Filed 10/24/14 P. v. Sagapolu CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135464
v.
CECIL KUUIPO SAGAPOLU,                                               (Alameda County
                                                                     Super. Ct. No. C167678B)
         Defendant and Appellant.




         A jury found Cecil Sagapolu guilty of the second degree murder of Giselle Ortiz
and of being a felon in possession of a firearm. Ortiz had been shot, but there were no
witnesses. Immediately after the shooting, Sagapolu maintained that Ortiz had attempted
suicide.
         On appeal Sagapolu maintains that he was deprived of effective assistance of
counsel because defense counsel (1) failed to raise an objection to a question of an expert
witness; (2) failed to counter the prosecutor’s argument that it would have been difficult
for Ortiz to shoot herself; and (3) failed to mention “reasonable doubt” during closing
argument.
         We find no merit in Sagapolu’s arguments and affirm.
         Sagapolu has also filed a separate petition for writ of habeas corpus, raising the
same issues as on appeal, but seeking an evidentiary hearing concerning defense
counsel’s omissions. Because Sagapolu has failed to establish a prima facie case of
ineffective assistance, we deny his petition for writ of habeas corpus in a separate order.


                                                             1
       In addition to Sagapolu’s issues, the People assert that the trial court erred in
staying the sentence on one of the counts against Sagapolu. Because the People did not
raise this issue on their own appeal, but only in reply to Sagapolu’s appeal, we do not
address the issue.
                                      BACKGROUND
I. Procedural Background
       On November 23, 2011, the People filed an information charging Sagapolu with
murder (Pen. Code,1 § 187, subd. (a)) (count 1) and being a felon in possession of a
firearm (§ 12021, subd. (a)(1)) (count 2).2 The information also alleged enhancements
for personal firearm use, intentional firearm discharge causing death, and three prior
prison terms. (§§ 667.5, 12022.53, subd. (b).)
       On January 20, 2012, Sagapolu stipulated that he had been convicted of a felony
for purposes of count 2. Taking of evidence commenced on February 1, 2012.
       The jury began to deliberate at the end of the day on February 22, 2012.
Deliberation continued over five more days, the jury reaching a verdict late in the
afternoon of March 1, 2012. On count 1, the jury found Sagapolu guilty of second degree
murder and found true the enhancement for personal use of a firearm. The jury found not
true the enhancement alleging intentional discharge of a firearm causing death. The jury
also found Sagapolu guilty on count 2.
       The People elected not to proceed on the allegation of three prior prison terms,
which had been bifurcated. On April 16, 2012, the court sentenced Sagapolu to 15 years
to life in prison on count one, with a consecutive 10-year term for the section 12022.53,


       1
           Unless otherwise indicated, all statutory citations are to the Penal Code.
       2
         The information also alleged offenses committed by a co-defendant, John
Guerrero. The copy of the information in the record before us is missing pages two
through four, including the allegations of enhancements to the murder charge against
Sagapolu and the second count alleged against Sagapolu. We state the allegations as
contained in the People’s brief. Sagapolu does not dispute the People’s rendition of the
allegations, which is in agreement with the instructions given by the court and the verdict
rendered by the jury.


                                               2
subdivision (b), enhancement. The court sentenced Sagapolu to three years in prison on
count 2, but stayed the sentence, pursuant to section 654.
       Sagapolu timely filed a notice of appeal on May 14, 2012.
II. Factual Background
       In the early morning hours of July 31, 2011, Ortiz, who was in a romantic
relationship with Sagapulo, was shot and killed. Dr. Thomas Beaver, who performed the
autopsy, is the chief forensic pathologist for the Alameda County Coroner’s Bureau. He
testified that the bullet entered Ortiz’s face near the left jaw and exited behind her right
ear.3 The bullet traveled from front to back, slightly left to right and slightly upwards.
Beaver concluded that the muzzle of the gun was in contact with Ortiz’s skin and the
wound would have caused death within a few minutes. He found no defensive wounds
and there was no evidence of a struggle. Ortiz used methamphetamine frequently and
had a potentially toxic level of the drug in her body when she died.
       The shooting occurred after Sagapolu and Ortiz had driven to the residence of
Anthony Ross, an apartment at 885 31st Street in Oakland, California. Ross saw
Sagapolu drive up and assumed that Ortiz was in the car as well, because he had been
told that both were coming. Ross testified that he did not actually see Ortiz in the car, but
Lela Vaeao testified that Ross had told of greeting Sagapolu and Ortiz when they arrived
and that they then started arguing. Ross took a shower, which was interrupted when his
roommate, John Guerrero, “bang[ed]” on the bathroom door and told him, “Your cousin.
Come out here. Your cousin.” Ross went outside and found Ortiz bloody, lying on her
back on the concrete. Sagapolu was next to her, also bloody and holding her. Sagapolu
told Ross that Ortiz had tried to kill herself. The vehicle in which Sagapolu had arrived
was still in the driveway. Ross went inside and told Annette Ruiz, who was at his
apartment, that Ortiz had been shot and they needed to take her to the hospital.
       Ruiz described Sagapolu as “very upset.” He was crying and saying, “Baby, hold
on.” Sagapolu told her that Ortiz had attempted suicide. Ross, Guerrero and Sagapolu

       3
           Ortiz was right-handed.


                                              3
carried Ortiz to Ruiz’s van. Ross described Sagapolu as “kind of in shock and crying.”
Ruiz drove Ortiz, Ross, Guerrero and Sagapolu to the hospital. On the way to the
hospital, Sagapolu said, more than once, “Don’t die on me.” After they arrived at the
hospital, Sagapolu told Ross that “he fucked up.”
       Ross was Ortiz’s cousin, but he had known Ortiz for only about 10 years. He had
never seen her with a gun. He knew that during the last month of Ortiz’s life, Sagapolu
was involved with other women, but he didn’t know if Ortiz knew. Ruiz had known
Ortiz from Ortiz’s birth and had also never seen her with a gun.
       When the police interviewed Sagapolu, he wept intermittently and appeared to be
distraught. Sagapolu said that both he and Ortiz were drunk and that he did not want to
provide the details of what happened.
       On August 1, 2011, the police served a search warrant at the residence of Johnny
Smothers, at 883 31st Street in Oakland, and recovered a Smith and Wesson firearm.
Guerrero was inside Smothers’s apartment when police arrived. The firearm was a 9
millimeter semiautomatic pistol, model M&P 9. The magazine held 17 cartridges, but
only 16 cartridges were present.
       Shannon Cavness, an expert in DNA analysis, testified that blood samples from
the muzzle end of the firearm provided “an exact match” with Ortiz’s DNA allele’s at
each location examined. It was her opinion that no one else shared Ortiz’s DNA profile.
Samples from the grip area of the gun were a mixture of female and male DNA and not
all alleles were detected. The quality of the evidence sample was so poor that she could
neither include nor eliminate Sagapolu as a handler of the gun. No fingerprint evidence
was obtained from the gun. Another expert in DNA analysis testified for the defense that
in his opinion Sagapolu was not a contributor to DNA samples taken from the gun.
       Gunshot residue particles were detected on both of Ortiz’s hands. This indicated
that Ortiz had recently fired a firearm, was near someone who had recently fired a
firearm, or had come into contact with a fired firearm or otherwise had a transfer of
particles to her hands. No gunshot residue was found on Sagapolu’s hands.



                                             4
       Two dark colored gloves had been recovered from the back seat floorboard of
Ruiz’s van. Each of the gloves contained a particle that was consistent with gunshot
residue, but single particles generally have no significance. The gunshot residue expert
did not believe that the gloves had been worn by someone who had recently fired a gun.
DNA samples from the gloves were consistent with a mixture of DNA from both Ortiz
and Sagapolu. The “deduced” male portion of the DNA sample4 would occur in only 1 in
260 quadrillion members of the population. Ruiz testified that the gloves looked like
ones she kept in her van.
       Vaeao, Ortiz’s friend and roommate, testified that in July 2011 she saw Sagapolu
standing behind Ortiz and holstering a gun. Ortiz, who seemed nervous and shocked,
told her shortly afterward that Sagapolu had the gun pointed at her head. On another
occasion, Sagapolu told Vaeao that he carried a pistol on his person.
       Vanessa Burgos testified that at a party she had observed Sagapolu with a gun in
his waistband. Later, when Sagapolu and Ortiz were in Ortiz’s room, she saw the gun on
Ortiz’s lap. Burgos had never heard Ortiz talk about killing herself and had never seen
Ortiz with a gun. Burgos was aware that Sagapolu “messed with plenty of other girls.”
Ortiz was aware of this because “[s]he kind of caught him one time, just, like, having
something in his bag.” Despite her knowledge, Ortiz continued to date Sagapolu. Ortiz
and Sagapolu had frequent arguments and Ortiz “always thought [Sagapolu] was messing
around.”
       In addition to testifying about the Ortiz’s autopsy, Beaver stated that he had
performed hundreds of autopsies involving self-inflicted gunshot wounds. He stated that

       4
         Cavness testified: “I was able to deduce the profile of the male donor by
looking at alleles that were foreign to the female donor because I know what her profile
is. And by looking at the peak heights and determining potentially which peaks could be
shared by both donors, I was able to determine most of the locations without any
ambiguity.” Cavness did not testify about other deduced male profiles that might be
possible, given the locations that were ambiguous, or provide a calculation on the
frequency of the combined possible deduced male profiles in the population. Cavness
only said that she could not eliminate Sagapolu as a donor of DNA to the glove and did
not express an opinion as to whether he was the male donor of the DNA.


                                             5
Ortiz’s wound was in an unusual location for a self-inflicted contact wound. The most
common location for a self-inflicted gunshot wound is the area above the right ear. The
next most common location is in the mouth. Following that in frequency would be under
the chin and the central part of the chest. What remains “are just sporadic rare cases.” It
had been years since he had seen a self-inflicted gunshot wound to the left side of the
head. During redirect examination, he testified that the only self-inflicted gunshot wound
to the face that he had seen was to the center of the forehead.
       Mark Bennett testified as an expert in the field of firearms and firearms
identification. He examined a photograph of Sagapolu and compared the visible portion
of a firearm in the pocket area to the Smith and Wesson pistol recovered by the police.
The gun in the photograph had all the features of a Smith and Wesson M&P pistol and he
could find no other pistol in the reference collection that had those features. He
concluded that the gun in the photograph was a Smith and Wesson M&P pistol, but there
was not enough detail to determine if it was the same gun that had been entered into
evidence.
                                       DISCUSSION
       Sagapolu contends that he was deprived of effective assistance of counsel because
defense counsel failed to raise an objection to Beaver’s testimony, failed to counter a
prosecution argument in his own closing argument, and failed to refer to “reasonable
doubt” in his closing argument. We conclude that defense counsel did not perform
deficiently and that, in any case, Sagapolu has failed to show that he was prejudiced by
the allegedly deficient performance.
I. Legal Standard
       “A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction . . . has two components. First, the defendant must show
that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so


                                             6
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
       “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
[Citation.] A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’ [Citation.]” (Strickland, supra, 466 U.S. at p. 689.)
       “When a claim of ineffective assistance is made on direct appeal, and the record
does not show the reason for counsel’s challenged actions or omissions, the conviction
must be affirmed unless there could be no satisfactory explanation. [Citation.] Even
where deficient performance appears, the conviction must be upheld unless the defendant
demonstrates prejudice, i.e., that ‘ “ ‘but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v.
Anderson (2001) 25 Cal.4th 543, 569.) “If ‘counsel’s omissions resulted from an
informed tactical choice within the range of reasonable competence, the conviction must
be affirmed.’ ” (People v. Diaz (1992) 3 Cal.4th 495, 557.)
II. Beaver’s Testimony
       Beaver’s testimony was damaging to Sagapolu because he stated that in his
experience, the location of Ortiz’s wound was unusual for a self-inflicted gunshot wound.
Sagapolu maintains that defense counsel could have prevented Beaver’s testimony about
self-inflicted wounds by objecting to the first question about such wounds.


                                                7
       During voir dire, Beaver testified to extensive qualifications and experience as a
forensic pathologist. He had been a forensic pathologist for Alameda County since July
2011. Prior to his current position, he had been a forensic pathologist for Kern County
from 2009. From 2006 he was the director of the division of forensic pathology and a
faculty member at Texas Tech University. He had been the chief medical examiner in
Volusia County, Florida for six years, after he had been an associate medical examiner in
Panama City, Florida for two years. Prior to that, for five years, he had been a forensic
pathologist in Stanislaus County, covering Tuolumne, Amador, Calaveras, and Merced
Counties. He had graduated from medical school in 1986 and then completed a five-year
residency training program in anatomic and clinical pathology at the University of
Colorado. Beaver also completed a fellowship in forensic pathology at the Denver
County Coroner’s Office, which included specific training concerning gunshot wounds.
He was certified by the American Board of Pathology in anatomic pathology, clinical
pathology, and forensic pathology. He had performed in excess of 5,000 autopsies.
Following voir dire, the court accepted Beaver as an expert witness in the field of
forensic pathology.
       Following voir dire, the prosecutor’s first question to Beaver was: “Have you ever
performed an autopsy on an individual with a self-inflicted gunshot wound?” Beaver
answered, “Yes, many times.” Defense counsel did not object to the question.
       Sagapolu asserts that “the question assumed a fact on which no evidence had been
presented, that . . . Beaver knew which gunshot wounds in past autopsies had been ‘self
inflicted.’ ” He also argues that the question “would have exceeded the scope of the
expertise on which the court had qualified him.”
       Sagapolu suggests that Beaver may have based his determination of whether past
cases involved self-inflicted gunshot wounds “on what he had been told by the police”
and that he “had no independent forensic way” to determine if a gunshot wound was self-
inflicted. Sagapolu’s only basis for such speculation lies within the following excerpt
from Beaver’s testimony: “Q: Do you have an opinion about the percentage of self-
inflicted gunshot wounds that are in the right parietal area? [¶] A. I don’t keep a count,


                                             8
but I would estimate it at about 70 percent, maybe 75. [¶] Q. Is this based on your
personal experiences or also your training and experience and review of the literature?
[¶] A. That’s my cases. Cases that I’ve done.” Sagapolu argues that Beaver’s “response
suggests that recognizing whether a gunshot wound is ‘self-inflicted’ or not was not a
part of . . . Beaver’s ‘training’ as a forensic pathologist.” This amounts to frivolous
argument. It was clearly the percentage that Beaver attributed to his experience and no
conclusion can be drawn from his answer as to whether he had training to recognize self-
inflicted gunshot wounds.
       Sagapolu provides no reason for believing that forming a conclusion as to whether
a gunshot wound is self-inflicted is beyond the normal scope of a forensic pathologist’s
expertise and we reject his argument that defense counsel should have objected on that
basis. Forensic pathologists “commonly” offer opinions “regarding whether the nature of
particular wounds indicates that the victim attempted to defend himself or herself, or that
the wounds were self-inflicted.” (People v. Steele (2002) 27 Cal.4th 1230, 1276.)
Indeed, Sagapolu undermines his own argument by citing four cases in which forensic
pathologists were permitted to give opinions on whether particular wounds were likely to
have been self-inflicted.5 Sagapolu states that the cases he cites “have nothing to do with
the present case. Pathologists in these cases were permitted to testify that gunshot
wounds were probably not self-inflicted where self-infliction of the wounds would have
been extremely difficult or impossible.” However, Beaver offered no opinion as to
whether the gunshot wound to Ortiz was self-inflicted. Sagapolu forgets that his
challenge is to whether, in past autopsies, it was within Beaver’s expertise to form an
opinion as to whether wounds may have been self-inflicted, and then to make
generalizations from those cases. The very cases that Sagapolu cites show that forensic
pathologists can, at least under some circumstances, come to a conclusion that a gunshot
wound is self-inflicted.

       5
        People v. Cole (1956) 47 Cal.2d 99, 103; People v. Mayfield (1977) 14 Cal.4th
668, 765-766; People v. Palmer (1978) 80 Cal.App.3d 239, 247; and People v. Platz
(2006) 136 Cal.App.4th 1091, 1099.


                                              9
       Defense counsel could have legitimately objected to the prosecutor’s initial
question concerning self-inflicted gunshot wounds because no foundation had been laid
concerning how Beaver determined whether gunshot wounds were self-inflicted. The
trial judge may well have sustained such an objection, believing that a proper foundation
would be helpful to the jury.6 But this does not mean that defense counsel had a duty to
object or provided ineffective representation by failing to object. “Because the decision
whether to object is inherently tactical, the failure to object to evidence will seldom
establish incompetence.” (People v. Freeman (1994) 8 Cal.4th 450, 490-491.)
       Because defense counsel had no reason (just as we have no reason) to believe that
a proper foundation could not have been laid following a sustained objection, a failure to
object does not demonstrate deficient performance. And without reason to believe that a
proper foundation would not be forthcoming, Sagapolu was not prejudiced by the failure
to object.
III. Prosecution Argument that Self-Infliction Would Have Been Difficult
       As part of his closing argument, the prosecutor stated: “In order for Giselle Ortiz
to self-inflict a gunshot wound like this, now remember, several people testified that
she’s right-handed. No one testified that she wasn’t right-handed. She would have had
to turn the gun in such a way that she could put her finger on the trigger. Common sense
and logic tells us that an individual is going to use their dominant strong hand to fire a
gun. It’s perhaps possible to do it differently, but we know that Ms. Ortiz had never been
seen by anybody with a gun. Appears to have absolutely no experience with a gun. And

       6
          Sagapolu asserts that “[t]he trial court would probably have sustained such an
objection, because in response to defense counsel’s objection that it was ‘speculative’ for
the prosecution to ask . . . Beaver about his past experience with ‘right handed’ self-
inflicted gunshot wounds, the trial court ruled that such questioning, however worded,
‘assumes he knows whether the person on whom he’s performing the autopsy was right-
handed or left-handed’ and was therefore impermissible.” This assertion assumes that
determining whether a wound is self-inflicted and determining a person’s dominant hand
are equally inside or outside the scope of a forensic pathologist’s expertise—an
assumption for which Sagapolu provides no basis. However, we agree that the trial court
might well have sustained an objection.


                                             10
this is how you would have to—approximately how you would have to self-inflict a
gunshot wound for Ms. Ortiz to have done this to herself. I mean, I’m not—you would
have to almost be Gumby to be able to reach around and do that. It’s just not a practical
way to even inflict a gunshot wound on anyone much less yourself.” The prosecutor then
went on to argue that for the right-handed Sagapolu to inflict a wound to the left side of
Ortiz’s face would require no awkward movement.
       Sagapolu argues that “the wound could easily be explained by Ortiz turning her
head to the right as she pressed the gun against the left side of her jaw. Or, Ortiz could
have held the gun in both hands and easily positioned it on the left side of her face to
inflict the wound. Any reasonably competent defense attorney who was paying attention
to the trial would have at least cross-examined . . . Beaver on this issue and addressed it
in closing argument. This would have shown that there was a reasonable way in which
the wound could have been self-inflicted, which should have raised a reasonable doubt
that [Sagapolu] shot Ortiz.”
       “The right to effective assistance extends to closing arguments. . . . Nonetheless,
counsel has wide latitude in deciding how best to represent a client, and deference to
counsel’s tactical decisions in his closing presentation is particularly important because
of the broad range of legitimate defense strategy at that stage. Closing arguments should
‘sharpen and clarify the issues for resolution by the trier of fact,’ [citation], but which
issues to sharpen and how best to clarify them are questions with many reasonable
answers. . . . Judicial review of a defense attorney’s summation is therefore highly
deferential . . . .” (Yarborough v. Gentry (2003) 540 U.S. 1, 5-6 (Yarborough).)
       Sagapolu offers no reason why defense counsel, before the prosecutor even made
her closing argument, should have examined Beaver concerning whether it would have
been difficult for Ortiz to have shot herself. Beaver offered no opinion on the question
during direct examination.
       As to countering the prosecutor’s argument that it would have been difficult for
Ortiz to have shot herself, “[t]he decision of how to argue to the jury after the
presentation of evidence is inherently tactical.” (People v. Freeman, supra, 8 Cal.4th at


                                              11
p. 498.) Considering the location of the entry near Ortiz’s left jaw, that Ortiz was right-
handed, and that the bullet traveled to the right, exiting behind Ortiz’s right ear, defense
counsel could reasonably conclude that an argument that Ortiz turned her head or held the
gun in both hands would be unconvincing, particularly if he needed to include a
demonstration with his hands (as it seems the prosecutor did), and serve only to draw
attention to that part of the prosecutor’s argument. “ ‘A decision not to address an issue,
an opponent’s theory, or a particular fact should be based on . . . the ability of the
advocate . . . to explain persuasively the position to the fact finder.’ ” (Yarborough,
supra, 540 U.S. at p. 8.) We have no reason to conclude that failure to attempt to counter
the prosecutor’s argument was outside the permissible range of competent representation.
We also have no reason to believe that Sagapolu was prejudiced because Beaver’s
testimony was evidence that the location of Ortiz’s wound was quite unusual for a self-
inflicted gunshot wound that was far more damaging to Sagapolu than the prosecutor’s
argument.
IV. Defense Counsel’s Failure to Discuss Reasonable Doubt
       Sagapolu maintains that “defense counsel did not mention the reasonable doubt
standard even once in his closing argument. The closest defense counsel came to arguing
reasonable doubt was in the concluding portion of his argument, when he said he wanted
‘to talk about the burden of proof.’ Defense counsel then argued that it was not the
burden of the defense to show that Ortiz shot herself, but the prosecution’s burden to
show that [Sagapolu] committed a crime. Defense counsel then concluded: ‘I don’t
think that the evidence is there. I think the evidence runs the other way.’ Defense
counsel’s argument did not even suggest that the prosecution had the burden of proving
[Sagapolu’s] guilt beyond a reasonable doubt. If anything, this argument suggested that
the prosecution’s burden was to prove [Sagapolu’s] guilt by a preponderance of the
evidence.”
       Defense counsel began his opening argument by pointing out that there was no
direct evidence that Sagapolu fired the gun that killed Ortiz. He argued that DNA
evidence did not show that Sagapolu handled the gun and no evidence showed that the


                                              12
gun was his. He argued that Sagapolu’s hands tested negative for gunshot residue and he
had no opportunity to wash before samples were taken. He argued that there was no
evidence that Sagapolu wore the gloves that were in evidence. He noted that Ortiz,
unlike Sagapolu, did have gunshot residue on her hands. In summary, defense counsel
competently stressed the significant evidence that could raise a doubt in the minds of the
jury. Defense counsel did not mention “reasonable doubt,” but the court instructed the
jury with the standard instruction on reasonable doubt. We find no implication in defense
counsel’s argument that a preponderance of the evidence standard applies.
       Sagapolu relies primarily on People v. Smith (2013) 212 Cal.App.4th 1394, in
which Smith asserted that he received ineffective assistance because his attorneys failed
to demand that his status as a sexually violent predator (SVP) be established pursuant to
Welfare and Institutions Code section 6605 (requiring the state to prove SVP status
beyond a reasonable doubt) and instead agreed to a hearing pursuant to section 6608
(requiring Smith to negate SVP status by preponderance of evidence). (Smith at pp.
1407-1408.) The court concluded that “there can be no satisfactory explanation for
agreeing to shift from the state the heavy burden of proving Smith’s SVP status beyond a
reasonable doubt, to Smith to negate that claim by a preponderance of the evidence.” (Id.
at p. 1408.) Smith is inapplicable here, where defense counsel neither shifted the burden
nor suggested a standard of proof less than beyond a reasonable doubt.
       In Yarborough, defense counsel did not argue explicitly that the government had
failed to prove guilt beyond a reasonable doubt, but the court did not find ineffective
assistance because defense counsel’s argument was “the very essence of a reasonable-
doubt argument.” (Yarborough, supra, 540 U.S. at p. 10.)
       Defense counsel here pointed to the weaknesses in the prosecution’s case and
referred to the prosecution’s burden. As in Yarborough, defense counsel’s argument was,
in essence, a reasonable doubt argument, and we do not find his performance deficient.
The jury was properly instructed concerning reasonable doubt, and there is no basis for
concluding that the jury did not understand the proper standard or that Sagapolu was
prejudiced. The fact that the jury took nearly five days to reach a verdict is a strong


                                             13
indication that it took seriously its duty to evaluate the evidence under the standard by
which it had been instructed.
IV. Petition for Writ of Habeas Corpus
        In addition to his direct appeal, Sagapolu has also filed a separate petition for writ
of habeas corpus, raising no new issues, but requesting an evidentiary hearing. “Where
the record does not illuminate the basis for the challenged acts or omissions [of defense
counsel], a claim of ineffective assistance is more appropriately made in a petition for
habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary
hearing to have trial counsel fully describe his or her reasons for acting or failing to act in
the manner complained of.” (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on
other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
        Here, the record does not tell us why defense counsel made the omissions that
Sagapolu maintains demonstrate ineffective assistance of counsel. However, even if,
contrary to our determinations above, one or more of those omissions did demonstrate
deficient performance of defense counsel, Sagapolu has failed to demonstrate that he was
prejudiced. We conclude that Sagapolu has not stated a prima facie case for relief in his
petition, which we deny in a separate order. (People v. Duvall (1995) 9 Cal.4th 464,
475.)
V. Stay of the Sentence on Count 2
        The People contend that the trial court erred in staying the sentence on count 2,
pursuant to section 654. In his reply brief Sagapolu argued that the People may not raise
this issue without filing their own appeal, pursuant to section 1238. At oral argument, the
People argued that our consideration of the issue is permitted by section 1252.
        Section 1252 provides, in relevant part: “On an appeal by a defendant, the
appellate court shall, in addition to the issues raised by the defendant, consider and pass
upon all rulings of the trial court adverse to the State which it may be requested to pass
upon by the Attorney General.”
        Although section 1252 is broadly worded, “there is some merit to the contention
that section 1252 should be subject to reasonable limitations.” (People v. Mendoza


                                              14
(2011) 52 Cal.4th 1056, 1076). The Mendoza court applied the rule of People v.
Braeseke (1979) 25 Cal.3d 691, 701) that “ ‘the People may, on an appeal by the
defendant and pursuant to the provisions of section 1252, obtain review of allegedly
erroneous rulings by the trial court in order to secure an affirmance of the judgment of
conviction.’ ” (Mendoza at pp. 1076-1077.)
       The People’s allegation of a sentencing error is unrelated to arguments for
affirmance or reversal of Sagapolu’s conviction. Accordingly, we do not address the
People’s assertion of error.
                                     DISPOSITION
       The judgment of the trial court is affirmed.



                                                 _________________________
                                                 Brick, J.*


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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


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