Filed 3/17/17

                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                 E064000

v.                                                (Super.Ct.No. RIF1402688)

SELINA MICHELE ANGEL,                             OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed.

        Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.

Taylor and Samantha L. Begovich, Deputy Attorneys General, for Plaintiff and

Respondent.




                                           1
       Defendant and appellant Selina Michele Angel had two jury trials concerning

three charges. At the first trial, the jury acquitted defendant of the third count of

committing a lewd or lascivious act on John Doe 2 (JD2), a minor under 16 years old.

(Pen. Code, § 288, subd. (c)(1).)1 The first jury was unable to reach a verdict on the

remaining two charges.

       At the second trial, the jury found defendant guilty of (1) committing a lewd or

lascivious act upon John Doe 1 (JD1), a child under 14 years old (§ 288, subd. (a)(1));

and (2) committing a lewd or lascivious act on JD2, a minor under 16 years old (§ 288,

subd. (c)(1)). The second jury found true the allegation that defendant engaged in

substantial sexual conduct with JD1, who was under 14 years old. (§ 1203.066, subd.

(a)(8).) The trial court sentenced defendant to prison for a term of six years eight

months.

       Defendant contends her counsel rendered ineffective assistance at the second trial

by failing to subpoena two witnesses who testified at the first trial. We affirm the

judgment.

                     FACTUAL AND PROCEDURAL HISTORY

       A.     PROSECUTION’S CASE—SECOND TRIAL

       In March 2013 JD1 was 13 years old and JD2 was 15 years old. JD1 and JD2

(collectively, the boys) were friends that were “like brothers.” One day, in mid- to late-

March 2013 the boys went to a mobile home park to visit a relative of JD1. While the

       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.


                                              2
boys were outside, defendant invited them to her trailer. The boys entered defendant’s

trailer.

           Defendant asked the boys, “[D]o you want me to perform oral on you?” JD2

replied, “[Y]es.” Defendant and the boys were in a bathroom together. Defendant

orally copulated JD2, while JD1 was present. Defendant then “switche[d]” to orally

copulating JD1, while JD2 was present. When defendant stopped orally copulating

JD1, defendant and JD2 engaged in vaginal intercourse, in the bathroom, while JD1 was

present. When the intercourse ended, the boys left the trailer.

           B.    DEFENDANT’S CASE—SECOND TRIAL

           Defendant testified. In March 2013 defendant was 30 years old. Defendant

denied having sexual contact with the boys. Defendant had resided at the trailer park,

but moved out on February 18. Defendant was avoiding the trailer park in March 2013

because she separated from her husband, who resided in the park.

           In late 2012, defendant rejected a romantic advance by JD1’s older brother, who

was 18 years old. The older brother became hostile toward defendant. For example,

defendant believed JD1’s older brother stole her cell phone one week after the rejection.

           C.    WITNESSES NOT CALLED—SECOND TRIAL

           The prosecution’s witness list included eight people. Among those on the list

were (1) Riverside City Police Officer Flores, and (2) Riverside City Police Officer

Cleary (collectively, the officers). Defendant’s witness list included two people:

(1) defendant, and (2) defendant’s husband.




                                               3
        In the midst of the second trial, the prosecutor decided not to call the officers as

witnesses. Officer Flores interviewed JD1. Officer Cleary interviewed JD2. The

prosecutor explained it was a prospective witness list. The prosecutor included the

officers on the witness list in case JD1 and/or JD2 “went sideways” and prior statements

needed to be introduced. The prosecutor explained that the testimony given by JD2 was

consistent, so prior statements were not needed. Also, JD1’s version of events at the

second trial primarily came from the first trial’s reporter’s transcript of JD1’s testimony

being read into the record, which also did not require prior statements to be introduced.

The prosecutor believed it would be redundant to have the officers testify.

        Defense counsel stated the prosecutor did not provide notice that the prosecutor

did not intend to call the officers as witnesses. Defense counsel explained that he had

not subpoenaed the officers because he relied on a courtesy between the Riverside

County Public Defender’s Office and the Riverside County District Attorney’s Office,

which permitted defense counsel to not serve a second subpoena on officers that were

on the prosecution’s witness list. Defense counsel explained that the officers testified at

the first trial.

        The hearing on this issue took place during a break in defense counsel’s cross-

examination of JD2. Defense counsel argued that his cross-examination of JD2 was

based upon statements JD2 had made at the first trial, which were then impeached by

the officers at the first trial. Defense counsel asserted the prosecutor was “intentionally

deceptive” in choosing to not call the officers as witnesses, while keeping them on the

witness list, because the impeachment at the first trial “vitiated” JD2’s testimony.


                                              4
Defense counsel stated he would limit his cross-examination of JD2 based upon the new

knowledge that the officers would not be testifying.

       The trial court responded, “[Defense counsel], you could have had [sic]

subpoenaed them.” Defense counsel explained that he relied on the subpoena courtesy

between the two offices. The trial court responded, “I understand very clearly your

position with respect to what you believe is happening between the two offices, but the

fact is, is that you could have subpoenaed them.”

       D.     OFFICER CLEARY’S TESTIMONY—FIRST TRIAL

       The prosecutor subpoenaed Officer Cleary for the first trial. Defendant called

Officer Cleary as a witness at the first trial. Officer Cleary interviewed JD2 on April

27, 2013. JD2 told Officer Cleary he and JD1 went inside a bathroom with defendant.

JD2 said he and JD1 engaged in sexual intercourse with defendant. Specifically, JD2

said he engaged in vaginal intercourse with defendant.

       E.     OFFICER FLORES’S TESTIMONY—FIRST TRIAL

       The prosecutor subpoenaed Officer Flores for the first trial. Defendant called

Officer Flores as a witness at the first trial. Officer Flores interviewed JD1 on April 29,

2013. JD1 discussed being in defendant’s trailer with JD2 and defendant. While the

three were together, oral copulation occurred.




                                             5
                                      DISCUSSION

        Defendant contends her trial counsel rendered ineffective assistance by failing to

subpoena the officers for the second trial.

        “A defendant seeking to establish the incompetence of trial counsel must show

both that counsel’s performance was deficient and that this deficient performance

prejudiced the defendant’s case. [Citation.] In assessing the adequacy of counsel’s

performance, 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.” ’ ” (People v. McDermott (2002) 28 Cal.4th 946,

987.)

        “ ‘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.’ [Citation.] ‘ “[S]econd-guessing” is to be avoided.’ [Citation.] Stated

differently, the question is not what the ‘best lawyers would have done,’ nor ‘even what

most good lawyers would have done,’ but simply whether ‘some reasonable lawyer’

could have acted, in the circumstances, as defense counsel acted in the case at bar.

[Citation.] A defendant must show that [her] attorney’s performance fell below this

objective standard of reasonableness by a preponderance of the evidence.” (People v.

Jones (2010) 186 Cal.App.4th 216, 235.)




                                              6
       Reasonably relying on opposing counsel’s professional courtesy is effective

assistance, in particular where that courtesy has developed into a common custom and

practice. (See Harrington v. Richter (2011) 562 U.S. 86, 105 [“The question is whether

an attorney’s representation amounted to incompetence under ‘prevailing professional

norms,’ not whether it deviated from best practices or most common custom”]; see also

Com v. Alebord (2014) 467 Mass. 106, 114 [custom and practice were established,

counsel was not ineffective]; see also Oostburg State Bank v. United Sav. & Loan Assn.

(1985) 125 Wis.2d 224, 239-240 [“[W]hen considering a claim of excusable neglect, the

trial court may not consider attorney conduct, even if dilatory, which occurred when a

courtesy agreement was in place”].)

       Defendant’s trial counsel, A.C. Jones, said he relied on a professional courtesy

between the district attorney’s office and the public defender’s office permitting public

defense counsel to not serve a second subpoena on officers on the prosecution’s witness

list. Mr. Jones stated the courtesy had been in place “as long as I’ve been in the office.”

The officers testified at the first trial, and the prosecutor questioned them. The

prosecutor included the officers on his witness list for the second trial and gave no

indication that he had changed his mind about calling the officers until the second trial

was underway.

       The district attorney’s office and the public defender’s office are in litigation

with each other every day across the county. As a result, Mr. Jones, who works for the

public defender’s office, would be familiar with the district attorney’s office. Mr. Jones

stated the professional courtesy of not needing to serve a second subpoena had been the


                                             7
custom as long as he had been in the public defender’s office. Given Mr. Jones’s

familiarity with opposing counsel’s office and the apparent longstanding nature of the

courtesy, Mr. Jones could reasonably rely on the custom of not needing to serve a

second subpoena on the officers. In other words, a reasonable attorney in this

circumstances would have acted the same as Mr. Jones. Therefore, a deficient

performance has not been demonstrated.

       Defendant contends Mr. Jones’s reliance on the professional courtesy was not

reasonable because (1) no reasonable attorney relies upon opposing counsel to subpoena

beneficial witnesses; and (2) Mr. Jones had notice that the prosecution might not call the

officers as witnesses.

       Mr. Jones explained that the professional courtesy was in place for two reasons.

The first reason was to save taxpayers money. The second reason was to cause less

disruption to officers who may be off shift and/or sleeping when the subpoena is served.

Perhaps stated more succinctly, this professional courtesy, like all professional

courtesies between members of the bar, helps to create a more efficient system of

justice.

       Mr. Jones could reasonably rely on opposing counsel to subpoena the officers

because (1) Mr. Jones was familiar with the district attorney’s office; (2) the courtesy

had always been extended during the time Mr. Jones was at the public defender’s office;

and (3) there were good public policy reasons supporting the professional courtesy of

not sending redundant subpoenas to law enforcement officers.




                                             8
        In regard to defendant’s notice assertion, the following procedural history is

relevant: During pretrial discussions for the first trial, Mr. Jones expressed concern that

the People may not call JD1 to testify. Mr. Jones asserted that if JD1 did not testify,

then Mr. Jones would need a continuance to subpoena Officer Flores.2 The People

responded that they had already subpoenaed the officers. The following exchange

occurred:

        “The Court: You should have subpoenaed all the witnesses, both sides, whatever

witness you have since you announced ready awhile back.

        “Mr. Jones: Since the People did subpoena that witness, I ask the People make

that witness available for the defendant.

        “The Court: You subpoenaed that witness?

        “[Prosecutor]: Yes.

        “The Court: Then it’s not an issue.

        “Mr. Jones: I don’t want the situation where the People tell their subpoenaed

witness they don’t have to come. I’d ask the Court to hold the People’s subpoena to be

a Court subpoena and that witness made available to the defense.

        “The Court: Okay. [Prosecutor], do you have any objection to that? In other

words, don’t excuse your witnesses until the Court excuses them just in case you need

them.


        2  Mr. Jones said he would need to subpoena the officer who interviewed JD1,
i.e., Officer Flores. He later named the officer as Officer Cleary. We infer Mr. Jones
misspoke and meant to say Officer Flores because Officer Flores interviewed JD1.


                                              9
       “[Prosecutor]: There’s no objection. Over lunch, I’ll contact Officer Flores and

make sure that he’s available next week.”

       Defendant points to Mr. Jones’s statement, “I don’t want the situation where the

People tell their subpoenaed witness they don’t have to come.”

       Additionally, at the first trial, the defense called the officers to testify, not the

prosecutor. Based upon these two portions of the record, defendant reasons Mr. Jones

was on notice that (1) he could not rely on the prosecutor’s subpoenas; and (2) the

prosecutor was unlikely to call the officers as witnesses.

       Contrary to defendant’s position, the record supports the opposite conclusion. In

the first trial, Mr. Jones did not subpoena the officers. Despite that, Mr. Jones was able

to rely on the subpoenas that had been served by the prosecutor to call the officers as

defense witnesses. Additionally, the prosecutor volunteered to contact Officer Flores

during the lunch recess to ensure Officer Flores’s availability. This interaction prior to

the first trial reflects there were professional courtesies in place concerning officer

subpoenas. There is nothing in the manner in which the situation resolved that should

have notified Mr. Jones the subpoena courtesy had ended or would not be observed in

the second trial. Accordingly, we are not persuaded Mr. Jones was on notice that he

could not rely on the subpoena courtesy.




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                                      DISPOSITION

     The judgment is affirmed.

     CERTIFIED FOR PUBLICATION



                                                    MILLER
                                                             J.


We concur:


HOLLENHORST
                   Acting. P. J.


McKINSTER
                                 J.




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