just collapse around the light pole.”
       Burl Hall also witnessed the collision. He was driving on Highway 80 and it
appeared as if the black car (he did not know the make of the car) entered the freeway
from the Central Avenue onramp. The black car was traveling at a speed higher than 60
m.p.h., and cut very closely in front of a smaller car. Hall watched the smaller car swerve
to avoid hitting the black car. The smaller car avoided the black car but spun out of
control and smashed into a light pole, driver’s side first. The light pole was just after the
Central Avenue onramp.



                                              3
       The smaller car was a green Acura Integra. Herrick Hernandez was a passenger in
the Acura, and the driver was one of his best friends, 21-year-old Genesis Polo. They
were traveling to either Walnut Creek or the Sun Valley Mall in Concord, and Polo’s
friend Anhthu Huynh and two of her friends were in the car behind Polo and Hernandez.
Huynh testified they were traveling at a little over 65 m.p.h. when a black BMW with
tinted windows cut in front of her from the left without use of a turn signal. The BMW
came very close to the front of Huynh’s car and the back of Polo’s and proceeded to pass
Polo on the right hand shoulder of the highway before cutting back into the number 4
lane, right in front of Polo. The driver of the BMW did not use his turn signal when he
cut in front of Polo, and Huynh saw Polo hit his brakes. According to Huynh, Polo
immediately “swerved all the way to the right into the pole.” Hernandez recalled that as
he and Polo approached the Central Avenue merge point on Highway 80 a black BMW
7-Series vehicle sped past them on the right hand shoulder of the highway. Hernandez
was paying attention to his cell phone at that time but recalled the BMW eventually re-
entered the highway, in front of the Acura, and that Hernandez felt the Acura “jerk to the
left,” as if Polo was trying to avoid a collision. The Acura then began to slide, and
ultimately crashed into a light pole, with the driver’s side of the Acura hitting the pole
first. The BMW did not stop when the Acura collided with the pole.
       Watkins followed the BMW after the Acura collided into the pole. He got close
enough to see the BMW’s license plate, and using a marker he had in his vehicle, wrote it
down on his dash as he drove. He also unsuccessfully attempted to take a photo of the
BMW with his cell phone camera. Watkins also called 9-1-1 while still on Highway 80.
Watkins told the operator about the “ugly” scene he had witnessed, and said the “black
BMW” had caused the accident that left the other car “folded in half.” Watkins gave the
operator the BMW’s license plate number as 4WJK348. Referring to the 4 “[i]n the end
[in 348],” he told the operator, “I'm not 100% positive on the 4. But I’m 90% sure.” The
BMW eventually left Highway 80 at the Potrero exit, and Watkins told the 9-1-1 operator
that too. The BMW made an illegal lane change to take that exit.



                                              4
        Hall also followed the black car as it changed lanes numerous times. Hall never
got closer than three car lengths away. He was able to write down only the following
regarding the black car’s license plate number: 4WK. Meanwhile, back at the crash
scene, Hernandez could not get out of the Acura and some Good Samaritans were trying
unsuccessfully to open the passenger’s side door. Hernandez had a broken hand and pain
in his left shoulder. Polo was on top of Hernandez and was neither awake nor moving.
Eventually law enforcement and medical authorities arrived at the scene and after
Hernandez was removed from the car, he was transported to a hospital by helicopter.
Unfortunately, Polo was dead. He had numerous external and internal injuries and died
as a result of blunt force trauma.
        A few days after the incident, California Highway Patrol (CHP) Officer Roberto
Barrera was provided the license plate number 4WJK348, and using the Department of
Motor Vehicles (DMV) database, attempted to learn the registered owner of the vehicle
with that plate number. Barrera ran 12 to 15 variations of the 4WJK348 number through
the data base, and ultimately learned that appellant was the registered owner of a BMW
with the license plate number 4WKJ348. The registered owner of the vehicle
4WJK348—the number Watkins had provided the operator—lived in Southern California
and his car was a silver Honda. CHP Officer John Zatezalo traveled to appellant’s
residence in Point Richmond and left his business card on the front door. Appellant
contacted Zatezalo and they arranged to meet at the Oakland CHP Offices on May 14,
2010.
        Appellant came to the meeting in a black BMW 7-Series four door sedan.
Zatezalo asked appellant about March 24, 2010, and appellant said he had worked at the
Eden Medical Center in Castro Valley that day. He said he was a plumbing contractor
and normally finished work at 3:30 p.m. Appellant said that given the time he normally
finished work, it would have been hard for him to have been at the stretch of Highway 80
where the accident occurred at the time it happened, 3:50 p.m. The distance from the
Eden Medical Center to the location of the Polo fatality was approximately 22 miles.
Appellant repeatedly said he was unaware of any accident occurring on Highway 80 at


                                            5
Central Avenue, and that he had not contributed to any accident or hit or collided with
another car. Zatezalo told appellant that witnesses placed his car at the scene at the time
of the crash, and appellant replied that “if his vehicle was there, then he was driving it.”
According to Zatezalo, appellant “stated that based upon the information I gave him, that
if his vehicle was there, it was 100 percent positive that he was driving the
vehicle at that time and that location, of the day.” Appellant “stated that he does not
allow anyone to drive his vehicle.”
       The plumbing foreman at Eden Medical Center testified that appellant worked at
the Eden Medical Center on March 24, 2010, from 7:00 a.m. to 3:20 p.m. The Eden
Medical Center was about a mile and a half from Highway 580, which connects with
Highway 80.
                                      The Prior Offenses
       On December 5, 2004, Oakland Police Officer Andrew Trenev was monitoring
traffic leaving the Oakland Alameda County Coliseum after a Raiders football game and
at around 4:45 p.m. made a traffic stop of appellant. During the course of that traffic stop
Trenev formally arrested appellant for reckless driving and impounded his vehicle.
Appellant was later charged and convicted as a result of this incident.
       On July 4, 2009, at shortly after 2:00 a.m. Albany Police Officer Chris Beck
conducted a traffic stop of appellant. Appellant was driving a black BMW 7-Series sedan
with the license plate number 4WKJ348. During the course of this traffic stop Beck
conducted a custodial arrest of appellant for reckless driving.
       On August 29, 2009, approximately 12:55 a.m., Albany Police Officer William
Boehm conducted a traffic stop of appellant. During the course of this traffic stop Boehm
formally arrested appellant for reckless driving and impounded his black BMW, license
plate number 4WKJ348.
                                         DISCUSSION
                                           Appeal
       Appellant contends the trial court erred in allowing evidence of his two prior
arrests and one prior conviction for reckless driving to come into evidence. We disagree.


                                              6
         With exceptions, Evidence Code section 1101, subdivision (a), provides that
“evidence of a person’s character or a trait of his or her character (whether in the form of
an opinion, evidence of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.” Evidence Code section 1101, subdivision (b), provides that evidence of an act
committed by a person is admissible when it is relevant to prove knowledge and is not
used to show his general disposition.
         We review the trial court’s ruling permitting admission of prior acts under
Evidence Code section 1101, subdivision (b), pursuant to the abuse of discretion
standard. (People v. Ortiz (2003) 109 Cal.App.4th 104, 117.) A trial court’s exercise of
discretion “must not be disturbed on appeal except on a showing that the court exercised
its discretion in an arbitrary, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice. [Citations.]” (People v. Jordan (1986) 42 Cal.3d
308, 316.)
         In People v. Ochoa (1993) 6 Cal.4th 1199, 1204–1205, the defendant was charged
with gross vehicular manslaughter while intoxicated, and the trial court allowed the
admission of evidence at trial that the defendant had suffered a prior conviction for
driving under the influence and had attended an alcohol awareness class. The California
Supreme Court held the trial court did not abuse its discretion in admitting the evidence.
(Id. at p. 1206.) The court stated: “In determining whether a reasonable person in
defendant’s position would have been aware of the risks, the jury should be given
relevant facts as to what defendant knew, including his actual awareness of those
risks. . . . [F]or if the evidence showed that the defendant actually appreciated the risks
involved in a given enterprise, and nonetheless proceeded with it, a finding of gross
negligence (as opposed to simple negligence) would be appropriate whether or not a
reasonable person in defendant’s position would have recognized the risk.” (Id. at
p. 1205.) The Supreme Court stated that “the evidence at issue here was relevant to
defendant’s awareness of the risk, and was admissible on that basis.” (Id. at pp. 1205–
1206.)


                                              7
       In People v. Ortiz, supra, 109 Cal.App.4th 104, 109, the defendant caused a
vehicular homicide that resulted in a jury convicting him of second degree murder. The
evidence established that defendant had driven at excessive speeds and crossed a double
yellow line to pass other vehicles. (Id. at pp. 106–107.) At one point, he crossed the
double yellow line and collided head on with a car, killing two others. (Ibid.) The
prosecution and defense stipulated the defendant was not intoxicated at the time of the
collision, but the trial court admitted evidence of the defendant’s prior drunk driving
conviction over defense counsel’s relevancy and Evidence Code section 352 objections.
(Id. at pp. 111–112.)
       The Court of Appeal affirmed the trial court’s ruling admitting the prior
convictions evidence, holding the evidence was probative to the question of intent, i.e.,
the subjective knowledge necessary for implied malice. (People v. Ortiz, supra,
109 Cal.App.4th at pp. 114–115.) Noting that evidence of prior instances of reckless
driving on the question of intent are regularly admitted, the court stated, “A jury is
entitled to infer that regardless of the mental state or condition that accompanies an
instance of reckless driving—whether intoxication, rage, or wilful irresponsibility—the
driver’s subsequent apprehension and prosecution for that conduct must impart a
knowledge and understanding of the personal and social consequences of such behavior.”
(Id. at p. 115.)
       Here, the trial court ruled it would allow the prosecution to present evidence of
appellant’s prior acts of reckless driving “for purposes of showing prior knowledge and
awareness of the risks and dangers of reckless driving.” The court stated, “I am going to
allow the People to use that. I do find that the information contained in the arrests and
the penalty that he suffered by being arrested and having the car impounded does give
him a substantial knowledge as to the risk of that charge. And the charge was indicated
as reckless driving. He was convicted of one and arrested for the other two. [¶] Thus, I
will allow the People to present evidence of those three circumstances in their case in
chief, . . .” At the end of the case, the court instructed the jury: “During the trial, certain
evidence was admitted for a limited purpose. You may consider that evidence only for


                                               8
that purpose and for no other. During the trial, evidence of Mr. Williams’ prior arrests
was admitted for a limited purpose. You may consider evidence of Mr. Williams’ 2005
conviction for reckless driving for the limited purpose of determining if the elements of
the offense alleged in Count 3, reckless driving with prior conviction, have been proven.
You may also consider the 2004 arrest and resulting 2005 conviction of reckless driving
and the two 2009 arrests for reckless driving in deciding whether the People have proven
that Mr. Williams was aware of the risk that reckless driving poses to others. Do not
consider these arrests or the conviction for any other purpose. You may not use the prior
arrests to establish that Mr. Williams drove recklessly in this case. You also may not use
the prior arrest or conviction to establish that Mr. Williams has the propensity to drive
recklessly.”
       We find no abuse of discretion. The prosecution had the burden of proving as to
the vehicular manslaughter with gross negligence charge that appellant, among other
things, was aware, or should have been aware, that the way in which he drove on
March 24, 2010, “could create a high risk of death or great bodily injury.” At issue in
this case, therefore, was whether appellant was aware of the high risk of death or great
bodily injury he created by the way he drove that day. His prior acts, which led to two
arrests and one conviction for reckless driving, were probative on that issue.
       Appellant attempts to distinguish Ochoa and Ortiz by saying that in those cases,
the defendants’ prior acts had probative value because they resulted in convictions, and
because the defendants in those cases had attended “educational program[s] designed to
impress upon [them] the dangers of driving [under the influence].” He asserts his
conviction for reckless driving had no relevance to the issue of knowledge because he
had not caused an accident or injury, and he had not attended an educational program that
would have taught him about the dangers of driving recklessly. As for his arrests, he
argues that it “simply makes no sense at all” that an arrest or acquittal on a reckless
driving charge would lead him to better understand the risk that his driving “could create
a high risk of death or great bodily injury.” He states, “People are stopped and cited by



                                              9
the police every day,” and that “[w]hat one learns from getting such a ticket is that you’ll
have to pay a fine.”
       We disagree. First, as to his conviction, it was reasonable for the trial court to
determine that a person convicted of reckless driving, with or without an accompanying
accident or injury or mandatory class time, would have a heightened understanding that
the act of driving recklessly constitutes a criminal offense because of the risks it creates.
(See People v. Ortiz, supra, 109 Ca1.App.4th at p. 115 [a jury is “entitled to infer that
regardless of the mental state or condition that accompanies an instance of reckless
driving—the driver’s subsequent apprehension and prosecution for that conduct must
impart a knowledge and understanding of the personal and social consequences of such
behavior”].) Second, as to the arrests, no court has required that only prior reckless
driving accompanied by a conviction is admissible on the question of whether the
defendant drove in the charged case with awareness of the risks of reckless driving.
Citations or arrests that flow from reckless driving “do not take place in a vacuum.”
(Id. at pp. 112–113.) Here, appellant was arrested twice for reckless driving in 2009 after
having already been convicted of it in 2005. On both 2009 occasions his car was
impounded. Based on these facts, the trial court could reasonably determine the arrests
were relevant on the question of whether, during appellant’s alleged criminal driving in
2010, he had the knowledge that reckless driving created a high risk of death or great
bodily injury. At best, appellant’s argument shows that reasonable minds may differ on
the question of whether arrests for reckless driving, without more, gives the arrestee
knowledge that if he drives the same way in the future, that conduct would create a high
risk of death or great bodily injury. Where, as here, “the question on appeal is whether
the trial court has abused its discretion, the showing is insufficient if it presents facts
which merely afford an opportunity for a difference of opinion. An appellate tribunal is
not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart
(1985) 171 Cal.App.3d 59, 65.)
       Appellant next asserts that even if his prior conduct was relevant to show
knowledge, the evidence should not have been admitted because it was more prejudicial


                                               10
than probative under Evidence Code section 352. Evidence Code section 352 provides in
relevant part that trial courts, in their discretion, “may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice.”
       We find no reason to disturb the trial court’s determination that the admission of
the prior acts evidence was not unduly prejudicial. “The ‘prejudice’ referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against defendant as an individual and which has very little effect on the
issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ”
(People v. Yu (1983) 143 Cal.App.3d 358, 377.) Here, the prejudicial impact of
appellant’s prior acts was less inflammatory than his conduct during the charged
offenses. (See People v. Ewoldt (1994) 7 Cal.4th 380 [potential for prejudice decreased
as jury’s passions were not likely inflamed by evidence of the defendant's less serious
uncharged conduct].) The fact that the jury was presented with evidence that appellant
was convicted of only one of the three prior acts also lessened the prejudicial impact of
those acts. Further, the trial court properly admonished the jury regarding the limited
purpose for which the prior acts were introduced, thereby eliminating the chance a jury
would punish appellant simply because he had committed the prior acts. The trial court
did not exceed the bounds of reason in allowing the prosecution to introduce evidence of
appellant’s prior acts.2




       2
        Appellant also argues that “[e]vidence of prior bad acts . . . should properly be
viewed under standards governing constitutional due process violations” because an
“ ‘abuse of discretion’ ” standard[] is too lenient.” We reject the argument. (See, e.g.,
People v. Carter (2005) 36 Cal.4th 1114, 1147 [a trial court’s Evidence Code
section 1101, subdivision (b), ruling is reviewed for abuse of discretion].) Appellant has
not cited any authority that would lead us to conclude that evidentiary rulings regarding
prior bad acts should be reviewed under a stricter standard.


                                              11
                                           Petition
       Appellant contends his trial counsel was ineffective because she failed to
investigate and pursue a misidentification defense and made only an ineffectual effort in
trying to keep out evidence of his prior arrests.
       A criminal defendant is entitled to representation sufficiently competent under
professional norms so as not to deny the defendant a proceeding with a reliable result.
(Strickland v. Washington (1984) 466 U.S. 668, 687–696.) A finding of ineffective
assistance of counsel is warranted only if the defendant establishes: (1) performance by
counsel was deficient under the objective standards of reasonable attorney performance;
and (2) prejudice. (Ibid.) In evaluating allegations of deficiency, our scrutiny of the
challenged actions or omissions of counsel is highly deferential. (Id. at p. 689.) This
means we must indulge in a strong presumption that counsel’s conduct fell “within the
wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” (Ibid.) “A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” (Ibid.)
       “Prejudice” from unreasonable performance by counsel occurs only where “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.” (Strickland v. Washington, supra,
466 U.S. at p. 694.) Where, as here, a claim of trial counsel ineffectiveness is made via
petition for writ of habeas corpus, each party may go outside the appellate record and
give trial counsel an opportunity to discuss the charge of ineffectiveness. (Ibid.) The
petitioner “bears a heavy burden” to both initially plead and later prove sufficient
grounds for habeas relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) Vague or
conclusory factual and legal assertions are insufficient to merit relief. (Ibid.)



                                              12
       Appellant first contends that his trial counsel failed to adequately investigate the
case. Specifically, he faults counsel for not investigating whether his 2002 BMW “had
been misidentified as the ‘black car’ responsible for the accident based on coincidental
similarities to the plate numbers reported by witnesses despite his protestations of
innocence and request for investigation.” Appellant acknowledges the CHP officer ran
about 12 to 15 variations of the number 4WJK348 in determining that appellant was the
registered owner of a BMW with the license plate number 4WKJ348. He states,
however, that counsel should have requested a search of the entire DMV database to
identify the names and addresses of all owners of all 7-Series BMWs with license plates
starting with either 4WJ and 4WK. He cites to various statistical evidence and asserts
that such a search could have revealed there were “at least 70 BMW 7-Series sedans
which were issued California license plates starting with either 4WJ or 4WK.”
       We conclude that even if counsel performed deficiently in not requesting such a
search, appellant’s claim fails because he did not show he was prejudiced by the deficient
performance. As noted, witness Jeremy Watkins saw a black BMW with tinted windows
driving erratically on Highway 80. He wrote down the car’s license plate as 4WJK348,
and another witness was able to catch the first three symbols, 4WK. Appellant’s place of
employment was only 22 miles away from the scene of the accident and five minutes
from Highway 580, which connects with Highway 80. There was testimony that
appellant left work that day in time to place him at the scene at the time of the accident.
Appellant told an officer that if his car was at the scene, he was “100 percent positive that
he was driving the vehicle at that time and that location of the day.” Appellant also told
the officer that he did not let others drive his car. In light of the fact that the description
of the car that the two witnesses provided—including the car’s license plate number—so
closely matched that of appellant’s car, and that there was other ample evidence placing
appellant at the scene, there was no reasonable probability the jury would have had a
reasonable doubt regarding appellant’s identification even if it had been presented with
the above statistical evidence.



                                               13
       We also reject appellant’s assertion that counsel’s performance was deficient
because she made an ineffectual effort in trying to keep out evidence of his prior arrests.
Appellant faults counsel for failing to file a written opposition and says counsel was
“unprepared to address that issue” at the hearing on the motion. The record shows,
however, that counsel argued against the admission of the prior acts of reckless driving
on the grounds that the authorities upon which the prosecution was relying were
distinguishable, that the proffered evidence was more prejudicial than probative under
Evidence Code section 352, and that two of the prior acts of reckless driving by appellant
did not even end in conviction. We do not believe that her statements at the hearing
provide any support for appellant’s position that her performance was deficient.
       Appellant also faults counsel for failing to inform the jury—once the prior acts
evidence was admitted—that one of the acts ended in a jury acquittal of the charge, and
that the other act did not go to trial because the charge was dropped. Counsel, however,
argued to the jury that “the fact that [appellant] was arrested and his car was impounded
has very little value in terms of establishing that he knew there was an extreme risk posed
to other people.” (Italics added.) Even assuming that counsel was ineffective in failing
to specifically state that appellant was acquitted of one of the charges, we would
conclude that appellant cannot show prejudice, i.e., that there was a reasonable
probability the jury would have found a lack of knowledge on the part of appellant
regarding the dangers of reckless driving had it been specifically told that two of the prior
acts did not result in a conviction. Appellant has failed to establish that he was provided
with ineffective assistance of counsel.
                                          DISPOSITION
       The judgment is affirmed.




                                              14
                                 _________________________
                                 McGuiness, P.J.


We concur:


_________________________
Jenkins, J.


_________________________
Pollak, J.




                            15
