Filed 8/7/15 P. v. Campos CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061387

v.                                                                       (Super.Ct.No. SWF1102822)

MANUEL GILBERT CAMPOS,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,

Judge. Affirmed.

         Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V.

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
          A jury convicted defendant and appellant, Manuel Gilbert Campos, of assault with
                                                                                      1
a deadly weapon or instrument other than a firearm (Pen. Code, § 245, subd. (a)(1),

count 1), and the trial court sentenced him, after enhancements, to 35 years to life in state
          2
prison.

          Defendant appeals his conviction on the grounds that the prosecution failed to

present substantial evidence that: (i) anyone used a deadly weapon in the assault; (ii) it

was defendant, rather than a second attacker, who used such a weapon; and (iii)

defendant knew of the weapon’s existence and had the requisite intent for purposes of

finding he aided or abetted the second attacker.

          In addition, defendant contends his conviction should be overturned on the ground

that his attorney denied him effective assistance by informing the jury that the other

attacker had pled guilty to assault with a deadly weapon.

          For the reasons post, we affirm the judgment.

                                               I

                                FACTUAL BACKGROUND

          On August 26, 2011, defendant and a second inmate engaged in an altercation

with a third inmate in a common area of the Southwest Detention Center in Riverside. A

deputy sheriff who witnessed the altercation described the events to the jury. The deputy

          1     All further unlabeled statutory references are to the Penal Code.
          2    The clerk of the Riverside County Superior Court erroneously indicated in
the abstract that defendant was convicted by the court rather than a jury.

                                               2
also described the events as captured by two surveillance cameras while the prosecution

showed the video recordings to the jury.

       The altercation began when deputies remotely unlocked the doors to a tier of cells,

allowing the inmates to enter a common area. Defendant emerged from cell No. 24 and a

second inmate emerged from the adjacent cell No. 22. Both moved immediately to the

left and entered cell No. 10, where the victim was housed. Within seconds, all three

inmates burst out of cell No. 10. Defendant and the second inmate pursued the victim,

striking him repeatedly. The victim withdrew into the center of the common room and

the two other inmates briefly stopped attacking him.

       According to the testifying deputy, he did not observe the initial skirmish, but

began watching the three inmates after they were in the common room. Most of the

subsequent fighting occurred in a blind spot of the surveillance cameras. However, the

deputy witnessed the fighting from an unobstructed position in a raised observation

station about 15 to 20 feet away. The deputy testified that the second attacker faced the

victim and was “fighting like you would normally expect someone to fight in a boxing

stance,” throwing “overhead punches” at the victim’s face and upper torso. The deputy

saw defendant striking at the victim too, but testified he “wasn’t in a normal boxing

stance.” Instead, “he was picking his spots,” “kind of hitting like in a stabbing or

slashing-type motion” by swinging his right fist “from the side from [his] hip” and “up

towards the shoulder.” On redirect examination, the deputy recognized on viewing the

video that when defendant came out of the victim’s cell after the first skirmish, he threw

an “overhead punch,” but insisted that thereafter defendant’s punches “were different

                                             3
because he was pulling his hand . . . in a sideways motion from his hip.” The deputy

testified that he did not observe any weapons, but that it appeared from “the way he was

holding his hand that [defendant] was holding something.”

       The deputy testified that he used the intercom to tell the inmates to stop fighting

and “lock it down.” Defendant and the second attacker broke off the fight, walked

through the common room, and reconvened in front of the door to cell No. 6. The deputy

testified initially that “it looks like they grab something out of cell 6.” Later, he testified

while viewing the surveillance video that only the second attacker was near cell No. 6 at

the time. He later testified that it did not appear to him that either inmate had taken

anything from the cell.

       After a momentary pause, defendant and the second attacker approached the

victim again, backed him up to a position in front of the same sliding door, and resumed

fighting. The second attacker resumed “punching [the victim] again in that boxing

stance” using “overhead punches . . . with both hands.” Defendant also resumed fighting,

according to the deputy, by “continu[ing] to make that jabbing motion.” Though he

testified defendant held his hand in a fist and appeared to be holding something, the

deputy admitted he did not see anything in defendant’s hand. In describing defendant’s

motion on cross-examination, the deputy testified, “I have seen many, many fights,

ma’am. And I have never seen anything like that. The only time I have seen it was

consistent in the shankings and different things like that that I have seen.”




                                               4
                                                                 3
       All together, the fighting lasted just over one minute. The deputy testified that the

victim defended himself throughout. The video shows vigorous fighting on the part of all

three inmates. The deputy described the victim as having been hit “a lot.”

       When additional deputies arrived, defendant and the second attacker left the victim

again. They first walked toward the left side of the common room, where a group of

other inmates had congregated, and then took up positions outside the doors to their cells

on the right side of the common room. The surveillance video shows that defendant’s

cellmate opened the door to cell No. 24, defendant reached toward the door, and the

cellmate closed the door again. The deputy testified that the inmates complied with an

order to lie on their stomachs. The deputy testified, and the surveillance video confirms,

that defendant then took off his orange overshirt and stuffed it under the door of his cell.

It appeared that defendant’s cellmate pulled the shirt inside.

       Once the deputies had secured the room and inmates, they examined the victim.

He had suffered several injuries, the worst of which were cuts on his right cheek and his

left shoulder blade. The deputy described “very clean . . . smooth cut[s]” whose “edges

were smooth” and “not jagged.” The deputy testified that the cut to the victim’s cheek

was not “very deep . . . just enough to make it bleed.” He described the cut to the

victim’s back as being “like a deep paper cut.” Photographs taken at the time and shown

to the jury are consistent with his description. The deputy testified that, in his experience,


       3      The video recordings of the altercation include a timer, which shows the
three skirmishes occurred between 7:04:08 p.m. and 7:04:19 p.m., 7:04:53 p.m. and
7:05:11 p.m., and 7:05:47 p.m. and 7:06:16 p.m.

                                              5
the victim’s cuts were consistent with cuts suffered by slashing victims and cuts caused

by sharp instruments in prison fights. A second deputy testified that injuries suffered in

the approximately one dozen prison shanking incidents he has seen are “[u]sually . . . a

slice wound or a real sharp cut. Occasionally it’s a—a stab or like a puncture.”

       At trial, the parties stipulated that the victim spoke to the deputy on August 26,

2011, after the attack, and stipulated to the content of his statement. The victim said he

did not know why the attack happened and could not think of a reason the two inmates

would attack him. The victim also told the deputy that he did not see what the two

inmates “attacked him with.” At trial, the victim appeared under duress and testified he

did not know defendant, did not remember an altercation with defendant and the second

attacker, and that he had suffered the injuries shown in the photographs in two separate

falls in a prison shower in 2005.

       The deputies also examined and searched defendant, the second attacker, and the

common room area. They did not find anything that could have been used as a weapon

on the inmates’ persons. There was blood on the second attacker’s shirt and hands and he

had cuts on his hand. There were abrasions but no cuts on defendant’s hands, and there

was no blood on his undershirt, pants, or hands.

       An investigating deputy found an altered toothbrush, a handle broken off a plastic

spoon, and some droplets of blood on the floor of the common room near where the

fighting took place. The prosecution introduced photographs of these instruments

through the testimony of the investigating deputy, but did not introduce the instruments

themselves. The toothbrush appears to have been burned on the brush end and broken

                                             6
and burned on the grip end. The piece of plastic spoon is about one-inch long (the length

of three lines of ruled paper as depicted in the photograph) and has no black marks that

would indicate burning. The investigating deputy testified that the instruments did not

have blood on them.

       The deputy testified that both instruments could be made into shanks and inmates

commonly use them for that purpose. He testified that “normally you have something

sharp on the edges of . . . both of these.” The toothbrush the deputy found does not

appear to have sharp edges, and the deputy testified it is not a working shank in the state

in which it was found. He testified that to make a toothbrush into a weapon inmates “will

melt [the toothbrush] and they will melt a razor blade into the . . . end.” He testified that

a spoon handle can be made into a shank by “melt[ing] or sharpen[ing] [it] into a point

. . . or they can insert the razor blade into the end to hold the razor blade.” The deputy

testified that he searched the whole common area, but did not find a razor blade or any

other sharp or metal object that could have been used to turn the instruments into

functioning shanks. He also testified that he conducted a search of the other inmates in

their cells, but did not find any razor blades or sharp objects.

       Both defendant and the second attacker were charged with using a deadly weapon

to assault the victim. The second attacker pled guilty, but defendant went to trial to

contest the charge. Defendant contended at trial that (i) no deadly weapon was used in

the fight, (ii) the second attacker, not defendant, used a deadly weapon, and (iii)

defendant did not know the second attacker used or planned to use a deadly weapon.



                                              7
       At a hearing the day before trial began, defendant’s counsel requested that the trial

court take judicial notice and inform the jury that the second attacker had pled guilty to

the charge of assault with a deadly weapon. His counsel explained: “It is our position

that it’s the codefendant who assaulted with a deadly weapon, and my client didn’t have

knowledge that he intended to do that, or in fact knowledge that he was using a weapon.”

The trial court raised the objection that doing so was contrary to the standard jury

instruction against jurors considering whether anyone else involved in a crime had been

or would be prosecuted. Defendant’s attorney responded that “the relevance is that the

codefendant has already pled guilty to the assault with a deadly weapon. He didn’t plead

guilty to assault with force likely. He didn’t plead guilty to simple assault. And I think it

is entirely relevant as to whether or not my client used a weapon or not.”

       The court again questioned the relevance of the plea, and asked whether the

second attacker would be testifying. Defendant’s attorney said she did not plan to call

him as a witness. The court then asked for the prosecution’s position. The prosecution

responded that it agreed with the court, understood the defense counsel’s position, but

had mixed feelings. When the court expressed its inclination to disallow the request,

defendant’s attorney objected stating, “When I discussed this matter with [the

prosecutor], I asked her if she was going to object. It was one of the reasons that I—and

she said no. It was one of the reasons I answered ready for trial and opted not to bring

the codefendant down, otherwise I would certainly put him on the stand.” The prosecutor

indicated that she had “mixed feelings,” but did not object, and the court indicated it

would take notice of the guilty plea and inform the jury.

                                              8
        Later at the hearing, the prosecution moved to dismiss a second count against

defendant alleging assault to commit mayhem under section 220. The prosecution

explained that “I will actually state for the record that I have made a tactical decision not

to bring the codefendant down. The filing of the 220 would have changed that

decision . . . .”

        After the final witness had been called, defense counsel “ask[ed] the Court to take

judicial notice of the conviction of [the second attacker].” The trial court instructed the

jury as follows: “Ladies and gentlemen, the Court is going to take judicial notice of the

following: [The second attacker] was accused of and charged with a violation of Penal

Code Section 245, Subdivision (a), Subsection (1), the same charge that’s pending here

against [defendant], in that on or about August 26th, 2011, in the County of Riverside,

State of California, he did willfully and unlawfully commit an assault upon [the victim]

with a deadly weapon other than a firearm. [¶] This accusation and charge arose from

the same incident the defendant . . . is currently accused and charged with. [¶] And on

January 4, 2012, [the second attacker] entered a plea of guilty to this charge. [¶] Now,

when a Court takes judicial notice of something, what basically I am saying is I reviewed

my own records here, and by my own records, I mean the Court records, the official

records. And these records show that indeed what I just read to you occurred. So you

can—the same thing, you are to accept that as a proven fact without any additional

testimony.”

        At closing, both the defense and the prosecution relied on the plea to argue that a

deadly weapon was used in the assault. Defendant’s attorney argued: “What you have,

                                              9
in fact, though, is [the second attacker’s] admission. He pled guilty to the charges, not

guilty to a simple assault. There is no evidence that he pled guilty as an aider and abettor.

He pled guilty to the assault of [the victim] with a deadly weapon.” She also argued that

“[t]here is no evidence that my client knew, in fact, that [the second attacker] had a

weapon” though “we know that he did . . . because he has already pled guilty to it.” The

prosecution agreed, arguing that “[t]his is assault with a deadly weapon. And we know

that based on [the second attacker’s] plea.”

       However, defendant’s attorney also contended that there was no shank. She

argued that the victim “wasn’t shanked” and there was no evidence anyone had a shank

or sharp object that could have been used to make a shank out of the instruments found at

the scene. She also contended “no one came in and told you that those specific weapons

were such of nature [sic] that they have the capability of causing great bodily injury or

death” and no one testified that if one of the inmates “had slit [the victim’s] throat with a

blunt toothbrush, or piece of spoon, that in fact that’s going to cause any sort of injury,

other than the scratches [that] you saw.” She did not attempt to explain how the

conclusion that there was no shank fit with her concession that the second attacker had

used one. Nor did she attempt to harmonize those positions by explicitly arguing them in

the alternative.

       The prosecution urged the jury to use its common sense and discount the defense

counsel’s arguments as inconsistent. She argued “they move from that to, ‘Okay,

[defendant] is guilty, but he is guilty of a simple misdemeanor assault. But nobody had a

shank’ . . . ‘It wasn’t a shank.’ Then they go with, ‘Okay. There was a shank, but [the

                                               10
second attacker], he is the one who had it. See, he pled guilty to assault with a deadly

weapon.”’ She argued that “[t]he fact that [the second attacker] pled guilty to assault

with a deadly weapon only proves that [the victim] was, in fact, assaulted with a deadly

weapon.” Finally, she contended that the second attacker could have pled guilty as an

aider and abettor if defendant was the perpetrator and that defendant should be found

guilty as an aider and abettor even if the jury concluded the second attacker was the

perpetrator.

       During deliberations, the jury asked the court, “Have the items found on the floor

. . . been ID’d as deadly weapons or is that up for question?” The trial court responded,

“[t]hat is a question only you folks can answer” and referred the jury to the definition of a

deadly or dangerous weapon in the jury instructions. The relevant instruction explains,

“A deadly weapon other than a firearm is any object, instrument, or weapon that is

inherently deadly or one that is used in such a way that it is capable of causing and likely

to cause death or great bodily injury.”

       The jury returned a verdict finding defendant guilty of assault with a deadly

weapon.

                                             II

                                          ANALYSIS

       1. Sufficiency of the Evidence of Assault With a Deadly Weapon

       Defendant argues his conviction should be reversed because the prosecution

presented insufficient evidence to sustain a finding that he committed an assault with a




                                             11
                                                                                4
deadly weapon and the trial court erred in denying his section 1118.1 motion. He

contends there was insufficient evidence that a deadly weapon was used in the assault as

well as that he was culpable for the use of any such weapon.

       On a challenge to the sufficiency of evidence supporting a conviction or to support

the denial of a section 1118.1 motion, we ‘“examine the whole record in the light most

favorable to the judgment to determine whether it discloses substantial evidence—

evidence that is reasonable, credible and of solid value—such that a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We

presume in support of the judgment the existence of every fact the trier could reasonably

deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases

in which the prosecution relies primarily on circumstantial evidence . . . .” (People v.

Houston (2012) 54 Cal.4th 1186, 1215; accord, People v. Hajek and Vo (2014) 58 Cal.4th

1144, 1182-1183 (Hajek and Vo).) “‘If the circumstances reasonably justify the trier of

fact’s findings, the opinion of the reviewing court that the circumstances might also be

reasonably reconciled with a contrary finding does not warrant a reversal of the

judgment.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 668 (Holt).) This

standard is high, requiring an appellate court to “accept logical inferences that the jury




       4      The People point out defendant brought his section 1118.1 motion for
judgment of acquittal after the trial court had submitted the case to the jury, which makes
it untimely. (§ 1118.1, subd. (a)(1).) This irregularity does not change our analysis
because the error was harmless.

                                             12
might have drawn from the evidence even if the court would have concluded otherwise.”

(People v. Combs (2004) 34 Cal.4th 821, 849.)

              a. Use of a deadly weapon

       Defendant argues there was no substantial evidence that either defendant or the

second attacker used a deadly weapon in the assault. He points out the deputy who

observed the altercation admitted he did not see a weapon during the attack, deputies did

not find a weapon on defendant or the second attacker after the attack, and the only items

located near the scene were portions of a plastic toothbrush and a plastic spoon.

Defendant argues the evidence shows these items could not be used as shanks without

alteration and that deputies did not find a razor blade or other sharp object that could have

turned them into shanks. He concludes “the record does not contain sufficient, solid,

credible evidence that [the victim] was assaulted with a deadly weapon.” We disagree.

       For purposes of the section 245, subdivision (a)(1) proscription against

“commit[ing] an assault upon the person of another with a deadly weapon or instrument,”

a deadly weapon is any “object, instrument, or weapon which is used in such a manner as
                                                                                  5
to be capable of producing and likely to produce, death or great bodily injury.” (People



       5      The People point out section 245, subdivision (a)(1) proscribed assaults
carried out by “any means of force likely to produce great bodily injury” in addition to
those carried out “with a deadly weapon.” That provision is not in issue here, however,
because the complaint, the information, and the jury instructions focused exclusively on
whether the assault was committed with a deadly weapon. We note that effective January
1, 2012, the proscription against assaults carried out “by any means of force likely to
produce great bodily injury” has been moved from subdivision (a)(1) to its own
subdivision, (a)(4). (Stats. 2011, ch. 183, § 1.)

                                             13
v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) Objects such as the altered

toothbrush and spoon handle found at the scene of this assault are “not deadly per se,” but

“may be used, under certain circumstances, in a manner likely to produce death or great

bodily injury.” (Id. at p. 1029.) The jury was charged with deciding, among other things,

whether defendant or the second attacker used these instruments in a sufficiently

dangerous manner. (See, e.g., People v. Cook (1940) 15 Cal.2d 507, 516 [holding a piece

of a two-by-four was a deadly weapon when used to strike the victim over the head];

People v. Helms (1966) 242 Cal.App.2d 476, 486-487 [holding a pillow was a deadly

weapon when used in an attempt to smother the victim]; People v. Russell (1943) 59

Cal.App.2d 660, 664-665 [holding a fingernail file was a deadly weapon when used to

strike the victim in the face].) In making that determination, the jury was free to

“consider the nature of the object, the manner in which it is used, and all other facts

relevant to the issue.” (Aguilar, supra, at pp. 1028-1029.)

       The prosecution presented sufficient evidence for the jury to conclude that the

altered toothbrush and spoon handle could be used to make deadly weapons. The jury

heard the testimony of the deputy who investigated the scene of the assault after the

inmates had been removed. The deputy described finding blood on the floor near “a

piece of toothbrush that [he] believed to be a weapon.” He also found a spoon handle in

the same area. The deputy explained that it is common for inmates to make weapons out

of prison-provided plastic spoons and toothbrushes by melting the plastic and then

melting a blade or other sharp object into the plastic. The toothbrush had been altered by

melting.

                                             14
       Neither instrument was attached to a blade or other sharp object when the deputy

found the instruments, and he did not find any sharp objects in his subsequent search.

However, the jury had sufficient evidence to infer that defendant was using a weapon

during the fight and acted to conceal a blade afterward. The deputy who observed the

altercation witnessed most of the fight through a window in an observation post about 15

to 20 feet away. He testified that defendant “was picking his spots,” striking at the victim

with a “stabbing or slashing-type motion.” The deputy also testified that it appeared from

“the way he was holding his hand that [defendant] was holding something.” He also

testified, “I have seen many, many fights,” but had “never seen anything like”

defendant’s motion except “in the shankings and different things like that that I have

seen.” The surveillance video of the fight is inconclusive because the recordings have

poor resolution and most of the fighting took place in a blind spot of the surveillance

cameras. Those portions of the video recordings that do show the fight appear to be

consistent with the testimony of the deputy who observed the altercation. The jury could

reasonably credit that testimony and conclude defendant used some object to strike at the

victim.

       In addition, the nature of the victim’s injuries are consistent with his being cut by a

blade or other sharp object attached to either the toothbrush or spoon handle found at the

scene. The deputy who observed the altercation testified, and photographs presented to

the jury confirm, that the victim suffered two long, smooth cuts. That deputy testified

that, in his experience, the victim’s cuts were consistent with cuts suffered by slashing

victims in prison fights. The deputy who investigated the scene after the fight testified

                                             15
that injuries suffered in the prison shank incidents that he has seen are “[u]sually . . . a

slice wound or a real sharp cut.” The jury could reasonably conclude from the injuries

that one of the inmates had some object with a sharp edge to strike at the victim.

       Finally, the jury had sufficient evidence that one of the inmates disposed of a razor

blade or other sharp object. The surveillance video shows that after the fighting, both

inmates moved into a crowd of other inmates before proceeding to their own cells. Once

defendant reached his cell, his cellmate opened the cell door, and defendant reached

toward the door with one hand. The deputy testified and the video recording clearly

shows that defendant then removed his outer shirt and stuffed it under the door to his cell.

The deputy testified, and the video recording corroborates, that defendant’s cellmate

pulled the shirt under the crack of the door and into the cell. It was reasonable for the

jury to conclude that the inmates sought to conceal evidence. Taken together with the

evidence of defendant’s manner in the attack, the nature of the injuries, and the fact that

the toothbrush found on the scene had been melted in a way indicating to experienced

deputies that it had been altered to be used as a shank, the jury could reasonably conclude

that one of the two inmates took one of those opportunities to conceal a razor blade or

other sharp object. Thus, this evidence provides a substantial basis for the jury to find

that a deadly weapon was used in the assault.

       Defendant objects that the victim’s injuries were “not commensurate with being

attacked and struck repeatedly with a shank or deadly weapon.” It is true that the

testimony and photographic evidence reveal that the victim suffered shallow cuts rather

than puncture wounds or deep gashes. As defense counsel argued in her closing

                                              16
argument to the jury, those injuries could have been caused by the sharp edge of an

instrument such as the broken plastic spoon the deputies found at the scene. But they

could also have been caused by a sharper instrument like a razor blade. One deputy

testified that injuries suffered by shank victims were, in his experience, “[u]sually . . . a

slice wound or a real sharp cut” and only “[o]ccasionally . . . a stab or like a puncture.”

The jury may reasonably have concluded that one of the attackers possessed and used a

fully functional shank. Though we might reach a different conclusion, we are not

permitted to substitute our own judgment for the judgment of the jury. (People v. Banks

(2014) 59 Cal.4th 1113, 1156.)

              b. Defendant’s culpability

       Defendant contends there was no substantial evidence that he “was the one with

the deadly weapon.” We disagree.

       The evidence recounted ante provides an adequate basis for the jury to conclude

that defendant himself used a deadly weapon in the assault. Much of the evidence points

directly to defendant as the perpetrator. The witnessing deputy testified that the

defendant attacked the victim by employing “slashing” and “jabbing motions” and that he

appeared to be holding something in his hand. According to the deputy, the other

attacker did not fight in the same fashion. Instead, he punched the victim from a boxer’s

stance. Moreover, it was defendant, not the second attacker who appeared to hand

something to his cellmate and then remove his shirt and stuff it under his cell door.

Those actions gave the jury reason to infer that defendant was trying to avoid being

caught with the missing blade.

                                              17
       Defendant argues the victim’s “injuries to his shoulder and cheek are not

consistent with the upward and sideways swinging punches” which, according to the

deputy, characterized defendant’s fighting. He argues that, if he had possessed a weapon,

the victim would have “substantial penetrating injuries in his lower torso . . . not

superficial cuts to his face or his upper shoulder,” and concludes that “no reasonable juror

could find that [defendant] inflicted the cuts to [the victim] with a shank.” We disagree.

As the deputy testified and the video evidence shows, the three men fought vigorously,

the fight was fluid, and the victim actively defended himself. We must interpret the

evidence in the light most favorable to the judgment, which includes presuming “the

existence of every fact the trier could reasonably deduce from the evidence.” (Hajek and

Vo, supra, 58 Cal.4th at p.1183.) A reasonable jury could conclude that the victim’s

injuries were consistent with the free-wheeling fight described by the deputy and depicted

in the surveillance video.

       In view of the fact that the jury’s verdict is supported by substantial evidence that

defendant used a shank to attack the victim, we need not consider whether there was also

substantial evidence that he aided and abetted the second attacker in doing so.

       2. Effective assistance of counsel

       Defendant contends his attorney provided inadequate representation by convincing

the court to take judicial notice and inform the jury that the person with whom he

committed the attack had already pled guilty to assault with a deadly weapon. He argues

that this decision was constitutionally defective because it effectively withdrew his



                                             18
strongest factual defense—that the attack was a simple assault because there was no

deadly weapon—without providing any conceivable benefit. We disagree.

       The Sixth Amendment to the United States Constitution and article 1, section 15

of the California Constitution entitle criminal defendants to competent representation.

(Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland); People v. Lucas (1995)

12 Cal.4th 415, 436.) The right to effective assistance of counsel “is meant to assure

fairness in the adversary criminal process.” (United States v. Morrison (1981) 449 U.S.

361, 364.) A defendant can expect his counsel to make rational and informed decisions

on strategy and tactics that are grounded on adequate investigation and preparation. (In

re Hall (1981) 30 Cal.3d 408, 426; People v. Frierson (1979) 25 Cal.3d 142, 166.) For

defendant to prevail on his claim that he has been denied effective assistance, he must

establish: “(1) that counsel’s representation fell below an objective standard of

reasonableness; and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, a determination more favorable to defendant would have resulted.

[Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; accord, Holt, supra, 15

Cal.4th at p. 703.)

              a. Deficient performance of counsel

       In evaluating a claim of deficient performance, we give great deference to

counsel’s tactical decisions. (People v. Frye (1998) 18 Cal.4th 894, 979.) We evaluate

trial counsel’s decisionmaking in the context of the available facts, and generally do not

find tactical errors at trial to be cause for reversing a judgment. (People v. Farnam

(2002) 28 Cal.4th 107, 148.)

                                             19
         We hesitate to find ineffective assistance on direct appeal because often the record

is not developed enough to evaluate the attorney’s conduct. (People v. Pope (1979) 23

Cal.3d 412, 426 [“Where the record does not illuminate the basis for the challenged acts

or omissions, a claim of ineffective assistance is more appropriately made in a petition

for habeas corpus”].) Resources would be wasted if appellate courts reversed judgments

for ineffective assistance, only to have “new defense counsel on retrial . . . do exactly

what the original counsel did” based on some “informed tactical choice” not apparent in

the appellate record. (Id. at pp. 425-426.) On direct appeal, we will “reverse convictions

on the ground of inadequate counsel only if the record on appeal affirmatively discloses

that counsel had no rational tactical purpose for his act or omission.” (People v. Zapien

(1993) 4 Cal.4th 929, 980 (Zapien) [quoting People v. Fosselman (1983) 33 Cal.3d 572,

581].)

         The precedents are clear that attorneys may reasonably adopt trial tactics even if

they entail making damaging admissions. In Farnam, the California Supreme Court held

it was not ineffective assistance for defense counsel to admit at the guilt phase of a capital

murder trial that defendant had a prior murder conviction. (Farnam, supra, 28 Cal.4th at

pp. 148-150.) Trial counsel made that choice, despite the substantial risk of prejudice,

because he reasonably feared jurors would react negatively toward defendant if they

learned about the prior conviction for the first time during a later phase of the trial. (Id.)

Similarly, in People v. Welch, the high court held it was not ineffective assistance for

counsel to abjure an actual innocence defense in favor of the defense that the murder was

not premeditated where the evidence of guilt was overwhelming. (People v. Welch

                                              20
(1999) 20 Cal.4th 701, 728 (Welch).) Thus, trial counsel does not perform deficiently if

there is a rational purpose that supports the challenged trial tactic, even if that choice

involves making a damaging admission.

       In this case, the defense counsel introduced the second attacker’s guilty plea to

support the conclusion that defendant did not wield the shank if the jury decided, despite

counsel’s arguments to the contrary, that someone did use a shank in the attack.

Introducing the second attacker’s guilty plea supported that conclusion by providing a

basis for the jury to find the second attacker was the perpetrator. Before the jury learned

of the guilty plea, there was no direct evidence the second attacker had wielded a weapon

and the deputy who witnessed the attack testified that defendant, not the second attacker,

fought as if he was using a weapon.6 Introducing the guilty plea to the jury at least made

plausible what otherwise would have been speculative. This change in the state of the

evidence was important because defendant’s contention that he did not know there was a

weapon was consistent with other evidence about the fight. The deputy who observed the

fight testified that he did not see a weapon, and the victim told deputies immediately after

the fight that he did not see what the other inmates had used to attack him. The second




       6         Defendant contends there was evidence the second attacker had picked up a
weapon from someone in cell No. 6 before the final skirmish. The witnessing deputy testified
that “it looks like they grab something out of cell 6” and on cross-examination admits only the
second attacker was near cell No. 6. But the deputy later testified while viewing the surveillance
video that it did not appear either inmate had picked anything up from cell No. 6. Even if that
testimony and the video recording provided some support for finding the second attacker had a
weapon, introducing the guilty plea lent support to a conclusion that otherwise had little support
in the evidence elicited at trial.


                                               21
attacker’s guilty plea therefore gave the jury a way to conclude that defendant was guilty

of nothing more than simple assault.

       In addition, defense counsel did not make much of a concession by introducing the

guilty plea. Though circumstantial, the evidence that someone had used a shank in the

attack was strong. The jury saw pictures of the victim’s long, smooth cuts and heard

testimony from experienced deputies that such injuries were consistent with injuries

suffered by victims of shank attacks. Defense counsel could reasonably have feared that

evidence was so powerful the jury would react negatively to defendant if he simply

denied its import. On that basis, she may have concluded the jury would be more likely

to credit defendant’s denial that he used or knew about a shank if he acknowledged the

evidence tended to show someone had used one. We conclude defense counsel could

reasonably have concluded that introducing the guilty plea of the second attacker offered

her client the best chance of a conviction for the lesser included misdemeanor offense of

simple assault. Though defense counsel’s tactic evidently did not succeed, it is exactly

the kind of tactical trial decision we are hesitant to label deficient, especially on direct

appeal. (Zapien, supra, 4 Cal.4th at p. 980.)

       Defendant argues his trial attorney’s decision was deficient because it did not

show the second attacker wielded the weapon and introducing the guilty plea therefore

“served no effective purpose other than to inform the jury that [the second attacker]

pleaded guilty to assaulting [the victim] with a deadly weapon.” We acknowledge that

trial counsel said she believed the guilty plea tended to show it was the second attacker

and not her client who used a shank. And we agree, strictly speaking, that view is

                                              22
mistaken. Both men could be guilty of assault with a deadly weapon if one used a deadly

weapon and the other aided him, as the trial court explained to the jury. The jury heard

no evidence to indicate that the second attacker pled guilty specifically as the perpetrator

and not as an accomplice. Thus, the guilty plea did not tend to show that the second

attacker was the perpetrator. However, as we held above, we do not agree there was no

conceivable benefit to making the concession. Defense counsel may have introduced the

guilty plea because, in her judgment, the evidence that someone used a shank in the fight

was significant and the jury was more likely to believe defendant did not know of the

weapon if he acknowledged the import of that evidence. We cannot say the trial tactic

could not serve the defendant’s interests.

       Defendant also argues his trial attorney’s decision to admit the second attacker’s

guilty plea was deficient because it “provid[ed] support for a contested element of the

prosecution’s case.” As discussed above, the acknowledgement of the existence of a

deadly weapon was not much of a concession because of the strength of the

circumstantial evidence that someone had used a deadly weapon. Furthermore, the

California Supreme Court decision in Welch establishes that an attorney may decide for

tactical reasons to forgo a defense entirely. (Welch, supra, 20 Cal.4th at p. 728.) We

believe it follows that an attorney may, as happened in this case, decide to pursue one

defense theory in a way that does damage to another defense theory. Defendant relies on

People v. Moreno (1987) 188 Cal.App.3d 1179, 1190-1191 for the contrary position, but

the lesson of that case is far narrower. In Moreno, the defendant was charged with

driving while intoxicated, but disputed that he was the driver of the vehicle. (Id.)

                                             23
Defense counsel failed to object when the prosecution introduced hearsay testimony that

defendant was the driver, evidence that was a prerequisite for the prosecution introducing

defendant’s extrajudicial confession. (Id.) The Moreno court held that allowing the

evidence to enter the trial was deficient because it was inadmissible, it enabled the

prosecution to introduce defendant’s confession, and the court could “conceive of no

tactical reason whatsoever which might have dictated trial counsel’s decision not to

object.” (Id. at p. 1191.) Thus Moreno stands for the narrower proposition that defense

counsel performs deficiently by allowing improper evidence that tends to prove an

element of the charge where the admission of the evidence does not provide any benefit

to the defendant. For reasons we have explained above, defense counsel’s decision in

this case does not violate that principle.

              b. Prejudice

       We have already held that, without considering the guilty plea, a jury could

reasonably have found beyond a reasonable doubt that defendant used a deadly weapon

to commit the assault. We must now decide whether there is a reasonable probability that

without that evidence the jury would have had a reasonable doubt that defendant was

guilty. (See Strickland, supra, 446 U.S. at p. 695.)

       “Given this court’s limited role on appeal, defendant [bore] an enormous burden in

claiming there was insufficient evidence to sustain his conviction . . . .” (People v.

Sanchez (2003) 113 Cal.App.4th 325, 330 [Fourth Dist., Div. Two].) Defendant’s burden

in challenging a conviction based on ineffective assistance of counsel is not so heavy.

Defendant “need not show that counsel’s deficient conduct more likely than not altered

                                             24
the outcome in the case.” (Strickland, supra, 466 U.S. at p. 693.) “Rather, the defendant

must establish a reasonable probability that, but for counsel’s errors, the result would

have been more favorable to the defendant.” (In re Wilson (1992) 3 Cal.4th 945, 956; see

Ledesma, supra, 43 Cal.3d at pp. 217-218.) A reasonable probability is simply a

probability sufficient to undermine confidence in the outcome. (Strickland, supra, at p.

693.) We find no reason to disturb the jury’s verdict.

       Though the evidence that defendant used a functional shank in the assault is

circumstantial, it is strong. First, deputies found pieces of a toothbrush and plastic spoon

handle at the scene of the fight near droplets of blood. One deputy testified inmates often

use such implements to fashion shanks by melting them and embedding a razor blade or

other sharp object in the plastic. The deputy testified that his first reaction was that the

toothbrush, which was melted on both ends, “was fashioned into a weapon.” Second, the

deputy who observed the fight testified defendant appeared to be holding something in

his hand during the attack and struck at the victim by jabbing and slashing. He also

testified he had seen fighting methods like those defendant used only in other shank

attacks. Third, though deputies were not able to locate a razor blade or other sharp object

of a sort that would have been embedded in the toothbrush, other circumstantial evidence

suggests defendant concealed that evidence. When deputies broke up the fight, both

defendant and the second attacker withdrew into a crowd of other inmates before taking

up positions in front of their own cells. Once defendant was at his cell, his cellmate

opened the door, and defendant reached one hand back toward the door. After the

cellmate closed the door, defendant removed his outer shirt and stuffed it under his cell

                                              25
door. All of these actions imply that defendant was attempting to conceal evidence.

Finally, a deputy testified that the victim’s injuries were consistent with injuries he had

witnessed in other inmate fights involving sharp instruments. Nearly everything about

the incident implies that defendant used a shank in the attack. Only the razor blade or

other sharp object is missing. We do not believe that there is a reasonable probability

that the jury would have failed to convict defendant of assault with a deadly weapon if it

had entered deliberations with this evidence alone and without knowledge of the second

attacker’s guilty plea.

       Defendant points out that “the jury asked whether the toothbrush and spoon handle

had been identified as deadly weapons,” and argues that we know from its query that it

was “the most significant issue raised by the evidence.” Defendant also argues that the

jury’s question indicates the jury “understood the significance of [the second attacker’s]

guilty plea” and “that at least one juror was not convinced that the prosecution had met its

burden regarding the deadly weapon element, and that at least one other juror believed

the guilty plea answered that issue.” We disagree. We know only that the jury

considered whether the implements found at the scene were used as deadly weapons and

was unsure whether it was a factual question for them to resolve. Anything more is

speculation. It may be that the jury considered whether the guilty plea established that

the instruments found at the scene were deadly weapons. Even if they did, the trial

court’s response more likely led the jurors away from relying on the guilty plea and

toward relying on the other record evidence. It was defendant’s burden to undermine

confidence in the verdict. (Ledesma, supra, 43 Cal.3d at p. 218.) Pointing to an isolated

                                             26
question from the jury does not meet that burden when other record evidence amply

supports it.

                                          III

                                   DISPOSITION

       We affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                            RAMIREZ
                                                                                    P. J.

We concur:


MILLER
                         J.


CODRINGTON
                         J.




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