Filed 10/8/14 P. v. McCartney CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


                   N THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                    A132358
v.
DAMIEN McCARTNEY,                                                   (San Francisco City & County
                                                                    Super. Ct. No. 212299)
         Defendant and Appellant.

In re DAMIEN McCARTNEY,
                                                                    A140809
         on Habeas Corpus.


                                                             I.
                                                INTRODUCTION
         Appellant Damien McCartney was convicted by a jury of two counts of
kidnapping for the purpose of committing rape, oral copulation, and/or sexual penetration
(Pen. Code, § 209, subd. (b)(1))1; two counts of rape by force, violence, or threat of
bodily injury (§ 261, subd. (a)(2)); penetration by a foreign object (§ 289, subd. (a)(1));
and forcible oral copulation (§ 288a, subd. (c)(2)). Various weapon and sentencing
enhancements were also found true, including that he used a deadly weapon in the
commission of the offenses (§ 12022.3, subd. (a)), and that he kidnapped the victim and
substantially increased the risk of harm inherent in the underlying rape offenses
(§ 667.61, subdivision (d)(2)). McCartney was given a total state prison term of 118
years to life.

         1
             All statutory references are to the Penal Code.


                                                             1
        On appeal, McCartney contends: (1) the court erred in denying his motion to
discharge appointed counsel so that he could represent himself under Faretta v.
California (1975) 422 U.S. 806 (Faretta); (2) the court abused its discretion in denying
his request to continue the trial so that his counsel could conduct additional pretrial
investigation; (3) he was denied effective assistance of counsel by his counsel’s multiple
deficiencies, including failing to conduct an adequate pretrial investigation, interview
potential defense witnesses, file meritorious motions, and present certain critical
evidence; and (4) the court abused its discretion in denying his motions for substitute
counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden).
        McCartney has also filed a petition for writ of habeas corpus. Most of the claims
made in McCartney’s petition for writ of habeas corpus relate to and overlap with his
contentions on appeal. Therefore, on our own motion, we order the petition consolidated
with the appeal for purposes of resolution by a single opinion. We reject McCartney’s
contentions on appeal and affirm the judgment. We also deny the petition because
McCartney has failed to make a prima facie case that he is entitled to relief.
                                               II.
                                 STATEMENT OF FACTS
        At approximately 4:30 a.m. on October 4, 2001, Claudia2 left her home on Oliver
Street in the Mission District in San Francisco and walked to the nearest Muni stop to
wait for a bus to take her to work at a laundry. While she was waiting at the bus stop, a
man approached her and grabbed at her hand. She pulled away and tried to run back
home.
        The man grabbed her by her wrists. She screamed for help. He pulled her across
Mission Street as she continued screaming for help. At some point, she dropped her
lunch and purse. He produced a knife and held it to her throat as he continued to drag
her, putting his other arm around her neck in a chokehold. The knife caused Claudia to

        2
         In referring to the sexual assault victim in this case, we will use only her first
name. We do this solely in the interest of protecting her privacy. No disrespect is
intended.


                                              2
fear for her life and to diminish her physical and verbal resistance, believing she would
be killed if she continued to resist.
       He took her inside the front yard of a house on Farragut Street and threw her on
the ground. He then put on a condom and sexually assaulted her, including digital
penetration and forcible rape. He then stood up. She remained on the ground and was
aware police were driving around the area. The man then moved her to the other side of
the car which was parked in the driveway, out of view, and sexually assaulted her again,
including touching her vagina with his tongue. This time he did not use a condom and he
ejaculated into her vagina.
       After he was finished, the man forced Claudia to walk with him toward Alemany
Street and the I-280 freeway. She used the ruse of having to tie her shoelaces to escape
his grasp and was able to run away. She was located shortly thereafter by police officers
responding to a phone tip from a witness who had seen Claudia being kidnapped. The
witness had directed the police to her purse, which she had dropped, containing her
identification. Claudia told the police that she had been sexually assaulted by a Black
man, who was between 20 and 26 years old, six feet tall, and weighing about 200 pounds.
       Claudia was taken to the hospital for a sexual assault examination. The exam
revealed grass, dirt, and semen inside of Claudia’s vagina, as well as significant tearing
of her labia, a two-centimeter abrasion on her labia, tenderness in the pubic area, and
significant bruising on her neck. Various swabs were taken from Claudia’s vagina and
were placed into the rape kit for DNA analysis. Shortly thereafter, Claudia worked with
a sketch artist to create a drawing of the person who had attacked her.
       The identity of the rapist remained a mystery until a DNA “cold hit” in 2006
identified McCartney. Investigators attempted to locate Claudia, but they were unable to
find her until 2009. At that point, an arrest warrant was issued for McCartney, who was
in custody in Santa Clara County for another offense.
       Criminalist Tahnee Nelson, who was employed by the San Francisco Police
Department Crime Laboratory (SFPD Crime Lab), compared a reference sample taken
from McCartney to the DNA of the perpetrator recovered during the sexual assault exam.


                                             3
Nelson testified that the probability that the sperm sample found inside Claudia did not
come from McCartney was “approximately 1 in 22 billion for U.S. Caucasians; 1 in 34
billion for African Americans; 1 in 179 billion for California Hispanics; and 1 in 66
billion for general Asians.”
       Claudia identified McCartney at trial as the man who had kidnapped and raped her
on October 4, 2001. Despite the passage of time, Claudia was certain of her
identification, stating, “If somebody harms you in this way sometimes, you’ll never
forget what they look like,” adding that “his face has never been erased from my mind.”
       The sketch that the artist prepared from Claudia’s description shortly after the
attack bore several similarities to a mug shot taken of McCartney around the same time
for a parole violation. Both faces exhibit a distinctive hairstyle, eyes, lips, chins,
cheekbones, and foreheads.
       The prosecution also introduced evidence of a prior sexual assault committed by
McCartney. (Evid. Code, § 1108.) The jury heard testimony from Crystal3, who testified
that McCartney had raped her in 1998, when she was 16 years old. On February 7, 1998,
around 11:30 p.m., Crystal was waiting for her boyfriend at the Balboa Park BART
station in San Francisco. McCartney approached her, they chatted and smoked
marijuana. Eventually, McCartney persuaded Crystal to come to a motel, located in the
same general vicinity where Claudia was assaulted three years later, so that she could use
the phone to call her boyfriend. Once in the motel room, Crystal attempted to use the
telephone, but it didn’t work. She went downstairs and talked to the manager, but was
informed that the phone was inoperable. She went back upstairs to get her jacket, but
McCartney refused to let her leave.
       McCartney ordered Crystal to take her clothes off. She eventually complied. He
placed her on the bed. Over the course of that night and the next morning, McCartney
raped her several times, ejaculating inside of her each time. The next morning, they left
the motel together. When McCartney went into a McDonalds, Crystal ran to the BART

       3
           Once again, we have used the first name only to protect the victim’s privacy.


                                               4
station, got on a train, and went home. She reported the incident to police later that night.
McCartney was charged and prosecuted for the assault on Crystal and eventually entered
a plea to unlawful sex with a minor. (§ 261.5, subds. (a), (c).)
       After the prosecution presented its case, the defense chose to rest on the state of
the evidence. Defense counsel argued that the prosecution had not met its burden of
proving guilt beyond a reasonable doubt. Specifically, the defense attempted to cast
doubt on the reliability of the DNA evidence and the accuracy of Claudia’s eyewitness
identification. With regard to Crystal’s testimony describing a prior sexual assault in a
hotel room, defense counsel attempted to cast doubt on Crystal’s description of the
pertinent events, emphasizing “the crime for which he was ultimately convicted was a
statutory rape, meaning that it was not one that is inherently violent . . . .”
       The jury convicted McCartney on all counts, and all enhancing allegations were
found to be true. McCartney was sentenced on June 29, 2011. In sentencing McCartney,
the court found he “has engaged in violent conduct that indicates a serious danger to
society. The prior convictions that he has sustained are numerous and are of increasing
seriousness. . . . [He] was on probation or parole when the crime was committed.”
McCartney received a total sentence of 118 years to life in state prison. This appeal and
writ for petition of habeas corpus followed.
                                              III.
                                        DISCUSSION
       1. Denial of Right of Self-Representation
       In a claim made on direct appeal and repeated in his habeas corpus petition,
McCartney contends that he was improperly denied his constitutional right to represent
himself under Faretta, supra, 422 U.S. 806, and that his counsel was ineffective in failing
to assert McCartney’s Faretta rights in a timely fashion.
       By way of background, on September 3, 2010—over eight months after defense
counsel had been appointed to represent McCartney—McCartney first indicated that he
wanted to bring a motion to represent himself at trial under Faretta. However, on



                                               5
January 25, 2011, McCartney withdrew his Faretta motion after he had an opportunity to
discuss the case with defense counsel.
       As McCartney notes in his habeas petition, he had elbow surgery on March 15,
2011, and was unable to attend court on March 18, 2011. On March 25, 2011, the matter
was on calendar for both jury trial and defense counsel’s motion to continue. At the
outset of that hearing, counsel waived McCartney’s appearance and requested and
received a continuance of the pending trial because he had not yet completed all of his
trial preparation.4 The motion was granted and trial was continued to April 22, 2011.
       On April 22, the day set for trial, McCartney once again moved to represent
himself. The trial court expressed skepticism regarding the timeliness of the motion
because McCartney had waited “until the last minute, since it is set to go out to trial this
morning.” The trial court stated that “today the case is on the trial calendar and you have
come forward just today,” and asked “[a]re you ready to go to trial today?” McCartney
responded, “No. No. No. . . . I have a serious operation coming up, so while I’m
rehabilitating I will be able to have a chance to do my work myself.” The trial court
asked, “What do you mean? You are not ready to go to trial today? When are you going
to be ready to go to trial?” McCartney stated that he had “a number of requests” for the
court, and admitted that he was not ready to represent himself at trial—in fact, he told the
court that an upcoming surgery might leave him unable to walk or talk for an extended
period of time.
       The trial court noted that defense counsel had not filed a motion to continue that
morning and thus was ready to go to trial, a point with which defense counsel agreed.
The trial court told McCartney, “You are asking the Court to delay the trial until after that

       4
          McCartney insinuates that defense counsel could not waive his appearance at
this hearing held to continue the trial. However, the California Supreme Court has held:
“ ‘[T]he accused is not entitled to be personally present during proceedings which bear no
reasonable, substantial relation to his opportunity to defend the charges against him, and
the burden is upon him to demonstrate that his absence prejudiced his case or denied him
a fair and impartial trial. [Citation.]’ [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48,
74.)


                                              6
and after you have undergone rehabilitation and recovery. And then potentially after that,
based upon what happens during the surgery, you are unable to speak, so if you represent
yourself you can’t be sent out for trial. Is that kind of what you are saying?” McCartney
said that he would need time to prepare, and admitted that the surgery had not even been
scheduled yet.
       Highlighting the numerous Marsden and Faretta motions that McCartney had
filed, the trial court ruled that the request on the day of trial was untimely under People v.
Windham (1977) 19 Cal.3d 121 (Windham). Windham holds that the reasonable time
requirement is intended to prevent a defendant from unjustly delaying the trial or
obstructing the orderly administration of justice. (Id. at p. 128, fn. 5.) The trial court
noted that the case had already been continued to allow defense counsel to prepare an
adequate defense, and that defense counsel was ready for trial while McCartney would
“not be ready for trial for a substantial period of time.” The trial court also cited People
v. Watkins (1992) 6 Cal.App.4th 595, 600 (Watkins) for the proposition that McCartney’s
inability to speak after his surgery and communicate with the judge and jury was another
valid reason to be concerned about the delay caused by his self-representation. Finally,
the trial court ruled that defense counsel’s representation had not “been inadequate in any
respect.” The trial court denied McCartney’s Faretta motion finding that the “reason for
the lateness of the request by [McCartney] is specifically to delay the trial, delay the
proceedings in an effort to frustrate the sending of the case out to trial.”
       The legal principles governing the granting or denying a Faretta motion are well
settled. A trial court must grant a defendant’s request for self-representation if the
defendant is mentally competent and if such request is made knowingly, intelligently,
unequivocally and in a timely manner. (People v. Stanley (2006) 39 Cal.4th 913, 931-
932.) Erroneous denial of a timely unequivocal Faretta request is reversible per se.
(People v. Butler (2009) 47 Cal.4th 814, 824.) In ruling upon the motion, the trial court
should consider the quality of counsel’s representation, the defendant’s prior efforts to
substitute counsel, the reasons for the request, the length and stage of the proceedings,



                                               7
and the disruption or delay reasonably likely to result from granting the motion. (People
v. Mayfield (1997) 14 Cal.4th 668, 810, quoting Windham, supra, 19 Cal.3d at p. 128.)
       There is no fixed time before trial when a Faretta motion is considered untimely.
As our Supreme Court explained in People v. Lynch (2010) 50 Cal.4th 693 (Lynch),
overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 636-643,
“timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but
upon consideration of the totality of the circumstances that exist in the case at the time
the self-representation motion is made.” (Id. at p. 724.) However, it is well established
that when a defendant asserts the right to self-representation on the eve of trial, as
McCartney did in this case, the court has discretion to deny the request. (See, e.g.,
People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made moments before jury
selection was set to begin was untimely and properly denied by the trial court]; People v.
Horton (1995) 11 Cal.4th 1068, 1110 [Faretta motion made on date set for trial was
untimely]; People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta motion made on the
eve of trial was untimely and its denial was within the trial court’s discretion].)
       We conclude the trial court did not abuse its discretion in denying McCartney’s
Faretta motion because it was untimely, having been made on the day set for trial.5
Granting McCartney’s Faretta motion and allowing him to represent himself would have
required a continuance of an undetermined length to allow him to recuperate after
surgery, which McCartney admitted had not even been scheduled. “A trial court may
properly consider the delay inherently caused by such uncertainty in evaluating
timeliness. [Citations.]” (Lynch, supra, 50 Cal.4th at p. 728.) Additionally, when
McCartney made his Faretta motion, this case was almost a decade old, causing the delay
to be more burdensome than it might have been for a newly filed case. McCartney also
indicated his post-surgery condition might render him incapable of speaking, which
       5
         The fact that trial did not actually commence until May 9, 2011, is of no
consequence. We review the denial of a Faretta motion based on the facts and
circumstances known to the court at the time it ruled on the motion and do not consider
unforeseen future events that delayed the start of trial. (People v. Marshall (1997) 15
Cal.4th 1, 24-25, fn. 2.)


                                              8
would deprive him of the communication skills necessary to present a defense to the
charges pending against him, creating even more uncertainty when trial could resume.
(See Watkins, supra, 6 Cal.App.4th at p. 600 [defendant’s speech impediment was so
severe that he could not effectively communicate with the judge and jury, could not abide
by rules of procedure and protocol, and was thus unable to represent himself].) In
addition, the trial court had reason to believe McCartney was making his Faretta motion
in order to obstruct the orderly administration of justice; and given McCartney’s
equivocal response when asked how long it would take him to prepare for trial, that
would have been the inevitable outcome of granting his request for self-representation.
Consequently, given the totality of the circumstances, we conclude the trial court did not
abuse its discretion in denying McCartney’s motion to represent himself.
       In his petition for writ of habeas corpus, McCartney claims his counsel’s “disloyal
and reprehensible actions” thwarted his intention to assert his right to represent himself in
a timely manner several weeks prior to trial. McCartney indicates that several weeks
before trial was scheduled to begin, he informed his counsel that he wished to represent
himself; but instead of informing the court at the March 25 pretrial hearing to continue
the matter for further defense investigation, counsel waived McCartney’s appearance.6
McCartney claims, “Had counsel informed the court, as he was duty bound to, on
March 25, that McCartney wished to represent himself, [McCartney]’s motion for self
representation would have been required to be granted.” (Italics added.) This argument
is completely unsubstantiated because the record reveals exactly what the trial court
would have done if McCartney’s request to represent himself had been made on
March 25, 2011.
       When the trial court denied McCartney’s self-representation request, the court
responded to McCartney’s claim that he was in the courthouse in a holding cell on

       6
         McCartney’s insinuation that defense counsel orchestrated a plot to keep
McCartney out of the courtroom on March 25, 2011, in order to deny him the right to
represent himself finds no support in the record, no matter how carefully the record is
scrutinized.


                                             9
March 25, 2011, the date defense counsel waived his appearance and the court found
good cause to continue the trial. McCartney claimed that if he had been brought to court,
he would have made his Faretta motion earlier. However, the court indicated McCartney
would have been “in the same position” even if he had been brought to court on
March 25, 2011, and had made a request at that time to defend himself. The primary
reason that the trial court denied McCartney’s request to represent himself was that it
would have created indefinite delay and disruption in the proceedings because he had not
even scheduled his upcoming surgery and had no timeline or prognosis for his recovery.
The factors which moved the court to deny McCartney’s Faretta motion on the day of
trial would have been equally applicable if McCartney’s motion for permission to
represent himself had been made on March 25, 2011, and the trial court indicated it
would have reached the same result.
       A court may deny a Faretta motion made weeks before trial, coupled with a
request for a continuance, which would have the effect of creating substantial delay in
“[a] case that had endured significant delay [and] was finally nearing resolution.”7
(Lynch, supra, 50 Cal.4th at p. 727.) Consequently, even assuming arguendo that defense
counsel should have brought McCartney’s intention to represent himself to the court’s
attention on March 25, 2011, McCartney cannot demonstrate a reasonable probability
that, but for the error, the result would have been different.




       7
          In Lynch, the court considered a Faretta motion filed two weeks before pretrial
motions were to begin and trial was set to begin “about three weeks after that.” (Lynch,
supra, 50 Cal.4th at p. 727.) The case involved multiple counts and special circumstance
allegations, requiring an estimated 65 prosecution witnesses, some elderly. (Ibid.) The
case was nearly four years old; and, although the court found the delay “cannot be
attributed to [the] defendant, he did not thereby escape any responsibility for timely
invoking his right to self-representation.” (Ibid.) The defendant “would have required an
undetermined amount of time to investigate and prepare for trial.” (Id. at p. 728.) In
light of all of these circumstances, our Supreme Court affirmed the trial court’s denial of
the defendant’s Faretta motion as untimely in “[a] case that had endured significant delay
[and] was finally nearing resolution.” (Id. at p. 727.)


                                              10
       2. Ineffective Assistance of Counsel—General Principles
       On appeal, McCartney principally argues defense counsel’s numerous errors and
omissions deprived him of effective representation of counsel and a fair trial. A
defendant seeking reversal for ineffective assistance of counsel must prove both deficient
performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218
(Ledesma ); Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “ ‘The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ”
(Ledesma, supra, at pp. 217-218.) A court deciding an ineffective assistance claim does
not need to address the elements in order, or even to address both elements if the
defendant makes an insufficient showing on one. (Strickland, supra, at p. 697.) “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” (Ibid.)
       As our Supreme Court recently held in People v. Mai (2013) 57 Cal.4th 986, “On
direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective assistance are
more appropriately resolved in a habeas corpus proceeding. [Citations.]” (Id. at
p. 1009.)
       McCartney has also filed a petition for a writ of habeas corpus, which we have
ordered consolidated with his appeal, in which he repeats many of the assertions made on
appeal and during his numerous Marsden motions. “An appellate court receiving [a
petition for a writ of habeas corpus] evaluates it by asking whether, assuming the
petition’s factual allegations are true, the petitioner would be entitled to relief.
[Citations.] If no prima facie case for relief is stated, the court will summarily deny the
petition. If, however, the court finds the factual allegations, taken as true, establish a
prima facie case for relief, the court will issue an OSC [order to show cause].
[Citations.]” (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) Pursuant to our request,


                                               11
respondent has filed an informal response to assist us in our determination of whether a
prima facie case has been stated. (See Cal. Rules of Court, rule 8.385(b); People v.
Romero (1994) 8 Cal.4th 728, 737.) (Order, Jan. 24, 2014, Rivera, Acting P. J.)
        In order to state a prima facie case of ineffective assistance of counsel, a defendant
must plead with particularity facts, and provide reasonably available documentary
evidence, that if true, show “ ‘both (1) that counsel’s performance was deficient, i.e., that
the representation fell below an objective standard of reasonableness, and (2) that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result would
have been more favorable to defendant, i.e., a probability sufficient to undermine
confidence in the outcome. [Citations.]’ [Citations.]” (In re Scott (2003) 29 Cal.4th 783,
811.)
        McCartney’s criticism is largely directed to trial counsel’s investigation and
tactical choices.8 “[T]he range of constitutionally adequate assistance is broad, and a
court must accord presumptive deference to counsel’s choices about how to allocate
available time and resources in his or her client’s behalf. [Citation.] Counsel may make
reasonable and informed decisions about how far to pursue particular lines of
investigation. Strategic choices based upon reasonable investigation are not incompetent
simply because the investigation was less than exhaustive. [Citation.]” (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1252, superseded by statute on another ground as stated
in In re Steele (2004) 32 Cal.4th 682, 691; In re Andrews (2002) 28 Cal.4th 1234, 1254
[“valid strategic choices are possible even without extensive investigative efforts”].)
        In other words, different counsel may choose to conduct investigations in different
ways, and it is for counsel, not this court, to decide how to obtain the information needed
to prepare adequately for trial. (See In re Hall (1981) 30 Cal.3d 408, 425 [declining to
criticize counsel for electing to forego use of trained investigator]; People v. Bolin
        8
         We have not been provided with a declaration of defense counsel which would
give us the reasons for the numerous tactical decisions challenged by McCartney in this
appeal and in his petition for writ of habeas corpus. However, we do have the transcripts
of the numerous Marsden motions brought by McCartney which provide useful insight
into counsel’s decision making in preparing and defending McCartney at trial.


                                              12
(1998)18 Cal.4th 297, 334 (Bolin) [declining to criticize counsel for lack of attack in
cross-examining the prosecution’s expert witnesses and the failure to call defense
experts].) “What matters is the substance of the investigation––whether counsel in fact
explored those avenues reasonable counsel would have pursued in light of what was
known and in light of the chosen defense strategy.” (In re Thomas (2006) 37 Cal.4th
1249, 1264.)
       3. DNA Testing
       In petitioning for habeas corpus, McCartney argues his counsel should have
mounted a much more aggressive defense in refuting the DNA evidence introduced
against him at trial. McCartney contends that if counsel had conducted further
investigation and submitted additional evidence, he could have proven “the calculations
regarding the DNA were substantially flawed.”
       McCartney was first identified as the perpetrator of this offense by a “cold hit”
match of crime scene samples with the DNA profiles of 567,403 offenders. At trial,
criminalist Tahnee Nelson testified that she performed a DNA analysis in May 2009
comparing saliva taken from McCartney to the contents of Claudia’s rape kit. This
analysis demonstrated that a vaginal swab collected after the sexual assault contained a
sperm DNA profile which matched McCartney’s.
       However, where DNA evidence is used to help solve a crime, the fact that a match
is found between the defendant’s DNA and that of biological specimens left at the crime
scene is only half the story; the other half is the statistical probability that a similar match
would be found with the DNA of any randomly selected individual. (See People v.
Venegas (1998) 18 Cal.4th 47, 82 [“The evidentiary weight of the match with the suspect
is therefore inversely dependent upon the statistical probability of a similar match with
the profile of a person drawn at random from the relevant population.”].) The pivotal
question has been framed by our high court as follows: “Given that the suspect’s known
sample has satisfied the ‘match criteria,’ [i.e., matches at each allele tested,] what is the
probability that a person chosen at random from the relevant population would likewise



                                              13
have a DNA profile matching that of the evidentiary sample?” (People v. Soto (1999) 21
Cal.4th 512, 523, fn. omitted.)
       At trial, the prosecution presented statistical evidence showing how often the DNA
profile would occur at random among unrelated African-Americans, Hispanics, and
Caucasians. Nelson testified that the probability that the sperm sample taken from the
rape kit did not come from appellant was: “approximately 1 in 22 billion for U.S.
Caucasians, 1 in 34 billion for African Americans; 1 in 179 billion for California
Hispanics; and 1 in 66 billion for general Asians.”
       McCartney claims his defense counsel was constitutionally ineffective in failing to
conduct additional investigation regarding the DNA evidence that would have called
Nelson’s testimony into question. But, as characteristic of McCartney’s arguments on
appeal and in support of habeas corpus, he myopically focuses on what counsel did not
do and ignores what was done.
       In support of his petition for habeas corpus, McCartney has submitted evidence
showing that on June 15, 2010, long before trial, the defense team contacted an
independent lab, Technical Associates, Inc. (TAI), indicating the defense wanted TAI to
review the work done by the SFPD Crime Lab and then, “depending on the results
wanted to discuss . . . whether items of evidence should be retested.”9 After numerous
discussions between TAI and the defense investigator, TAI later received additional
discovery materials “including the sexual assault kit medical report . . . .”
       Based on counsel’s response during a Marsden hearing, the TAI’s initial findings
did not serve to exclude McCartney as a potential contributor. In response to
McCartney’s accusation that defense counsel had not adequately investigated the DNA
evidence, counsel explained, “Unfortunately, the information [that] came back [from
TAI] helps the prosecution and not him. He has rested a tremendous amount of faith on
       9
          In support of McCartney’s petition for habeas corpus, he has submitted the
declaration of Marc Scott Taylor, the “President and Laboratory Director of the forensic
science laboratory of Technical Associates, Inc.” This declaration sets out all of TAI’s
interactions with the defense team in preparation for trial and provides a helpful
chronology of pertinent events.


                                             14
this issue, but, yet, when we send it out for testing, it turns out it hurts him more than
helps him.”
       Representatives of the defense team, including defense counsel, had a telephone
conference with TAI on March 8, 2011, during which TAI stated that further testing and
analysis could be done, such as Y-STR testing “to determine if a second male profile was
present in the vaginal sample . . . .” Defense counsel was given an estimate for the Y-
STR testing. which would have cost approximately $3,600. Furthermore, the police
laboratory compared 9 autosomai loci; and TAI informed defense counsel “there was
substantial additional DNA available that would have allowed testing additional
autosomai loci for a total of 13 to 15 loci” which “would be very likely to reveal if the 9-
locus match to the defendant was simply coincidental or likely to be because he was the
source of the evidence.”
       Defense counsel ultimately did not request further testing be done. Instead,
defense counsel arranged for a forensic DNA analyst from TAI to come to San Francisco
to help him prepare a defense to the DNA evidence and sit in the courtroom during
testimony from the prosecution’s expert. On May 15, 2011, a TAI forensic scientist did,
in fact, travel to San Francisco and spent a day preparing defense counsel for the trial,
and accompanied him to the court the next day.
       Given this record, McCartney has failed to establish a prima facie case that his
trial counsel was ineffective for failing to secure additional DNA testing or that he was
prejudiced in any way by trial counsel’s choices in this regard. Counsel’s strategy to
forego a wholesale attack on the statistical analysis of the DNA evidence and instead
concentrate his time and resources on getting expert assistance so that he could
effectively rebut the DNA evidence at trial, was well “within the permissible range of
competent representation.” (People v. Freeman (1994) 8 Cal.4th 450, 498.)
       As to the prejudice prong of the Strickland inquiry, McCartney offers no evidence
to suggest that additional analysis of the DNA evidence in this case would have




                                              15
exonerated him of these charges.10 Instead, McCartney claims if counsel had been
effective, he would have secured the necessary funding in order to get additional testing
and “Tahnee Nelson could have been cross-examined in a way in which she would have
had to admit the distinct possibility of a coincidental match or admit that the random
probability was not the astronomical 1 in 34 billion that she testified to but rather 1 in
60,000.”
       Based on the overwhelming evidence of McCartney’s guilt in this record, we
conclude he has failed to demonstrate “ ‘a reasonable probability’ ” that even if he had
proven that, in fact, there was a 1 in 60,000 chance his DNA matched the perpetrator’s
“ ‘the result of the proceeding would have been different. . . .’ [Citations.]” (Bolin,
supra, 18 Cal.4th at p. 333.) After all, a 1 in 60,000 probability of matching
characteristics is still infinitesimally small. That fact, combined with Claudia’s 100
percent positive identification of McCartney as the perpetrator, the similarities between
the police sketch based on Claudia’s description and McCartney’s mug shot, and
McCartney’s prior sex offense in the same geographic proximity as Claudia’s kidnapping
and rape, would have provided the jury with more than enough evidence to convict
McCartney of the charged crimes. Thus, McCartney’s ineffectiveness claim related to
the DNA testing fails.
       4. Investigation of McCartney’s 1998 Sex Offense Conviction
       On appeal and in support of his petition for habeas corpus, McCartney claims that
defense counsel was ineffective in failing to investigate the circumstances surrounding
       10
           In this regard, we note that the DNA analyst who testified in this case, Tahnee
Nelson, was involved in a widely publicized mix-up of DNA samples. The defense team
provided TAI media reports involving the incident, along with records from the San
Francisco District Attorney’s Office, and audits done by the accreditation agency and the
Federal Bureau of Investigation. TAI concluded “the specific incident in question does
not appear to impact this case directly . . . .” In response to a Marsden inquiry, defense
counsel indicated, “I have no basis upon which to substantiate” Tahnee Nelson’s testing
in this case was deficient. Defense counsel indicated, “I can’t say it any stronger. If I
had that suspicion, I would have made a motion or I would have made a complaint.”
Therefore, there is nothing in this record to indicate that the SFPD Crime Lab procedures
were systemically flawed or that the testing in this case was unreliable.


                                              16
the prior sexual offense introduced at trial––his 1998 sexual encounter with Crystal at the
Mission Inn which resulted in his plea to unlawful sex with a minor.11 (§ 261.5, subds.
(a), (c).) He claims counsel was ineffective in failing to present defense evidence that
would have “substantially impeached” Crystal’s testimony. Specifically, McCartney
complains defense counsel should have located and called the desk clerk at the hotel, who
purportedly would have testified that during her encounters with Crystal and McCartney
on the evening of the sexual assault, Crystal did not appear to be distraught or in any
danger.
       In support of habeas corpus, McCartney has secured the declaration of the public
defender, now San Francisco Superior Court Judge Bruce Chan, who represented
McCartney when he was charged in the 1998 case. In his declaration, Judge Chan
indicates that during his representation of McCartney he uncovered facts which suggested
the incident between McCartney and Crystal was consensual. He put on a defense
witness at the preliminary hearing, “something that [he] rarely did”––the hotel manager
on duty at the Mission Inn when McCartney and Crystal obtained a room. According to
the hotel manager’s preliminary examination testimony, she observed Crystal when the
couple checked into the hotel, one half-hour later when Crystal came to the desk alone
asking to use the telephone, and when the couple checked out the next morning. At no
time did Crystal appear to be afraid or in any danger. McCartney claims that a competent
attorney would have located this witness, as well as other individuals who provided
information to McCartney’s defense in the 1998 case, and would have had them “ordered
into court” to “provide the testimony that would have substantially impeached Crystal[’s]
testimony” that she was the victim of a violent sexual assault.
       The record belies McCartney’s claim that “trial counsel knew that [McCartney]
had been convicted in 1998 of unlawful intercourse . . . yet [h]e had done nothing to

       11
          The defense filed a written motion opposing the admission of this evidence,
arguing it should be excluded under Evidence Code section 352 because the charged and
uncharged conduct was not similar. The trial court ruled the evidence admissible. This
ruling has not been challenged on appeal.


                                            17
attempt to view the [public defender’s] file or to learn anything about the facts of that
case.” We cannot fault counsel for his failure to secure the public defender’s file, which
contained the results of the public defender’s investigation. As defense counsel
explained at a series of Marsden hearings beginning on May 13, 2011, he spoke to Judge
Chan about the 1998 offense and his investigator ordered the case file from the San
Francisco Public Defender’s Office. He later spoke to Judge Chan again, who told
defense counsel how to expedite his request for the file. Nonetheless, despite his
investigator’s “numerous attempts and requests,” he was unable to secure a copy of the
file. In fact, a supervisor at the public defender’s office informed the investigator that the
case file had been lost or destroyed—a fact independently confirmed by the trial court
when it “requested the assistance of a senior administrator in that office” in locating the
file. Apparently, Judge Chan was later able to secure the case file. But this does not
prove that defense counsel’s efforts to obtain a copy before the trial were inadequate.
       McCartney boldly declares that if he had been represented by competent counsel,
rebuttal evidence would have been presented and “[t]he testimony of Crystal would have
been so substantially diminished, because of her lack of credibility that the jury would
have likely believed that the sexual encounter had been engaged in with consent.”
However, a finding of prejudice from ineffective assistance cannot be premised on
unsupported conclusions about the value of this evidence. (People v. McPeters (1992) 2
Cal.4th 1148, 1177 [a defendant must prove prejudice as a “demonstrable reality,” not
simply speculate what was the effect of counsel’s errors or omissions].)
       It is pure conjecture to conclude that this evidence would have produced anything
that would have caused the jury to reject Crystal’s account of the pertinent events.
Nothing the hotel manager would have offered directly undercuts Crystal’s general
allegations that she voluntarily went to a hotel room with McCartney to call her
boyfriend, but after she returned to the room after attempting to use the telephone at the
front desk, she was threatened and sexually assaulted. In other words, even if there had
been a consensual interaction at some earlier point, Crystal testified that the sexual
relationship was nonconsensual. The hotel manager would not have been able to provide


                                             18
testimony on the pivotal issue of whether consensual or nonconsensual sexual intercourse
had occurred behind closed doors.
       In any event, even if the defense had put on sufficient evidence to convince the
jury that Crystal willingly engaged in sex with McCartney at the Mission Inn in 1998, it
is not reasonably probable that fact alone would have undercut the probative force of the
overwhelming evidence in this case showing that McCartney brutally raped Claudia three
years later. Therefore, McCartney has failed to carry his burden to show defense
counsel’s failure to investigate and obtain the potentially impeaching evidence was
prejudicial within the meaning of Strickland—that is, there is not a reasonable probability
that the outcome would have been more favorable to defendant in the absence of his
counsel’s purported errors and omissions. (Strickland, supra, 466 U.S. at p. 687.)
       In a separate claim of error, we conclude the trial court did not abuse its discretion
in denying defense counsel’s motion for a continuance, which was made on May 9, 2011,
the day set for trial, so that defense counsel could have additional time to investigate the
prior sexual offense involving Crystal. Because defense counsel was provided
identifying information regarding Crystal several weeks before trial, the record does not
show the trial court abused its discretion in denying his request for a continuance. (See,
e.g., People v. Reaves (1974) 42 Cal.App.3d 852, 856 [“a trial court does not abuse its
discretion when it refuses to grant such motion for a continuance which is made on the
very day of trial”]; People v. Keshishian (2008) 162 Cal.App.4th 425, 429 [trial court
properly denied “last-minute” motion to continue].)
       Furthermore, although defense counsel’s requests to continue the trial from its
original May 9, 2011 date was denied, Crystal did not testify until May 13, 2011. Thus, it
does not appear defendant was prejudiced by the trial court’s denial of his request for a
continuance. (See People v. Mendoza (1974) 37 Cal.App.3d 717, 722 [in action for
sexual assault on minor, no abuse of discretion or prejudice in denying continuance
where defendant had four days to prepare for testimony regarding prior similar assault].)




                                             19
       5. Failure to Seek Exclusion of Victim’s Identification
       On direct appeal and in seeking writ relief, McCartney contends that defense
counsel was constitutionally ineffective in failing to seek exclusion of Claudia’s
eyewitness identification testimony because it was the product of an impermissibly
suggestive procedure. He argues, “[c]ounsel, at least from the preliminary examination
onward, knew that the District Attorney and police had told Claudia that the person who
had raped her would be in court at the preliminary examination.” McCartney goes on to
claim that in light of this information, “[r]easonably competent counsel would have
known, at least since the preliminary examination that the initial identification of
petitioner by Claudia . . . was the result of an unconstitutional and improperly suggestive
identification procedure which violated due process and would be subject to
suppression . . . .”12
       Turning first to the prejudice prong of Strickland, McCartney has not shown a
reasonable probability that a motion to suppress would have resulted in the exclusion of
the victim’s identification of him as the perpetrator of these offenses. Had defense
counsel moved to suppress the victim’s eyewitness identification and if the trial court had
ruled that the pretrial identification procedure was unnecessarily suggestive, the burden
would have shifted to the prosecution to establish that the victim’s identification of
defendant had a source independent of, and untainted by, the suggestive pretrial
identification procedure. (See People v. Citrino (1970) 11 Cal.App.3d 778, 783; People
v. Rodriguez (1977) 68 Cal.App.3d 874, 881.) To establish this, the prosecution would
have had to convince the trial court that, despite the unnecessarily suggestive in-court
identification procedure, Claudia’s identification of McCartney as the person who
sexually assaulted her was reliable under the totality of the circumstances. In examining
the totality of the circumstances, the court would have had to take into account such

       12
           We note that at trial, in attempting to raise doubts about the accuracy of
Claudia’s identification, defense counsel brought to the jury’s attention that Claudia was
told that the person who was in the courtroom was the person whose DNA matched the
person who sexually assaulted her.


                                             20
factors as the amount of time that elapsed between the crime and the identification
procedure, her opportunity to view her assailant at the time of the crime, and her degree
of attention, accuracy of prior description, and level of pretrial identification certainty.
(See Neil v. Biggers (1972) 409 U.S. 188, 199-200; People v. Cooks (1983) 141
Cal.App.3d 224, 306.)
       A review of the these factors supports a conclusion that the victim’s identification
of McCartney had an origin that was independent of the unduly suggestive pretrial
identification procedure and therefore would have been admissible, even if a motion to
suppress her identification had been made. First, Claudia had ample opportunity during
the time that McCartney was threatening her and raping her to observe his facial features,
his build, and his clothing. Second, Claudia was not impaired or incapacitated in any
way during the prolonged attack. Third, Claudia provided a very detailed description of
her assailant to police immediately after the rape. Key parts of that description matched
McCartney. Claudia described her attacker as a 20 to 26-year-old Black male;
McCartney was a 27-year-old Black male. Claudia’s eyewitness identification resulted in
a sketch artist making a drawing of the perpetrator. While there are arguable differences
between McCartney’s mug shot taken the next day and the drawing based on Claudia’s
description, the mug shot and sketch share several similarities, including similar haircuts,
eyes, lips, chins, cheekbones, and forehead. Fourth, Claudia expressed the highest
possible degree of certainty in her identification. Upon consideration of these factors, the
mere fact that an impermissibly suggestive in-court identification took place years later
would not have led the trial court to grant a suppression motion.
       McCartney also contends that he received ineffective assistance of counsel when
his counsel failed to present an expert witness on the reliability, or lack thereof, of
eyewitness testimony. He claims reasonably competent counsel would have “call[ed] an
expert who could have assisted the jury, and provided scientific evidence, regarding the
vagaries of eyewitness identification.” We have no evidence in this record regarding trial
counsel’s thought process, if any, on the subject of retaining such an expert for this case.
Furthermore, McCartney does not explain in any detail what significant evidence would


                                              21
have been adduced had such an expert been retained, especially given the fact that
Claudia’s eyewitness identification was independently corroborated by DNA evidence.
(See People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5 [in claiming ineffective assistance
by failing to consult experts, the defendant must “do more than surmise that defense
experts might have provided more favorable testimony”].) Moreover, the jury was
instructed on the factors that could potentially affect the accuracy of Claudia’s
identification. (CALCRIM No. 315.) Under these circumstances, trial counsel could
have reasonably concluded the testimony of an eyewitness expert was not necessary.
       6. Failure to Renew Motion to Dismiss for Delay in Bringing Charges
       McCartney next criticizes defense counsel’s failure to renew his motion to dismiss
the kidnapping and rape charges because of the prosecutorial delay in filing charges. He
claims “there was no justification for the delay in prosecuting [him] from October, 2006,
when the cold hit was made, until [he] was brought to court on December 29, 2009.”
Furthermore, he claims he was prejudiced by the delay because he had no memory of the
critical events and a “percipient witness” died in 2007. He indicates “it is reasonably
probable that a renewed motion to dismiss would have been successful.”
       Before the preliminary hearing, on April 16, 2010, defense counsel filed a motion
seeking dismissal of this case, arguing the charges had been “unreasonably delayed,
violating [McCartney’s] right to due process.” (See generally People v. Cowan (2010) 50
Cal.4th 401, 430 (Cowan).) The motion noted that the crime had occurred on October 4,
2001, and police had waited until November 2009 to arrest McCartney, even though a
DNA cold hit identified him as a suspect around 2006 and his whereabouts were known
to police. The motion to dismiss indicated that as a result in the delay of prosecution
“witnesses or evidence has been lost and memories fade over time.”
       The prosecution filed its opposition on April 30, 2010. The opposition set out the
efforts of both San Francisco Police Department Inspector Brian Delahunty and
Lieutenant Dan Leydon to locate Claudia after the cold hit in 2006. From November
2006 until the end of January 2007, Inspector Delahunty: (1) tried Claudia’s phone
number from 2001 but found it had been disconnected; (2) went to her last known


                                             22
address; (3) went to her previous place of employment and asked her former coworkers
about her whereabouts; (4) performed a Lexis-Nexis search; and (5) contacted Bay Area
Legal Aid, her previous attorneys, and the Mexican consulate. These efforts were
unsuccessful.
       When Delahunty was transferred to another division in November 2008, the case
was assigned to Lieutenant Leydon. Leydon tried all the phone numbers for Claudia’s
family, but the numbers were either wrong or had been disconnected. After contacting
Interpol, Leydon reached out to Claudia’s last known employer, and received a response
from an employee who remembered her. The employee gave Leydon a possible phone
number for Claudia in Mexico, but he was unable to reach her. Eventually, in March and
April 2009, Leydon worked with the Victim Services Unit of the San Francisco District
Attorney’s Office to locate Claudia. Shortly thereafter, Claudia contacted the Victim
Services Unit, and Leydon was able to meet with her.
       When the motion to dismiss was argued on May 4, 2010, defense counsel argued
that his client was prejudiced by the delay by indicating there was a man who saw
Claudia being kidnapped, and who then called 911 and identified the kidnapper as “a
Mexican,” while McCartney is African American. The witness was now deceased. The
trial court denied the motion to dismiss without prejudice, ruling that the loss of the
witness who saw Claudia being kidnapped was not “sufficient to justify the granting of a
[motion to dismiss].”
       When the case was tried, the jury was made aware of the deceased witness’s
description of the attacker. On cross-examination, defense counsel questioned Officer
Rivera about the description given by the man who had witnessed the kidnapping, and he
testified that the witness had described the perpetrator as a Hispanic male about 35 years
old. The jury was also given information from the 911 call reporting a “Hispanic male
dragging a female across Mission Street.”
       We reject McCartney’s argument that competent counsel, bringing a renewed
motion to dismiss, should have been able to show “the prosecution’s claim of Herculean
efforts in locating Claudia was a sham.” His argument that had the police conducted a


                                             23
more diligent investigation, the case against him would have been filed earlier amounts to
merely challenging the police department’s allocation of its investigative resources.
(People v. Abel (2012) 53 Cal.4th 891, 911 (Abel).) “A court may not find negligence by
second-guessing how the state allocates its resources or how law enforcement agencies
could have investigated a given case. . . . Thus, the difficulty in allocating scarce
prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a
valid justification for delay. . . .’ [Citation.]” (People v. Nelson (2008) 43 Cal.4th 1242,
1256-1257; Abel, supra, at p. 911.)
       We also reject McCartney’s claim that in a renewed motion, “[c]ounsel would
have been able to demonstrate prejudice from the delay.” In considering the original
motion, the trial court found the prosecutorial delay was fully justified and outweighed
McCartney’s claim of prejudice from the loss of the witness who saw Claudia being
kidnapped. Moreover, the court took special effort to minimize the prejudice McCartney
suffered from the interim death of the eyewitness. The jury was made aware of his
description of the assailant, which differed from McCartney’s racial and ethnic identity.
It is not our function on appeal to reweigh the evidence and make an independent
determination of prejudice if the trial court’s finding is supported by substantial evidence.
(Cowan, supra, 50 Cal.4th at p. 431.)
       Based upon the court’s denial of the original motion to dismiss, which was legally
sound and factually supported, defense counsel could have reasonably concluded renewal
of the motion to suppress would be futile. (People v. Memro (1995) 11 Cal.4th 786, 834
[defense counsel need not waste the court’s time with futile motions]; People v. Harpool
(1984) 155 Cal.App.3d 877, 886 [counsel is not required to make futile objections or
motions merely to create a record impregnable to assault for claimed inadequacy of
counsel].) Therefore McCartney’s ineffective assistance of counsel claim fails.
       7. Investigation of McCartney’s Mental Health History
       In his petition for writ of habeas corpus, McCartney contends that defense counsel
was constitutionally ineffective for failing to investigate his mental health history.
According to McCartney “it is clear beyond any possible doubt that trial counsel failed to


                                             24
properly investigate [McCartney’s] mental health history, and failed to present readily
available information that would have suggested to the court that [he] was incompetent to
stand trial.”
       According to the defense investigator’s notes, which are before this court as an
exhibit to the petition for writ of habeas corpus, McCartney’s parents told the investigator
in the beginning of 2010 that McCartney had previously received treatment for clinical
depression, had been diagnosed with bipolar disorder, and had been prescribed Lithium,
Wellbutrin, and Hydroxyzine Pamoate. Based on the investigator’s request on
November 9, 2010, the California Department of Corrections and Rehabilitation (CDCR)
sent her McCartney’s medical records, which indicated that he had been discharged from
the military because of Post-Traumatic Stress Disorder (PTSD) and had requested
accommodations during parole revocation hearings.
       On May 5, 2011, the day set for trial, defense counsel declared a doubt as to
McCartney’s competence to stand trial.13 Defense counsel stated that his doubt was
based on “information that has been communicated to me by my client regarding some
interaction he had with a mental health professional while in custody.” McCartney
himself told the trial court that he had delusional thoughts about defense counsel, that he
was having PTSD-like symptoms in jail, and that his symptoms could be treated with
Lithium (a mood stabilizer), Prozac (for depression), and Sinequan Doxepin or Thorazine
(for paranoid thinking). The trial court declined to declare a doubt as to McCartney’s
competence, finding no “basis for me to do so in good faith.” The trial court gave

       13
          Our state statute provides that a person is mentally incompetent to stand trial if,
as a result of mental disorder or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist counsel in the conduct of a
defense in a rational manner. (§ 1367, subd. (a).) We note that McCartney’s argument
that there was reason to doubt his competence to stand trial is manifestly inconsistent
with his assertion that he was competent to waive the assistance of counsel under Faretta.
(See People v. Johnson (2012) 53 Cal.4th 519, 530 [trial courts may deny a self-
representation request when “the defendant suffers from a severe mental illness to the
point where he or she cannot carry out the basic tasks needed to present the defense
without the help of counsel”].)


                                             25
defense counsel leave to pursue additional funding from the designated judge for
psychiatric assistance, but noted that the trial court itself was precluded from doing so by
rules implemented in the wake of the California courts budget crisis. The trial court did,
however, authorize a section 4011.6 mental health evaluation for McCartney.
         McCartney faults defense counsel for not further investigating his mental health
history and for not specifying his prior diagnoses in raising a doubt as to McCartney’s
competence. However, when defense counsel was asked during one of the Marsden
hearings to respond to McCartney’s allegation that he was not pursuing a mental health
defense, counsel indicated there was “no basis for any kind of a mental defense in this
case.”
         In his petition for habeas corpus, McCartney claims defense counsel’s assessment
was wrong and that mental health issues should have been pursued as part of a competent
defense. However, McCartney has failed to provide reasonably available documentary
evidence of psychiatric examinations or evaluations by qualified medical experts in
support of his claim that any reasonably competent counsel would have mounted a
mental health defense to these charges. (People v. Duvall (1995) 9 Cal.4th 464, 474
[speculative claims must be supported with reasonably available documentary evidence];
In re Harris (1993) 5 Cal.4th 813, 827, fn. 5.) He also ignores the contemporaneous
record from the trial where defense counsel raised the issue, but the judge rejected his
claim of mental incompetence. In denying one of the many Marsden motions brought by
McCartney, the judge was openly skeptical of McCartney’s claimed incompetence. The
court observed McCartney has “been logical, continuous, reasonable and articulate. And
his personal performance before the Court dispels any assertion of incompetence by him
at any time during the trial.” Accordingly, his claim can be summarily denied for failure
to state a prima facie case for habeas relief.
         8. Investigation of McCartney’s Alibi
         During a Marsden hearing held on May 13, 2011, McCartney complained that the
defense team had failed to develop an alibi for his whereabouts during the crime. He
claimed his former girlfriend would testify that he was with her, in their shared


                                                 26
apartment, at the time the incident took place at 4:30 a.m. on October 4, 2001. He also
claimed his mother would testify that he attended a birthday dinner for her the prior
evening in San Francisco.
       The record does not support McCartney’s assertion that his counsel “did very
little, if anything, to locate the alibi witnesses” that would have substantiated his alibi
defense. Both of these potential alibi witnesses were contacted and interviewed by the
defense. However, neither of them expressed a willingness to come forward to give
testimony that would have been beneficial for McCartney. If anything, the record shows
they were extremely reluctant to be involved in this case.
       With respect to McCartney’s former girlfriend, the defense investigator drove to
Sacramento to speak to her, but her mother refused to give any contact information to the
investigator. The investigator gave the mother her card and asked that the potential
witness call her. However, the former girlfriend never called the defense investigator and
failed to respond to the investigator’s numerous attempts to contact her. McCartney does
not suggest what additional steps his defense counsel should have taken to secure his
former girlfriend’s cooperation.
       With regard to McCartney’s mother, the defense investigator contacted her, but
she “was not willing and is not willing to step forward and say” her birthday dinner in
San Francisco had occurred October 3, 2001, the night before the crime. More
importantly, as defense counsel noted to the trial court during a Marsden hearing, the fact
that McCartney was at a family dinner in San Francisco the night before the crime was
committed would not have precluded him from kidnapping and raping Claudia between
4:30 a.m. and 7:00 a.m. the next day. Counsel indicated that he never thought that to be
an alibi since “the idea that the alibi for the evening would cover the early morning hours
doesn’t make any sense.”
       In order to prevail on a claim of ineffective assistance of counsel for failure to call
a witness, “there must be a showing from which it can be determined whether the
testimony of the alleged additional defense witness was material, necessary, or
admissible, or that defense counsel did not exercise proper judgment in failing to call


                                              27
him. [Citation.]” (People v. Hill (1969) 70 Cal.2d 678, 690-691; In re Noday (1981) 125
Cal.App.3d 507, 522.) It is doubtful that McCartney’s former girlfriend, who he was
counting on to establish his whereabouts at the time of the crime, would have been a
cooperative witness for McCartney. No affidavits or declarations have been submitted
from any of these potential witnesses setting forth what evidence they would have
provided had they been called at trial. (Bolin, supra, 18 Cal.4th at p. 334 [“ ‘claims must
be supported by declarations or other proffered testimony establishing both the substance
of the omitted evidence and its likelihood of exonerating the accused’ ”]; compare In re
Sixto (1989) 48 Cal.3d 1247, 1262-1263 [to support habeas corpus relief, declarations
were submitted from potential witnesses who were willing to testify at trial but who had
not been contacted by trial counsel].) No showing has been made how McCartney was
prejudiced; consequently, his claim of ineffective assistance of counsel for failing to
investigate and present an alibi defense is meritless.
       9. Modification of Language in CALCRIM No. 315
       McCartney also contends that his defense counsel was ineffective for failing
request that the “certainty factor” be excised from CALCRIM No. 315, which provides
that an eyewitness’s subjective certainty can be considered as a factor in evaluating the
accuracy of the eyewitness identification. That factor, one of 14 listed to assist the jury in
evaluating eyewitness testimony, asks the jury to consider “[h]ow certain was the witness
when he or she made an identification?” McCartney claims modification of CALCRIM
No. 315 should have been sought in light of the scientifically documented lack of
correlation between a witness’s certainty in his or her identification of someone as the
perpetrator of a crime and the accuracy of the identification.
       McCartney’s argument presumes that if a proper objection had been made, the
trial court would have been required to eliminate the “witness certainty” language from
the instruction. But numerous courts, including the California Supreme Court, have
addressed the predecessor to CALCRIM No. 315’s eyewitness identification instruction,
CALJIC No. 2.92 and upheld the “certainty” factor. (See People v. Ward (2005) 36
Cal.4th 186, 213 [no sua sponte obligation to modify the witness certainty language of


                                             28
CALJIC No. 2.92]; People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 [holding the
“trial court did not err . . . in instructing the jury on the ‘certainty’ factor”]; People v.
Wright (1988) 45 Cal.3d 1126, 1141 [holding CALJIC No. 2.92 “will usually provide
sufficient guidance on eyewitness identification factors” and it is generally proper for a
court to give CALJIC No. 2.92 after providing defense counsel an opportunity to suggest
additional factors].)
       In light of this precedent, even McCartney acknowledges any objection of the
giving of this instruction “would have likely been futile.” We therefore conclude defense
counsel was under no obligation to request a modification to CALCRIM No. 315 to
remove the “certainty” factor because the instruction has repeatedly been upheld against
legal challenge.
       10. Trial Court’s Denial of Marsden Motions
       Finally, McCartney claims he should have been allowed to remove his defense
counsel and have another attorney appointed to represent him under Marsden. He claims
“[b]y any standard it should have been clear to the court that trial counsel had done very
little to prepare [McCartney’s] case for trial, was not ready for trial, and had become
embroiled in such an irreconcilable conflict that ineffective representation was likely to
result.”
       A trial court’s duties under Marsden are fully performed when it affords the
defendant the opportunity to present grounds for the motion. (People v. Huffman (1977)
71 Cal.App.3d 63, 80-81 (Huffman).) Trial judges are particularly well-suited to rule on
the adequacy of counsel in criminal cases tried before them, and the court is entitled to
accept counsel’s version of events to the extent there is a credibility question between
defendant and counsel at a Marsden hearing. (People v. Smith (1993) 6 Cal.4th 684,
696.) When the court gives the defendant the opportunity to fully state the grounds for
dissatisfaction with counsel, its ruling on a request for substitution will not be reversed
absent an abuse of discretion. (People v. Moore (1988) 47 Cal.3d 63, 76; People v. Silva
(1988) 45 Cal.3d 604, 622.)



                                               29
       At each of the numerous Marsden hearings conducted in this case, the trial court
fulfilled its duty to allow McCartney to present his grievances, which largely centered on
complaints that counsel had failed to bring certain pretrial motions, had failed to visit him
as often as McCartney believed necessary, had failed to investigate and pursue potential
defenses and witnesses, and failed to obtain McCartney’s approval in formulating trial
strategy. Trial counsel responded to each of McCartney’s criticisms. At the conclusion
of each Marsden hearing, the court found no basis for substituting counsel. The trial
court did not believe any conflict between McCartney and counsel was an irreconcilable
conflict.14 By giving McCartney ample opportunity to present and support his charges
against his counsel, the court fully performed its duties under Marsden. (Huffman, supra,
71 Cal.App.3d at pp. 80-81.)
       Moreover, we can confidently say the trial court did not abuse its discretion in
refusing to discharge counsel. A Marsden motion should only be granted where the
defendant has made “a substantial showing that failure to order substitution is likely to
result in constitutionally inadequate representation.” (People v. Crandell (1988) 46
Cal.3d 833, 859, overruled on other grounds in People v. Craytor (2002) 28 Cal.4th 346,
364-365.) We note that in making his Marsden motions, McCartney principally raises
the same issues that have been discussed and found unpersuasive in this opinion. In each
instance, we have found McCartney either failed to show trial counsel’s performance was
inadequate or that he failed to show there was a reasonable probability but for counsel’s
alleged deficiencies, the result of the proceeding would have been different. (Ledesma,
supra, 43 Cal.3d at pp. 217-218; Strickland, supra, 466 U.S. at p. 687.)
       If the record substantiated McCartney’s claim that defense counsel “could not
make any reasoned determination as to what strategy to pursue because he had failed to

       14
          McCartney’s complaints largely related to trial tactics and strategy and, under
the circumstances of this case, do not constitute the type of “irreconcilable conflict” that
indicates defense counsel’s representation was inadequate. (People v. Welch (1999) 20
Cal.4th 701, 728-729.) The fact that defense counsel had represented San Francisco
police offers in matters before the Police Commission unrelated to this case does not
indicate a conflict that required defense counsel be removed as McCartney’s counsel.


                                             30
engage in any real investigation” it would raise serious legal questions. However, this is
not how we read this record. Instead, we believe this record reflects experienced counsel
making informed strategic judgments under circumstances in which the defense options
were extremely limited, due to the strength of the prosecution’s case. Defense counsel’s
informed decision to pursue and focus on other issues, rather than those suggested by
McCartney at the Marsden hearings, hardly makes defense counsel’s advocacy
constitutionally ineffective. (People v. Cole (2004) 33 Cal.4th 1158, 1192 [defendant
does not have the right to present a defense of his own choosing, but merely the right to
an adequate and competent defense].)
       In light of the overwhelming evidence of McCartney’s guilt, we entertain no doubt
that even the most experienced defense counsel with unlimited time and an infinite
investigative budget would have encountered difficulty in preparing an effective defense
for this trial. Included in the prosecution’s arsenal was Claudia’s unwavering
identification of McCartney and her harrowing description of the attack, the DNA match
with an infinitesimally small chance of error, testimony from another victim who had
been sexually assaulted by McCartney, and similarities between the sketch of Claudia’s
attacker and McCartney’s mug shot taken around the same time. Acknowledging the
strength of this evidence, coupled with a headstrong client who repeatedly questioned
counsel’s competence in a series of Marsden motions, it would be entirely inappropriate
for this court to engage in Monday morning quarterbacking of defense counsel’s choice
of trial strategy.15
       Furthermore, in casting aspersions on the way counsel conducted his defense,
McCartney fails to specify how the jury’s verdict would have been affected by the
additional information that he now claims was necessary. Even with the benefit of
hindsight, appellate counsel does not allege the existence of facts, information, or specific

       15
           McCartney has even attempted to use the fact that he physically assaulted his
defense counsel in court to his tactical advantage. In a handwritten letter setting out
potential issues for appeal, McCartney writes: “[A]fter assaulting my lawyer the court
still forced me to keep my lawyer.”


                                             31
evidence possessing a reasonable possibility of having a substantial effect on the jury’s
verdict. Thus, there is no basis to find “a reasonable probability that . . . the result of the
proceeding would have been different” if counsel had pursued and focused on the
arguments advanced during his various Marsden motions, which are also the focus of his
appeal and habeas corpus writ petition. (Strickland, supra, 466 U.S. at p. 694.)
       Thus, McCartney has not made either of the requisite Strickland showings with
respect to his trial counsel’s alleged failings. Consequently, there is no showing the trial
court abused its discretion in denying his motions for substitute counsel pursuant to
Marsden. (See, e.g., People v. Vines (2011) 51 Cal.4th 830, 878 [denial of a Marsden
motion is not an abuse of discretion unless the defendant shows that the trial court’s
failure to remove counsel and to appoint new counsel substantially impaired the
defendant’s right to effective assistance of counsel].)
                                              IV.
                                       DISPOSITION
       The judgment is affirmed and the petition for writ of habeas corpus is denied.




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                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




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