Filed 1/29/15 P. v. DeAlba CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B249908

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. PA073050)
         v.

DANIEL DEALBA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, David B.
Gelfound, Judge. Affirmed.
         Law Offices of James Koester, James Koester, under appointment by the Court of
Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, William H. Shin, Deputy
Attorney General, and Eric E. Reynolds, Deputy Attorney General, for Plaintiff and
Respondent.
                                     _____________________________
       The jury convicted defendant and appellant Daniel DeAlba of attempted murder
(Pen. Code, §§ 187, subd. (a), 664, subd. (a) [count 1]),1 criminal threats (§ 422, subd. (a)
[count 2]), and assault with a deadly weapon (§ 245, subd. (a)(1) [count 3]). It found true
the special allegation that the attempted murder was willful, deliberate, and premeditated.
       Defendant’s oral motion for new trial was heard and denied. The trial court
sentenced defendant to life in prison in count 1, a concurrent term of two years in count
2, and a term of three years in count 3, which was stayed pursuant to section 654.
       Defendant contends that there is insufficient evidence to support the jury’s special
allegation finding that he intended to kill the victim or that he acted willfully,
deliberately, and with premeditation. He further contends that the trial court erred in
failing to instruct sua sponte on attempted voluntary manslaughter, and that his counsel
was ineffective because she failed to ask for an attempted voluntary manslaughter
instruction, failed to consult a voice recognition expert, promised to prove he was
misidentified beyond a reasonable doubt in her opening statement, and failed to file a
written motion for new trial.
       We affirm the judgment.


                                            FACTS


Prosecution


       In August 2011, defendant’s son and Edward Aguilar were both arrested for a
narcotics-related crime. Both were convicted. Aguilar served 270 days in jail, and
defendant’s son was sentenced to five years in prison.



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


                                               2
       At around 2:30 p.m. on March 3, 2012, Aguilar was riding a bicycle, and stopped
at an intersection close to a car wash. Defendant walked toward Aguilar from the car
wash. Defendant threw a punch which grazed Aguilar’s face, knocking his sunglasses to
the ground. Aguilar jumped behind a flower bed, out of defendant’s reach. Defendant
yelled at Aguilar and asked Aguilar what happened to his son. Aguilar said they were
both arrested. Defendant responded, “I’m going to fucking kill you,” and moved closer
to Aguilar.
       Aguilar got on his bike and rode away. He could hear defendant yelling behind
him. When he was about 50 yards away, he heard tires screeching behind him. He
turned and saw defendant driving the car, which was an old white sedan, possibly a
1990’s Toyota Camry. Defendant turned into oncoming traffic to follow Aguilar. When
Aguilar made a left turn, defendant continued to follow him. At one point defendant
attempted to cut Aguilar off by making a U-turn.2
       Aguilar rode on the sidewalk, pedaling as fast as he could. Defendant pulled the
car alongside him. Aguilar then stopped abruptly, causing defendant to drive past him.
Aguilar rode his bike into the street behind defendant’s car. Defendant zigzagged to keep
Aguilar from passing him. Aguilar rode up onto the sidewalk again. As he crossed a
driveway, defendant abruptly turned into it, and drove onto the front lawn of a house in
an attempt to hit Aguilar. Aguilar rode behind a tree to escape. Defendant’s car missed
him by inches.
       Defendant backed up, and then drove toward Aguilar again. Aguilar feared for his
life. He believed defendant was trying to kill him. Aguilar jumped off his bike and ran
to the closest house. He could hear defendant revving the car’s engine behind him. He
banged on the front door of the house, yelling for someone to let him in, and call 911. He
screamed that defendant was trying to run over him. Defendant pulled up to the house




       2 Defendant testified that a second car, a dark green sedan, followed him as well,
but that the driver never drove close to him and did not try to hit him.

                                            3
and ran toward Aguilar. Someone opened the door and pulled Aguilar inside, when
defendant was only five feet away. Defendant’s fist struck the door as it closed.
      There was a woman inside the house, and some other people who ran out a side
door to confront defendant. Aguilar could hear defendant screaming and yelling. After a
time, defendant left. Aguilar left the house and went home.
       On March 3, 2012, at around 2:30 p.m., Joe Meyer was standing in his driveway
when he saw a man on a bicycle being pursued by a car. The man got off the bicycle and
ran toward Meyer’s front door. Meyer went into the house through a side door, and saw
the man inside. He locked the front door and called 911. While on the phone with the
911 operator, he walked out to the front yard. A Hispanic man with a goatee was in the
yard ranting and raving.3 He looked like he was “in fight mode.” Meyer saw a white
sedan and a bluish-green sedan parked in front of his house.
       In a recording of Meyer talking to the 911 operator, defendant could be heard in
the background. He said he was going to “get that son of a bitch.” “That fucker is a
snitch. He snitched my son off. He smokes dope.” “I don’t want no problems with you
guys. My son is behind bars because of that fucker. That dope head.” Another voice can
be heard saying: “Come on. Let’s go.” Defendant replied, “Alright. We’ll see him.
We’ll see him. That lying son of a bitch.”4
      Maria Zepeda was sitting on her front porch when she saw a man on a bicycle
being chased by two cars. One car was white and the other was a darker color. The man
on the bicycle shouted, “Call the police.” The cars followed the bicycle wherever it
moved. She saw the man on the bicycle get off and run into a house. Zepeda could hear
someone shouting something about his son.


      3 Meyer   was unable to identify defendant as the man who was in his yard at trial.
He said that defendant’s hair was different than the man’s. He described the man on his
lawn as a Hispanic male, with longish slicked back hair, a moustache and a goatee. The
man was between 40 and 50 years old.
      4 The recording of the 911 call was played for the jury. Aguilar and investigating
Detective Doug Larkin identified the voice as defendant’s.

                                              4
       Zapeda was shown a six-pack of photographs at trial. She picked out photo
number 4, which was of defendant, because it “called out to her the most” as being
related to the incident. She could not positively identify defendant as one of the persons
she saw driving either of the cars, but she believed that defendant was the person in the
photo. She had not seen the drivers of the cars for more than five seconds.
       Detective Doug Larkin investigated the incident. He observed a green 1990’s
Honda Accord parked on the street near defendant’s house. Defendant told Detective
Larkin the car belonged to him. Detective Larkin asked defendant if he had been in the
area of the incident on March 3, 2012. Defendant said he had never been there in his life.
Detective Larkin asked why Aguilar would say defendant tried to run over him with a
car. Defendant said he had seen his son’s arrest report and knew that Aguilar had
“snitched” on his son. He was angry because Aguilar had received a shorter sentence
than his son. Defendant said that as long as they were out of jail, Aguilar did not have to
worry about him. He asked if Aguilar was injured. Detective Larkin said that he was
not. Defendant smirked and replied, “Exactly.”


Defense


       Defendant had a business buying cars, restoring them, and then selling them for
profit. He specialized in classic cars and Hondas. He sometimes kept cars he had for
sale at his house.
       Defendant’s daughter, Priscilla DeAlba, worked at defendant’s car restoration
business. On March 3, 2012, at around 2:00 p.m. or 3:00 p.m., defendant picked up
Priscilla at her house to get parts for a white 1992 two-door Honda Accord. They drove
to an auto parts store together in defendant’s blue Ford Ranger pickup truck. Defendant
went inside while Priscilla waited in the truck. He stayed in the store for 30 to 45
minutes and afterwards drove Priscilla home.
       Priscilla made a list of the cars the business owned in March 2012. The list
included a 1998 blue Ford Ranger, a 1998 dark green Honda Civic, a 1992 white Honda

                                             5
Accord, a 1997 burgundy Cadillac, a 2005 white Chevrolet Silverado, and a 1991 faded
dark green Honda Accord.
       Priscilla owned the green Honda Civic Detective Larkin saw parked in front of
defendant’s house. She let her older brother drive the car, but no one else.
       Torina DeAlba, who was also defendant’s daughter, worked at his business as
well. She was out of the country on March 3, 2012, but returned about one or two weeks
later. No one in the family had ever owned a Toyota.
       Priscilla and Torina both testified that the voice in the background of the 911 call
did not sound like defendant’s voice. The person on the recording had a different accent.
Defendant could not shout like the person on the recording, because he lost his voice
when he yelled.


                                      DISCUSSION


Sufficiency of the Evidence


       Defendant contends that his conviction for attempted premeditated murder must be
reversed because there was insufficient evidence that he intended to kill Aguilar or that
his acts were deliberate, willful, and premeditated. There is no merit to his claims.
       The Fifth and Sixth Amendments, which apply to the states through the Fourteenth
Amendment, require the prosecution to prove all elements of a crime beyond a reasonable
doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) A conviction supported by
insufficient evidence violates the Due Process Clause of the Fourteenth Amendment and
must be reversed. (Jackson v. Virginia (1979) 443 U.S. 307, 317-319.) The same is true
of enhancements. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
       “‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the

                                             6
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46
Cal.4th 680, 701.) “We must presume in support of the judgment the existence of every
fact that the trier of fact could reasonably deduce from the evidence. [Citation.]”
(People v. Medina (2009) 46 Cal.4th 913, 919.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio
(2008) 43 Cal.4th 327, 357 (Zamudio).) “Substantial evidence includes circumstantial
evidence and the reasonable inferences flowing therefrom.” (People v. Ugalino (2009)
174 Cal.App.4th 1060, 1064.) “We ‘must accept logical inferences that the jury might
have drawn from the circumstantial evidence. [Citation.]’ [Citation].” (Zamudio, supra,
at p. 357.) “The standard of review is the same when the prosecution relies mainly on
circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)


        Intent to Kill


        “‘Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]”
(People v. Smith (2005) 37 Cal.4th 733, 739.) It follows that to support a conviction with
a surviving victim, the prosecution must prove defendant “acted with specific intent to
kill that victim.” (Ibid.) Reasonable inferences drawn from circumstantial evidence such
as motive and the nature of the defendant’s acts may support a finding of specific intent
to kill. (Id. at pp. 740-741.) Intent to kill “may in many cases be inferred from the
defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct
evidence of a defendant’s intent. Such intent must usually be derived from all the
circumstances of the attempt, including the defendant’s actions. [Citation.]’” (Id. at p.
741.)
        Defendant argues he had many opportunities to run over Aguilar and did not do
so, which evidences that he lacked the specific intent to kill. Without debating the merits
of the dubious theory raised by defendant, there is substantial evidence in the record that

                                             7
defendant repeatedly attempted to take Aguilar’s life, and simply failed. Defendant’s
actions are substantial evidence of an intent to kill. Defendant immediately tried to
punch Aguilar and told him in no uncertain terms that he intended to kill him. He barely
missed Aguilar’s head, knocking his glasses from his face. After Aguilar was able to get
away, defendant chased Aguilar in his car, going so far as to drive into oncoming traffic
in his pursuit. When Aguilar rode his bicycle on the sidewalk to evade defendant,
defendant turned into a residential driveway and up onto a front lawn in an attempt to hit
him. Aguilar rode behind a tree and escaped being run over by inches. When Aguilar
then ran to the front door of a house and banged on the door to get inside, defendant
pursued him on foot. He was only five feet away when Aguilar was pulled into the house
and the door was locked behind him. Once Aguilar was inside, defendant continued to
rant and rave like a man “in fight mode.” Substantial evidence was presented that
defendant had a strong motive to kill Aguilar. He believed that Aguilar bargained for a
more lenient sentence at the expense of his son, who received a longer prison term. He
told Aguilar that he believed he had snitched, and yelled about the snitching in front of
other witnesses. His rants were recorded on the 911 call. In light of defendant’s express
threat, motive, and repeated violent actions, there was more than ample evidence for the
jury to infer that defendant intended to kill Aguilar, and took direct, but ineffective, steps
to do so.


       Willful, Deliberate, Premeditated Attempted Murder


       Defendant argues that there is insufficient evidence of premeditation and
deliberation because no evidence was presented of planning or preconceived design, two
of the three factors that may support deliberateness and premeditation that were identified
in People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson). He asserts the evidence
shows he ran into Aguilar randomly at the car wash, and then impulsively used his car—
which was the most readily accessible weapon—to assault Aguilar. We conclude the
evidence was sufficient to support the jury’s premeditation finding.

                                              8
       “An intentional killing is premeditated and deliberate if it occurred as the result of
reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite
reflection need not span a specific or extended period of time. Thoughts may follow each
other with great rapidity, and cold, calculated judgment may be arrived at quickly.
[Citations.]” (People v. Nelson (2011) 51 Cal.4th 198, 213 (Nelson).) “The test is not
time, but reflection.” (People v. Bloyd (1987) 43 Cal.3d 333, 348.)
       Anderson, supra, 70 Cal.2d at pages 26-27, identified three factors that may
support a finding of premeditation and deliberation—planning, motive, and preconceived
design. But these factors are not the only means for establishing premeditation and
deliberation. (People v. Lenart (2004) 32 Cal.4th 1107, 1127.) “Unreflective reliance on
Anderson for a definition of premeditation is inappropriate.” (People v. Thomas (1992) 2
Cal.4th 489, 517.) The court’s ultimate duty is to assess “‘whether the evidence is
supportive of an inference that the killing was the result of preexisting reflection and
weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.]”
(People v. Solomon (2010) 49 Cal.4th 792, 812.) “A conviction will be upheld on any
reasonable theory supported by substantial evidence. [Citations.]” (Nelson, supra, 51
Cal.4th at p. 213.)
       As discussed above, the evidence shows that defendant had a motive to kill
Aguilar. Evidence was also presented that defendant had time to weigh his options and
make a considered decision. He sought out Aguilar, approaching him from the nearby
car wash. He was not in his car when he first encountered Aguilar. He made the decision
to enter the car and pursue Aguilar aggressively. Defendant’s actions were deliberate.
The jury could reasonably infer defendant was intent on killing Aguilar and that he had
made the decision to do so before the altercation. There were several occasions during
the incident for defendant to weigh the consequences of his actions and proceed with a
determination to exact fatal revenge. Defendant made a U-turn in attempting to cut
Aguilar off; mirrored Aguilar’s movements, zigzagging to stay close behind him; drove
into oncoming traffic to prevent Aguilar from escaping; and then tried to cut Aguilar off
again by driving over a curb into Meyer’s front yard. He got out of the car and continued

                                              9
to chase Aguilar. All of his actions required a degree of forethought and decision-
making, which he had sufficient time to consider.
       Finally, there was no evidence that Aguilar did anything to provoke an impulsive
violent response from defendant during the encounter, which lends further support to the
jury’s finding that the attempted killing was deliberate and premeditated. (See People v.
Lunafelix (1985) 168 Cal.App.3d 97, 102 [lack of provocation is a strong factor
supporting jury’s conclusion that defendant’s attack was deliberate and premeditated].)
The evidence was sufficient to sustain defendant’s conviction for willful, deliberate,
premeditated attempted murder.


Attempted Voluntary Manslaughter Instruction


       The trial court instructed the jury as to attempted murder, and deliberation and
premeditation. It did not instruct the jury as to attempted voluntary manslaughter on a
heat of passion theory. The jury convicted defendant of attempted premeditated murder.
Defendant contends on appeal that the trial court had a sua sponte duty to instruct the jury
as to the lesser included offense of attempted voluntary manslaughter.5 He argues that he
acted in the heat of passion, because the initial provocation—learning that defendant had
snitched on his son—was an ongoing source of irritation, and upon seeing Aguilar
unexpectedly he became so incensed about his son’s sentence that he acted irrationally.
We reject defendant’s contention.
       The Constitution requires the jury to determine every material issue presented by
the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 645 (Lewis).) Accordingly, “[a]
court must instruct sua sponte on general principles of law that are closely and openly
connected with the facts presented at trial.” (People v. Lopez (1998) 19 Cal.4th 282,
287.) “[A] trial court must instruct on lesser included offenses, even in the absence of a



       5 Defense counsel did not request an attempted voluntary manslaughter
instruction.

                                            10
request, whenever there is substantial evidence raising a question as to whether all of the
elements of the charged offense are present.” (Lewis, supra, at p. 645.) “[S]ubstantial
evidence to support instructions on a lesser included offense may exist even in the face of
inconsistencies presented by the defense itself.” (People v. Breverman (1998) 19 Cal.4th
142, 162-163 (Breverman), fn. omitted.) “Conversely, even on request, a trial judge has
no duty to instruct on any lesser offense unless there is substantial evidence to support
such instruction. [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a
lesser included offense . . . .” (Breverman, supra, at p. 162.) Evidence is substantial for
this purpose if it could cause a jury composed of reasonable persons to conclude that the
defendant committed the lesser but not the greater offense. (Ibid.)
       Our Supreme Court has held that “in a noncapital case, error in failing sua sponte
to instruct, or to instruct fully, on all lesser included offenses and theories thereof which
are supported by the evidence must be reviewed for prejudice exclusively under [People
v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be
reversed in consequence of this form of error only if, ‘after an examination of the entire
cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably
probable’ the defendant would have obtained a more favorable outcome had the error not
occurred [citation].” (Breverman, supra, 19 Cal.4th at p. 178, fn. omitted; but see People
v. Thomas (2013) 218 Cal.App.4th 630, 643-644 (Thomas) [applying Chapman v.
California (1967) 386 U.S. 18 to a trial court’s failure to instruct on the lesser included
offense of voluntary manslaughter based on a heat of passion theory where supported by
substantial evidence].) We, of course, follow the decision in Breverman and not Thomas.
       Attempted voluntary manslaughter is a lesser included offense of attempted
murder. (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708 (Gutierrez).) Either
imperfect self-defense or heat of passion will reduce an attempted killing from attempted
murder to attempted voluntary manslaughter by negating the element of malice. (Ibid.)
       To establish attempted voluntary manslaughter under a heat of passion theory, the
defendant must demonstrate both provocation and heat of passion. (Gutierrez, supra, 112

                                              11
Cal.App.4th at pp. 708-709.) “‘First, the provocation which incites the [perpetrator] to
act in the heat of passion case must be caused by the victim or reasonably believed by the
accused to have been engaged in by the [victim]. [Citations.] Second, . . . the
provocation must be such as to cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection.’ (People v. Lujan (2001) 92
Cal.App.4th 1389, 1411-1412.)” (Gutierrez, supra, at pp. 708-709.) “The test of
adequate provocation is an objective one . . . . The provocation must be such that an
average . . . person would be so inflamed that he or she would lose reason and judgment.
Adequate provocation and heat of passion must be affirmatively demonstrated.” (People
v. Lee (1999) 20 Cal.4th 47, 60, citing People v. Sedeno (1974) 10 Cal.3d 703, 719;
People v. Williams (1969) 71 Cal.2d 614, 624.) “‘“[N]o specific type of provocation [is]
required . . . . ”’ [Citations.] Moreover, the passion aroused need not be anger or rage, but
can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citations] other
than revenge [citation]. ‘However, if sufficient time has elapsed between the provocation
and the [crime] for passion to subside and reason to return, the [attempted] killing is not
[attempted] voluntary manslaughter . . . .’ [Citation.]” (Breverman, supra, 19 Cal.4th at
p. 163.)
       Here, the trial court had no duty to instruct on attempted voluntary manslaughter
because there was not substantial evidence to support the instruction. No evidence was
presented that Aguilar did anything to provoke defendant at any time on the day of the
incident. Thus, contrary to defendant’s assertions, there were no facts for the jury to
weigh to determine whether defendant had been provoked that day. Moreover, defendant
presented no evidence regarding when he first learned that Aguilar purportedly snitched
on his son, which would allow the jury to evaluate whether the purported provocation
was close enough in time for defendant to have remained unreasonably impassioned.
Defendant argues that the jury could have inferred from the circumstances that defendant
had learned of the snitching very recently. This is pure speculation; speculation is not
substantial evidence. Without an affirmative showing of adequate provocation, the



                                             12
evidence was legally insufficient for the jury to convict defendant of the lesser offense.
The trial court did not err in omitting the instruction.
       Regardless, any error in failing to instruct the jury as to the lesser included offense
of attempted voluntary manslaughter on a heat of passion theory would be harmless in
light of the jury’s verdict finding defendant guilty of deliberate and premeditated
attempted murder. This special finding is inconsistent with a heat of passion theory. The
factual question that would have been posed by heat of passion/attempted voluntary
manslaughter instructions was resolved adversely to defendant by the jury. (Cf. People v.
Prettyman (1996) 14 Cal.4th 248, 276.) In addition, the jury was not confronted with an
all or nothing choice, i.e., guilty of attempted premeditated murder or not guilty. (Cf.
People v. Turner (1990) 50 Cal.3d 668, 692-693.) It was given an opportunity to find
defendant guilty of attempted murder without premeditation and deliberation or of the
lesser related offense of assault with a deadly weapon under section 245 alone, as
charged in count 3.
       Additionally, the evidence of defendant’s guilt was overwhelming. Defendant was
identified as the assailant by Aguilar, who knew him prior to the incident and was not
likely to misidentify him. Zepeda also indicated a belief that defendant was one of the
drivers, although her identification did not have the same degree of certainty. Defendant
had a strong motive to commit the crimes because of Aguilar’s relationship to his son’s
imprisonment. The assailant referenced his son and a “snitch” vehemently multiple times
during the incident, most notably on the 911 recording. Zapeda heard the assailant
yelling about his son, consistent with defendant’s motive. Finally, both Aguilar and
Detective Larkin positively identified defendant’s voice as being in the background in the
911 recording. There is no reasonable probability the asserted error contributed to the
verdict.




                                              13
Ineffective Assistance of Counsel


       Defendant contends that the aggregate of defense counsel’s errors deprived him of
his right to the effective assistance of counsel, as required by due process. Specifically,
he argues that counsel’s performance was ineffective because she: (1) failed to request
an instruction on attempted voluntary manslaughter or a pinpoint instruction on
provocation; (2) was deficient in securing and preparing a voice recognition expert; (3)
promised that she would show defendant was not the perpetrator beyond a reasonable
doubt in her opening statement; and (4) failed to file a written new trial motion. We
reject defendant’s arguments.
       “To secure reversal of a conviction upon the ground of ineffective assistance of
counsel under either the state or federal Constitution, a defendant must establish (1) that
defense counsel’s performance fell below an objective standard of reasonableness, i.e.,
that counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s shortcomings. (Strickland v.
Washington (1984) 466 U.S. 668, 687-694; see Williams v. Taylor (2000) 529 U.S. 362,
391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ (Strickland v.
Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)”
(People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Prejudice may be shown when,
although no single error was prejudicial in and of itself, the cumulative effect of
counsel’s errors so undermined confidence in the outcome of the trial that the reviewing
court could not be confident in the outcome. (In re Jones (1996) 13 Cal.4th 552, 583-
587.) If a court may dispose of the case on lack of prejudice, there is no need to consider
error. (Strickland v. Washington, supra, at p. 699.)
       To establish the first prong, “defendant must show that counsel’s action or
inaction was not a reasonable tactical choice . . . .” (People v. Michaels (2002) 28
Cal.4th 486, 526.) Deference is generally afforded to the tactical decisions of trial

                                             14
counsel in order to avoid second-guessing counsel’s tactics. (In re Jones, supra, 13
Cal.4th at p. 561; In re Cordero (1988) 46 Cal.3d 161, 180.) Ineffective assistance of
counsel claims are generally more appropriately litigated through habeas corpus
proceedings, as they frequently involve questions of defense strategy that do not appear
on the face of the trial record. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-
267.) “If the record ‘sheds no light on why counsel acted or failed to act in the manner
challenged,’ an appellate claim of ineffective assistance of counsel must be rejected
‘unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.’ (People v. Pope (1979) 23 Cal.3d 412, 426;
see In re Avena (1996) 12 Cal.4th 694, 721.)” (People v. Ledesma (2006) 39 Cal.4th 641,
746.)


        Failure to Request an Attempted Voluntary Manslaughter Instruction


        As we discussed, in this case there was not substantial evidence to support giving
an instruction on attempted voluntary manslaughter on a heat of passion theory because
defendant did not present substantial evidence of provocation. Our conclusion that there
was not substantial evidence of provocation necessarily forecloses any argument that a
pinpoint instruction on provocation would have been appropriate. Absent substantial
evidence to support either instruction, counsel made a reasonable tactical choice in not
requesting them, and defendant was not prejudiced by their omission.


        Deficiencies in Securing and Preparing a Voice Recognition Expert


        During trial, defense counsel sought to offer the testimony of Thomas Guzman-
Sanchez as an expert witness on voice recognition. Guzman-Sanchez would testify that
in his opinion the voice in the background of the 911 telephone recording was not
defendant’s. The trial court held a hearing pursuant to Evidence Code section 402 to
determine whether the testimony was admissible.

                                             15
       Guzman-Sanchez testified at length in the hearing. He was a member of the Los
Angeles Superior Court Expert Witness Panel; had over 30 years of experience as an
Avid Editor and Final Cut Professional for television and film; produced, mastered and
engineered albums; and did extensive nonlinear editing, i.e. moving clips of audio from
one point in a file to another using a computerized process. Guzman-Sanchez had
developed a heightened ability to recognize accents, cadence, timbre, rhythm, tone,
pattern, and other components of voice and speech through his work. He used all of the
most current technology and state of the art equipment for editing audio. Guzman-
Sanchez had consulted on voice identification for public defenders in 16 cases, and
testified in 1 case.
       In determining whether the voice was defendant’s, Guzman-Sanchez created an
exemplar, by recording defendant’s voice as he a experienced a range of emotions. He
then converted the exemplar and the 911 telephone recordings into the same file type to
balance the volume and resolution of the files for comparison, and removed all
extraneous noise from the 911 telephone recording. He isolated the background voice
from the 911 telephone recording and consolidated it into one file with the exemplar so
that he could evaluate them back-to-back. It was very clear to him from the rhythm and
timbre of the voices that they were not the same person.
       Guzman-Sanchez confirmed that defense counsel contacted him two weeks prior
to the hearing to check his availability, and that the day before the hearing she had asked
him whether he was ready to testify despite the short timeline.
       On cross-examination, Guzman-Sanchez testified that he did not have an
educational degree in Linguistics, Forensics, Anthropology and Dialects, or any other
subject related to performing auditory voice comparison. Guzman-Sanchez testified that
no such discipline existed. He could read a sound wave graph, but a sound wave alone
would not allow someone to differentiate between two voices. He reached his
conclusions through listening. Guzman-Sanchez had not written any scholarly articles
related to voice comparisons. He had read dozens of articles but could not recall the
authors.

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       On redirect, Guzman-Sanchez testified that in listening to a voice he could isolate
many different factors to compare, and that in addition to listening, he used tools such as
sound waves to support his conclusions. He spent 20 hours analyzing the audio in the
case, consisting of 17 hours of laboratory analysis, and 3 hours converting files and
making a report.
       The prosecution argued that although Guzman-Sanchez appeared to be very
experienced in sound editing, his experience with listening would not be any different
from that of a juror of the same age, and was simply a lay opinion. Guzman-Sanchez’s
opinion was not based on any recognized scientific method. He therefore could not
testify as an expert on that aspect of the 911 telephone recording, and allowing him to
testify would create confusion in the jury regarding whether he was giving lay testimony
or an expert opinion.
       After a recess, the court ruled the testimony excluded. It concluded that Guzman-
Sanchez’s testimony lacked foundation, was based on speculation and conjecture, and
would cause confusion to the jury. The court stated that it would be admissible to have
someone who was familiar with defendant’s voice testify as to whether the voice on the
911 telephone recording was defendant’s.
       Defendant contends that his counsel’s failure to secure a voice recognition expert
within a reasonable time, and to adequately prepare the proposed voice recognition expert
by timely supplying discovery to him, constitutes ineffective assistance. We disagree,
because defendant has not demonstrated prejudice.
       Defendant argues that his main defense at trial was mistaken identification, and
that if the jurors believed Guzman-Sanchez’s expert testimony, along with the testimony
of defendant’s alibi witness, it would have likely created reasonable doubt that he was the
assailant. But defendant does not explain how extended or more timely preparation
would have affected the trial court’s ruling. The question at issue was whether Guzman-
Sanchez had specialized experience and education that would qualify him to audibly
distinguish between two voice recordings in a more accurate manner than the average
layperson. Although he demonstrated extensive knowledge and experience in audio

                                            17
editing, he had no scientific educational background and had written no academic articles
in the area of voice comparison. The trial court based its ruling on his lack of these
qualifications, and defendant does not challenge the trial court’s ruling on appeal.
Defendant has not argued that Guzman-Sanchez had specific additional qualifications
that the court may have accepted. There is no basis to believe that the outcome of the
Evidence Code section 402 hearing would have been different if Guzman-Sanchez had
prepared earlier.
       Moreover, defendant introduced other evidence to refute the prosecution’s
argument that his voice was in the background of the 911 telephone call.
Defendant’s two daughters testified that the background voice was not his. Our Supreme
Court has long recognized that lay witness testimony is appropriate to identify a
defendant’s voice. (See People v. Clark (1992) 3 Cal.4th 41, 135-137; People v. Osuna
(1969) 70 Cal.2d 759, 764-765.) The jury had the opportunity to consider their
testimony, and rejected it.
       Finally, the prosecution’s evidence that defendant was the assailant was
overwhelming. He had a strong motive, which he referred to repeatedly in front of
witnesses, and he was identified visually as well as audibly. Neither the extent nor
timing of Guzman-Sanchez’s preparation is sufficient to undermine confidence in the
outcome.


       Opening Statement Promise


       In her opening statement, defense counsel told the jury: “The evidence will prove
to you -- if you don’t mind my saying, beyond a reasonable doubt—that it couldn’t have
been [defendant]. [¶] And when I say the evidence will prove it, I want you to hold me
to that. We’ll have witnesses. We’ll have the people who know the true facts and we’ll
bring them before you to testify.”
       Defendant argues that counsel unreasonably made this promise to the jury
although she could not keep it. He asserts that the proposed expert witness was the

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lynchpin of her theory, but that she had not yet given discovery to him to analyze and did
not have adequate knowledge of his qualifications to make her promise. Although the
argument is not fully developed, it appears that defendant also contests the statement on
the basis that it improperly shifted the burden of proof to the defense.
       Defendant’s assertion that there was no evidence to support the statement is belied
by the record. Defense counsel did not promise the jury that she would present expert
testimony on voice recognition. She did present evidence that defendant was not the
assailant as promised—witnesses who testified that the voice in the background of the
911 telephone recording was not defendant’s, an alibi witness, and evidence that
defendant did not have access to a car that matched the description of the assailant’s
vehicle—all of which supported her theory of the case. It was not an unreasonable choice
to argue mistaken identity as a defense.
       With respect to the burden of proof, counsel’s statement that she could prove
defendant was not the assailant beyond a reasonable doubt was qualified, and suggested
that even if the burden was shifted she could prove his innocence. We do not interpret it
as a statement that the burden of proof fell to defendant. Defense counsel may have
made the statement in an attempt to make defendant’s case appear stronger before the
jury. The record is not adequately developed for us to discern counsel’s tactical
motivations, and this is not a case where there was no reasonable explanation for her
actions.
       Even if counsel’s statement was unreasonable, we cannot conclude that defendant
was prejudiced. As we have discussed, the evidence of defendant’s guilt was
overwhelming. Additionally, it is highly unlikely that the jury interpreted counsel’s
statement to mean anything other than that she was very confident in the evidence. Even
if it did, it was properly instructed on the burden of proof pursuant to CALCRIM No.
220, and instructed under CALCRIM No. 200 that to the extent the attorney’s comments
on the law conflicted with the court’s, they were bound to follow the court’s instructions.
Jurors are presumed to be intelligent and capable of correctly understanding the court’s



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instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Sanchez (2001) 26
Cal.4th 834, 852.) We presume they did so here.


        Failure to File a Written Motion for New Trial


        Finally, defendant was not prejudiced by counsel’s failure to file a written motion
for new trial. Defense counsel presented the motion for new trial orally at length, arguing
that the trial court improperly excluded Guzman-Sanchez’s expert testimony, that
defendant’s jury trial rights were violated because one of the jurors recognized the victim
as someone who he had seen in his neighborhood, and that the charge in count 3 had been
improperly added just prior to trial constituting double jeopardy. As defendant admits, he
“can only speculate as to whether counsel would have made a better argument through a
written motion.” Such speculation does not undermine our confidence in the outcome of
the trial.


Cumulative Error


        Defendant contends that even if no single error warrants reversal of the judgment,
the errors must be deemed prejudicial when evaluated in combination. We reject the
claim. Any errors at trial as a whole were of minimal significance. In light of that and
the overwhelming evidence of guilt in this case, whether considered individually or for
their cumulative effect, they could not have affected the process or result to defendant’s
detriment.




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                                   DISPOSITION


      The judgment is affirmed.




             KRIEGLER, J.


We concur:




             TURNER, P. J.




             GOODMAN, J.*




      * Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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