Filed 12/18/13 P. v. Abadir CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO




THE PEOPLE,                                                              E052989

         Plaintiff and Respondent,                                       (Super.Ct.No. RIF143161)

v.                                                                       ORDER MODIFYING OPINION
                                                                         AND DENIAL OF PETITION
CHRISTIAN SAMIR ABADIR,                                                  FOR REHEARING

         Defendant and Appellant.                                        [NO CHANGE IN JUDGMENT]


         Appellant’s petition for rehearing filed December 16, 2013, is denied. The

opinion filed in this matter on December 5, 2013, is modified as follows:

         On page 3, the first full paragraph should read as follows:

         The trial court neither imposed nor struck the section 451.1, subdivision (a)(5),

enhancement on count 1. Accordingly, the case should be remanded for the limited

purpose of allowing the court an opportunity to exercise its discretion in this regard.

Additionally, as conceded by respondent, the trial court should have sentenced defendant

to one year the midterm, not three years, on count 2 for insurance fraud. (§§ 550, subd.



                                                             1
(a), and 1170.1, subd. (a).) Otherwise, we affirm the judgment.

      On page 24, the disposition should read:

      We remand for the limited purpose of allowing the trial court to exercise its

discretion to impose or strike the section 451, subdivision (a)(5), enhancement on count

1, and to correct the sentence on count 2 from three years to one year. Otherwise we

affirm the judgment.

      Except for this modification, the opinion remains unchanged. This modification

does not effect a change in the judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              KING
                                                                                           J.
We concur:


McKINSTER
                 Acting P.J.


MILLER
                          J.




                                            2
Filed 12/5/13 (unmodified version)

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO

THE PEOPLE,

         Plaintiff and Respondent,                                       E052989

v.                                                                       (Super.Ct.No. RIF143161)

CHRISTIAN SAMIR ABADIR,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Paul M. Bryant, Jr.,

Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice

pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions.

         Helios J. Hernandez, III; Mark D. Johnson, under appointment by the Court of

Appeal; and Christopher R. Wagner, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Vincent Lapietra, and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                     INTRODUCTION1

       Defendant Christian Samir Abadir hired two men to burn down his house. He

then filed claims against his homeowner’s insurance policy for the losses. Defendant was

charged with arson and related crimes.2 In his first trial, defendant testified and the jury

was unable to reach a verdict on the charges, although the majority voted in favor of

guilt. Defendant did not testify at his second trial and the jury convicted him.

       The trial court denied defendant’s motion for a new trial, which was based on

ineffective assistance of counsel and other grounds. The trial court sentenced defendant

to prison for eight years.

       On appeal, defendant contends the trial court erred in denying his new trial motion

because his trial counsel was ineffective when he discouraged defendant from testifying

at his second trial, as well as when he failed to communicate with him, to investigate the

case, and to move for a mistrial based on jury tampering. We conclude the trial court

properly exercised its discretion in denying the new trial motion because defendant failed

to establish that trial counsel’s performance was deficient or that any prejudice resulted



       1   All statutory references are to the Penal Code unless stated otherwise.

       2 The third amended information, removing three codefendants, charged
defendant with arson of an inhabited structure (§ 451, subd. (b); count 1), caused by a
device designed to accelerate the fire or delay ignition (§ 451.1, subd. (a)(5)), and for
pecuniary gain (§ 456, subd. (b)); possession of an incendiary device (§ 453, subd. (a);
count 2); insurance fraud (§ 550, subd. (a); count 3); and obstructing a police officer
(§ 148, subd. (a)(l); count 4).


                                              2
from the alleged deficiencies. In addition, defendant forfeited any new issue not raised

below in the new trial motion.

       The trial court neither imposed nor struck the section 451.1, subdivision (a)(5),

enhancement. Accordingly, the case should be remanded for the limited purpose of

allowing the court an opportunity to exercise its discretion in this regard. Otherwise, we

affirm the judgment.

                                             II

                        THE TRIAL AND POSTTRIAL MOTION

       The prosecution’s theory of the case was defendant was struggling financially and

planned the arson of his residence in order to claim the insurance money.3

       Around 2:30 a.m. on March 31, 2008, firefighters responded to a call regarding a

fire at defendant’s two-story residence in Temecula. After the fire was extinguished,

officials found one Bic-style lighter on the entryway adjacent to the front door, another

lighter in the kitchen and dining room area, and an empty gasoline can in the garage.

       Defendant was with his wife, Karine, at a hotel in Coronado. Defendant’s

neighbor and the fire chief talked to defendant on his cell phone. Defendant said he

could not come back immediately because he had been drinking.

A. Karine’s Testimony

       Karine testified at trial as part of a plea agreement, providing that she would be

permitted to plead guilty to insurance fraud and would be granted probation. Karine




                                             3
admitted that she and defendant were struggling financially and were using prescription

drugs and cocaine. Defendant proposed to torch the house to solve their financial

problems. They performed an inventory of their possessions for insurance purposes and

they put irreplaceable items in storage.

       Karine said that defendant paid Nicholas Hernandez and Clifford Gandy, two

employees of his home loan processing company, about $5,000 to set the fire. Gandy

was supposed to use gasoline to start the fire and Hernandez would pick him up

afterward. Defendant placed two containers of gasoline in the laundry room. Gandy was

supposed to set fire to the house after defendant and Karine left for Coronado.

       On the day of the fire, defendant picked up Gandy and brought him to the house.

Karine and defendant took clothing, toiletries, their dogs, defendant’s diploma, financial

records, and a painting of a dog to Coronado with them. They also took both their cars, a

Mercedes and a Lexus. On the way to Coronado, they stopped at Hernandez’s house and

gave Hernandez a walkie-talkie to communicate with Gandy. Early the next morning,

Gandy, Hernandez and Hernandez’s girlfriend arrived at defendant and Karine’s hotel

room and Gandy told them, “it was done.”

       Consistent with Karine's testimony, two neighbors testified that, before the fire,

they saw defendant loading items into a U-haul truck that was parked in front of his

house. In the rented storage unit, officials found a photograph album that contained



[footnote continued from previous page]
         3 We deny defendant’s request     for judicial notice filed December 17, 2012.
(Evid. Code, §§ 451, 452, & 459.)


                                                4
photographs of defendant and Karine; Karine’s baby book; a note pad with a handwritten

inventory of clothing; and a note pad containing an inventory of CDs, DVDs, and home

appliances with serial numbers.

       After the fire, the insurance company paid an advance of $20,000 which Karine

used to pay bills and go shopping at Macy’s.

B. Hernandez’s Testimony

       Hernandez claimed that Karine, not defendant, had approached him about burning

the house. Hernandez testified that defendant asked him to pick up Gandy and bring

some money to Coronado. Hernandez picked up Gandy at a location about two blocks

away from defendant’s house. He then drove his girlfriend and Gandy to Coronado.

Hernandez denied committing burglary and insurance fraud although he pleaded guilty to

those crimes.

C. Gandy’s Testimony

       Gandy confirmed that he, Hernandez, and Hernandez’s girlfriend drove to

Coronado. Gandy denied involvement in the arson but pleaded guilty to burglary and

signed a plea agreement, stating: “I entered [defendant’s house] with the intent to burn

the structure. I knew this house belonged to [defendant]. He gave me permission to enter

this dwelling house for the purposes of committing an arson. He told me he would file an

insurance claim for the loss.”

D. The Investigation

       In an interview a week after the fire, defendant told the arson investigator that he

and Karine had gone to Coronado to celebrate their wedding anniversary. Defendant


                                             5
learned about the fire during a telephone call from his alarm company around 2:15 a.m.

After Karine became hysterical, defendant called Hernandez and his girlfriend to come to

the hotel to comfort Karine. Defendant tried to drive home that night but he decided to

remain in Coronado after he fell asleep at a stop sign.

       In the Temecula hotel room where defendant and Karine were staying after they

returned from Coronado, officials found a painting of a dog, defendant’s college diploma,

and large amounts of men and women’s clothing. When officials interviewed Karine in

the hotel conference room, Karine refused to speak with defendant. Meanwhile,

defendant was in the hotel lobby, cussing and yelling at the front desk clerks because he

was not allowed to talk to his wife. Defendant eventually exited the lobby and ran

outside the hotel to bang on the conference room window, yelling, “Karine, I need to talk

to you.” The fire chief warned defendant to stop but defendant persisted and the fire

chief arrested him for obstruction.

       The arson investigator determined there were 12 separate fires in defendant’s

house. After ruling out electrical and other potential causes, the arson expert opined the

“fires were arson-caused through the use of ignitable liquids and ignitable liquid trailers.”

The arson investigator explained that gasoline was poured at the 12 different origin sites

which were connected with a trail of gasoline. Once the fire was started, the gasoline

acted “like a fuse on a firecracker,” carrying the fire to different flare-up points. The

parties stipulated that all samples obtained from defendant’s home tested positive for the

presence of gasoline.




                                              6
       The arson investigator searched Gandy and Hernandez’s residence in Murietta and

found $3,540 in the trunk of defendant’s Mercedes–parked in the garage–more money in

Hernandez’s bedroom, and some of the DVD’s that Karine had described. When Gandy

and Hernandez were in the back of a patrol car together after the search, Gandy said, “I

wonder if [defendant] gave up our names to save his ass[.]” Hernandez responded, “We

should just give him up.”4

E. Defendant’s Case

       Defendant’s counsel, C. Reginald Taylor, cross-examined Karine at length.

Defendant did not testify and Taylor did not introduce evidence. Instead, Taylor argued

that it was implausible that Gandy could have set the fire and that Gandy had denied he

had done so, as well as not recalling the details of his plea agreement. Gandy had a prior

strike and risked receiving a six-year sentence instead of a two-year sentence. Taylor

challenged Karine’s credibility because she had received a nine-month sentence and she

could not remember details about the couple’s finances. During cross-examination,

Hernandez denied his crimes and claimed he was pressured to take a plea agreement for

20 months.

F. The New Trial Motion and Ruling

       After trial, defendant’s new counsel filed a motion for new trial arguing that

Taylor was ineffective in failing to: (1) call witnesses, including defendant; (2)




       4   Defendant’s belated hearsay objection on appeal is not cognizable.


                                             7
investigate the case; (3) provide zealous representation; and (4) communicate with

defendant.

1. Taylor’s Testimony

       The court heard Taylor’s testimony about representing defendant at both trials.

       Before the first trial, Taylor explained to defendant that he had a constitutional

right to testify and he did not have to do so but that it was in defendant’s best interest to

testify so the jury could hear his side of the story rather than only Karine’s. Defendant

had a minimal criminal history. He had not confessed to the police and his statements to

the insurance investigator and Cal Fire were consistent with what defendant told Taylor.

Taylor warned defendant against testifying in the style of O.J. Simpson because the jury

would react unfavorably.5

       In the first trial, defendant testified on his own behalf about the state of his

finances and Taylor cross-examined Karine on the subject. Taylor also presented

evidence about defendant’s home alarm system.

       The first jury voted 10 to two in favor of guilt on the arson and insurance fraud

charges and 11 to one in favor of guilt on the obstruction charge. In posttrial interviews

the jurors described Karine as “America’s sweetheart, little young, blond-haired, blue-

eyed girl and here’s this guy, who comes in and corrupts this poor girl.” The jurors


       5  Taylor explained what he meant was that defendant should not follow the
example of O.J. Simpson in the book he wrote and “come across like if I did it, I would
have done it this way. . . . [¶] . . . gaming the system. . .” by saying, “‘why would I do
this? If I was going to commit arson and fraud, why would I do [this]? I would have
done it this way.’”


                                               8
thought defendant “was obnoxious; they thought he was kind of smarting off to the

District Attorney.” The jurors did not like defendant or find him credible. Taylor

summarized: “Suffice it to say, the jury’s impression of him was not positive at all. And

it--in my opinion, it was detrimental in our first trial. The jurors’ impression was very

detrimental.”

       Taylor further testified that he met with defendant at least two or three times for a

total of a couple of hours before the first trial. Between the first and second trial, Taylor

met with defendant in his office. The two spoke several times at court appearances. In

several conversations, defendant was indecisive about whether he should testify at the

second trial. Taylor advised him to wait and see how the second trial unfolded. Taylor’s

investigator also talked to defendant and tried to contact some witnesses from the

insurance company. The investigator did not talk to defendant’s parents. Taylor asked

for continuances so defendant could retain other counsel but defendant did not want to

waive time and he did not ask to replace Taylor. Defendant never criticized Taylor’s

representation.

       Taylor did not call any witnesses at the second trial. Taylor did not call

defendants’ parents or proposed character witnesses to testify because they did not

possess probative information. Taylor did not present any financial documents during

either trial and did not introduce any other documents during the second trial. Defendant

sent Taylor his bank records after the first trial and Taylor used the bank records to cross-

examine Karine. Karine did not appear credible because she could not remember




                                              9
anything about finances, including simple questions about whether they had money in

the bank.

       During a recess after the prosecution’s case-in-chief, Taylor reiterated to

defendant his concerns from the first trial about defendant being a poor witness who

volunteered unnecessary information, argued with the prosecutor during cross-

examination, and antagonized the jury. Taylor never instructed defendant not to testify

during the second trial and defendant never asked to testify.

2. Defendant’s Testimony

       Defendant contradicted Taylor on several points. Defendant testified that he never

met with Taylor outside of court before he testified at the first trial. He had only spoken

with Taylor for about 20 to 30 minutes when Taylor made two or three court appearances

on defendant’s behalf and he talked with Taylor during the first trial.

       Defendant asserted the first jury voted 11 to one in favor of guilt on the

obstruction charge and nine to three in favor of guilt on the felony counts. Taylor talked

with him for about two hours after the first trial, telling him the jurors thought he had

acted like a “smart ass, maybe being arrogant . . . .” Taylor also told defendant that he

wanted to conduct “extensive investigations” before the second trial.

       Defendant tried to meet with Taylor several times again before the second trial but

Taylor never responded to email, hand-delivered notes, cell phone calls, and messages

delivered by third parties. Taylor never contacted defendant’s list of potential witnesses,

including character witnesses. Defendant also could not meet with the defense

investigator without Taylor’s approval.


                                             10
       Defendant asserted that his bank statements showed an average deposit of $14,500

per month in his business account, more than what he had estimated during the first trial.

These documents were not introduced into evidence at trial or at the hearing on the new

trial motion. Defendant estimated his monthly expenditures were about $13,000 or

$14,000 a month. Defendant claimed he paid his bills on time: “The few bills that were

presented, when it was stated that some of the utilities had been cutoff or at times were in

default were incorrect.” Defendant also claimed his credit cards were paid in full before

the fire. Defendant admitted he was behind on his property taxes but he had not paid

because he was angry about a $500 late charge when his payment was less than eight

hours late.

       During the second trial, Taylor asked for a recess after the prosecution rested, took

defendant into a corridor, and told him, “‘I’m against putting you on the stand.’” “‘I do

not want you to pull an O.J.’” Defendant protested that he could refute the evidence.

Defendant asked Taylor to introduce his bank accounts to show that he was “not

financially hurt.” Defendant reminded Taylor of his advice during the first trial that it

was “‘imperative’” that he testify because it was Karine’s word against his. Taylor told

defendant Karine’s testimony was weak during the second trial. The two argued about

the relative credibility of Karine and defendant. Defendant nonetheless told him, “‘I

want to testify.’” Taylor replied, “‘We don't have time to discuss this any further. Let

me drive.’”

       Defendant was not happy with Taylor’s representation at the first trial but he “was

indigent.” He never objected during the second trial because he “wasn’t aware that [he]


                                             11
had that right.” During the second trial, he repeatedly complained about the quality of

Taylor’s representation but they also joked around and had an amicable relationship.

3. The Prosecutor’s Testimony

       The prosecutor testified that many exhibits showing the termination of defendant’s

credit by banks and credit companies were disclosed to the defense and presented as

exhibits at both trials. The prosecutor also identified at least 18 specific and major

inconsistencies in defendant’s testimony in the first trial which he intended to use in

cross-examining defendant.

4. Court’s Ruling

       After listening to argument, the court stated that it did not find defendant credible

and that it appeared defendant was happy with Taylor’s representation until he received

an adverse result. The court concluded, “I do not believe that Mr. Taylor’s representation

fell below the requisite standard, and I’ve seen no evidence put before me that would

cause me to believe that.” Accordingly, the court denied the motion.

                                             III

                      INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant urges the trial court abused its discretion in denying his new trial

motion based on ineffective assistance of counsel (IAC) because his counsel discouraged

him from testifying and failed to communicate with him, to investigate the case, and to

move for a mistrial based on jury tampering. We conclude defendant failed to establish

that counsel’s performance was deficient or prejudicial and that defendant forfeited the

remaining claims, which also lack merit.


                                             12
A. Legal Principles

       A trial court has broad discretion in ruling on a new trial motion: “‘“The

determination of a motion for a new trial rests so completely within the court’s discretion

that its action will not be disturbed unless a manifest and unmistakable abuse of

discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.)

       If defendant contends he received IAC at trial, “[t]he trial judge is the one best

situated to determine the competency of defendant’s trial counsel. Where, as here,

defendant is represented by different counsel at the motion for a new trial and the issue is

called to the trial court’s attention, the trial judge’s decision is especially entitled to great

weight and [a reviewing court must] defer to his fact finding power.” (People v. Wallin

(1981) 124 Cal.App.3d 479, 483; People v. Fosselman (1983) 33 Cal.3d 572, 582.)

       For similar reasons, the standard for reviewing counsel’s performance is also

deferential. (People v. Holt (1997) 15 Cal.4th 619, 703.) “Unlike a later reviewing court,

the attorney observed the relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the judge.” (Harrington v.

Richter (2011) 562 U.S. __, __ [131 S.Ct. 770, 788] (Harrington).) The question is

whether an attorney’s representation amounted to incompetence under “‘prevailing

professional norms.’” (Id. at p. 788.)

       In considering a claim that trial counsel provided ineffective assistance, a

reviewing court “presume[s] that counsel rendered adequate assistance and exercised

reasonable professional judgment in making significant trial decisions.” (People v. Holt,

supra, 15 Cal.4th at p. 703, citing Strickland v. Washington (1984) 466 U.S. 668, 690


                                               13
[104 S.Ct. 2052, 80 L.Ed.2d 674].) Consequently, a defendant bears the burden of

establishing: “‘(1) that counsel’s performance fell below an objective standard of

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

unprofessional errors, a determination more favorable to defendant would have

resulted.’” (Holt, at p. 703.) Counsel’s errors must be so serious as to deprive the

defendant of a fair trial. (Harrington, supra, 131 S.Ct. at p. 703; Strickland, at p. 687.)

A claim of IAC may be resolved based on lack of prejudice alone. (Strickland, at p. 697;

In re Alvernaz (1992) 2 Cal.4th 924, 945.) Defendant did not come close to surmounting

Strickland’s high bar in this case. (Harrington, at p. 703.)

B. Taylor’s Advice About Testifying

       Taylor testified that he never told defendant that he could not testify or that he did

not want him to testify. The trial court expressly found defendant’s contrary testimony

was not credible. Because substantial evidence supports the trial court’s credibility

determination, this court must accept it. (People v. Callahan (2004) 124 Cal.App.4th

198, 235-236.) The record also supports that Taylor properly advised defendant about

not testifying in the second trial. Taylor candidly warned defendant that he had been a

poor witness and the jury had not liked him or believed him. Taylor also told defendant

that, although he did not think Karine was as strong a witness during the second trial, the

jury would be comparing the two and defendant might not fare well in comparison.

Furthermore, the prosecution was threatening to expose the inconsistencies in defendant’s

statements and testimony. In view of the foregoing, counsel was not ineffective in




                                             14
advising defendant to wait until after the prosecution’s case-in-chief to make a definitive

decision about whether he wanted to testify.

       In People v. Andrade (2000) 79 Cal.App.4th 651 and People v. Callahan, supra,

124 Cal.App.4th 198, appellate courts did not find an abuse of discretion in granting new

trials based on counsel’s ineffective advice to the defendants not to testify. (Andrade, at

pp. 660-661; Callahan, at p. 214.) In Andrade, the court observed the defendant had no

substantial criminal history, would not have been subject to substantial impeachment, and

was the only person who could provide an explanation for his presence at two different

homes. Without the defendant’s testimony, the jury had no alternative but to accept the

prosecution’s theory that the defendant entered the homes to commit rape. (Andrade, at

pp. 660-661.) In Callahan, the appellate court noted the trial court found the defendant’s

testimony at the hearing on the new trial motion was more favorable than the piecemeal

presentation of her pretrial statements to the police. The appellate court also noted the

trial court had the opportunity to view the defendant’s demeanor on the stand and had

concluded that the defendant’s testimony “would have placed her in a better light” than

her tape recorded statements that were played for the jury. (Callahan, at p. 214.) The

appellate court concluded that, the trial court implicitly found that the defendant would

make a good appearance on the stand. (Ibid.)

       The trial court here, unlike the courts in Andrade and Callahan, did not find

defendant to be credible. Additionally, Taylor observed defendant’s poor performance in

the first trial and the jury’s response to him. The prosecutor also planned to impeach

defendant based on his inconsistencies and drug use. Finally, the jury heard defendant’s


                                             15
statements about the fire during the arson investigator’s testimony. Taylor argued, based

on Karine’s testimony on cross-examination, that defendant and his wife were not

struggling financially at the time of the fire. Andrade and Callahan do not support

defendant’s argument that the trial court abused its discretion in denying defendant’s new

trial motion based on Taylor’s advice about whether he should testify.

       Defendant also argues Taylor should have presented another witness but defendant

has not identified another witness or what testimony another witness would have

provided. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1093.) Finally, defendant’s

claim fails because there is no reasonable probability that he would have received a more

favorable result had he testified in his own defense based on his performance as a

witness, the numerous inconsistencies, and the overwhelming evidence of defendant’s

guilt as detailed comprehensively above. Accordingly, defendant has failed to establish

he was prejudiced by Taylor’s advice about testifying at the second trial.

C. Taylor’s Communications with Defendant and Investigation

       Taylor testified he met with defendant before the first trial for about two hours in

total. Between the first and second trial, they met in Taylor’s office and spoke in court.

The trial court found defendant was not credible. Defendant has not shown that his

communication with Taylor was constitutionally deficient or that he was prejudiced by

the lack of additional communication. (United States v. Rogers (9th Cir. 1985) 769 F.2d

1418, 1425) [no ineffectiveness without a showing of what deficient consultation

missed].)




                                             16
       Defense counsel has a duty to make a reasonable investigation or to make a

reasonable decision that a particular investigation was unnecessary. (Strickland v.

Washington, supra, 466 U.S. at pp. 690-691; In re Andrews (2002) 28 Cal.4th 1234,

1254.) A reviewing court considers the objective reasonableness of the decision in light

of all the circumstances, under the prevailing norms. (Wiggins v. Smith (2003) 539 U.S.

510, 521-523.) The court applies “a ‘heavy measure of deference to counsel’s

judgments.’” (Rompilla v. Beard (2005) 545 U.S. 374, 381.) The court considers the

known evidence and also whether the known evidence would lead a reasonable attorney

to investigate further. (Wiggins, at p. 527.)

       Defendant complains Taylor had only “sparse” communication with him and

directed his investigator to interview only defendant. The record shows that Taylor

communicated sufficiently with defendant and that the investigator also attempted to

contact some witnesses from the insurance company. Taylor considered and rejected

using defendant’s parents and his proposed character witnesses. Defendant did not

identify any additional witnesses or their proposed testimony. Accordingly, his claim

fails. (People v. Beasley, supra, 105 Cal.App.4th at p. 1093.)

       Defendant also asserts that, if Taylor had interviewed his parents he would have

learned that they provided defendant with financial support, showing he was financially

stable. “Whether to call certain witnesses is . . . a matter of trial tactics, unless the

decision results from unreasonable failure to investigate.” (People v. Bolin (1998) 18

Cal.4th 297, 334.) As noted, however, Taylor decided not to call the parents as

witnesses, although he knew they provided financial support, because the parents did not


                                                17
have any probative information about what happened. Taylor’s decision not to call the

parents was a reasonable trial tactic and, for the reasons discussed earlier, no prejudice

ensued.

       Defendant also faults Taylor for failing to investigate and present evidence

showing that he had no financial motive to commit arson, in particular, that defendant

had deposited more than $115,000 into his business account over an eight-month period.6

Taylor did not introduce the bank statements but he used them to elicit testimony from

Karine that she could not remember any details about their finances, including whether

they were behind on any bills around the time of the fire, whether the business had profits

or losses, and whether the balances in their checking, savings and business accounts were

positive or negative. Karine finally believed they were only a couple of weeks behind in

their mortgage payment and had not had any utilities shut off for nonpayment. Taylor

then argued during closing that Karine’s testimony that she and defendant were not

struggling financially was not credible.

       Taylor’s decision to rely on the weaknesses in Karine’s testimony rather than

present the bank statements was a reasonable tactical choice. Furthermore, in support of

his new trial motion, defendant testified that he was operating on a very small financial

margin, apparently spending most if not all he earned. Given the overwhelming evidence

of guilt, it is not reasonably probable that defendant would have received a more


       6 The bank records are not “newly discovered evidence” as defendant attempts to
argue in his reply brief. Defendant repeats his arguments about the bank records in his
supplemental opening brief.


                                             18
favorable result if the bank records were introduced at the second trial or had been

presented in the new trial motion, even if the court mused they might have been relevant.

The records should not be made the subject of a writ petition because they do not

constitute newly-discovered evidence.

       Defendant also challenges Taylor for not discovering a video showing entry to and

from the storage unit and failing to investigate the truth of Karine’s statement to the fire

chief that defendant purchased “fire implements” from the Wal-Mart and 7-Eleven in

Temecula. Defendant claims an investigator for defendant’s parents found a Walmart

receipt for March 30, 2008, indicating that a credit card in Karine Abadir’s name was

used to purchase Zippo fuel and lighters. A Zippo lighter was found at the scene and

entered into evidence.

       First, defendant’s argument is not based on evidence in the record, it was not

raised in the new trial motion, and has been waived. (People v. Verdugo (2010) 50

Cal.4th 263, 309.) This claim of error is also not cognizable on appeal because it relies

on evidence outside the record, a purported investigation that occurred more than six

months after the court denied the new trial motion. (People v. Williams (1988) 44 Cal.3d

883, 917, fn. 12.) Next, Karine may have purchased Zippo fuel and lighters even if

defendant purchased the “fire implements.” Third, the assertion that videotapes of the

storage unit would have helped the defense is entirely speculative. Finally, defendant did

not tell Taylor that he did not buy any lighters or enter the storage facility. Counsel is

“entitled to formulate a strategy that [is] reasonable at the time and to balance limited

resources in accord with effective trial tactics and strategies.” (Harrington, supra, 131


                                             19
S.Ct. at p. 789.) Finally, in light of the overwhelming evidence of defendant’s guilt, it is

not reasonably probable he would have received a more favorable result if such evidence

had been uncovered and presented at trial.

D. Other Claims About Taylor

       By failing to raise them in his motion for new trial, defendant has forfeited other

claims, such as Taylor not arguing that an arsonist broke into defendant’s house based on

the evidence that (1) window glass was found inside the downstairs home office, and (2)

the neighbor’s wife heard a big bang about 30 minutes before the fire. (People v.

Verdugo, supra, 50 Ca1.4th at p. 309.) In any event, the arson investigator opined the

downstairs window broke during the fire. As to the neighbor’s wife, the neighbor

testified that he and his wife both awoke to a popping sound and, when he looked out the

window, he saw flames coming from the house. Additionally, Gandy pled guilty to

entering defendant’s house with the intent to commit arson, and the evidence of

defendant’s guilt was overwhelming.

       Taylor argued the unreasonableness of the People’s theory that Gandy remained

motionless in the house from 7:00 p.m. until 2:00 a.m. the next day, when the motion

detector alarm went off inside the house, and pointed out that the arson investigator’s

investigation of the area around the broken window was inadequate. In view of these

circumstances, Taylor was not deficient in failing to argue that the arsonist broke into the

house and defendant was not prejudiced by the absence of such an argument.




                                             20
       Finally, on the issue of whether Taylor should have obtained full transcripts from

the first trial, Taylor testified that defendant did not want to waive time. Defendant has

not established any prejudice on this point.

E. Jury Tampering

       Defendant’s claim of “prosecutorial jury tampering” was also forfeited. (People v.

Verdugo, supra, 50 Cal.4th at p. 309.) In any event, the record contradicts his claim.

       After a recess, the court announced outside of the jury’s presence that a victim

witness advocate from the district attorney’s office had overheard comments by one of

the jurors. The advocate then testified that, when she was out in the hallway, she saw

Juror No. 10 point at his head and state, “What is it with D.A.s? . . . Do they have a hole

drilled in their head?” A female juror replied it could be a frontal lobotomy. Juror No.

10 said, “No.” The victim advocate did not know whether the jurors were talking about

the prosecutor conducting examination or the prosecutor testifying as a witness.

       The court referred to the advocate as a “spy” but then clarified there was nothing

wrong with her assisting Hernandez when he testified. Juror No. 10 explained that he

had made his remark after he noticed both prosecutors had indentations in their

foreheads, causing him to wonder if it was a job requirement. Juror No. 10 said his

remark was a poor attempt at humor and he denied that had he formed any opinion about

the case. The court admonished Juror No. 10 not to discuss the case and not to mention

their conversation to the other jurors. The parties and the court agreed the juror did not

need to be excused.




                                               21
       Juror No. 10’s comment may have been ill-advised but it was innocuous and did

not indicate Juror No. 10 had prejudged the case or was biased in anyway. No prejudice

to defendant was demonstrated. Because the court and both lawyers agreed there was no

basis for excusing Juror No. 10, there is no reasonable probability that the trial court

would have granted a mistrial motion. Taylor was not ineffective in failing to make a

meritless objection. (People v. Jones (1998) 17 Cal.4th 279, 309.)

       Defendant rather improbably conjectures that, after the exchange with the trial

court, Juror No. 10 was “aware that a D.A. spy might be nearby at any time, and the

potential effect of this situation on that juror’s mind calls into question the subsequent

decision making process on the part of that juror.” There is no support whatsoever for

this speculation.

       Defendant also asserts that the prosecutor knew or should have known that placing

a “spy” among the jurors could give him the “thin edge they needed to push the second

jury towards the prosecution side, an edge gained by juror intimidation.” But the

advocate was assigned to watch and assist Hernandez, not to eavesdrop. Juror No. 10

was not told that the advocate was the source of the information about his comment.

Therefore, he could not have felt intimidated by her. Accordingly, any mistrial motion

would have been meritless.

       Any motion to dismiss the case under the state double jeopardy clause would also

have failed because that clause bars retrial following the grant of a defense mistrial

motion in two circumstances not applicable here: “(1) when the prosecution intentionally

commits misconduct for the purpose of triggering a mistrial, and also (2) when the


                                             22
prosecution, believing in view of events that unfold during an ongoing trial that the

defendant is likely to secure an acquittal at that trial in the absence of misconduct,

intentionally and knowingly commits misconduct in order to thwart such an acquittal–and

a court, reviewing the circumstances as of the time of the misconduct, determines that

from an objective perspective, the prosecutor’s misconduct in fact deprived the defendant

of a reasonable prospect of an acquittal.” (People v. Batts (2003) 30 Cal.4th 660, 695,

italics added.) Thus, this basis for defendant’s IAC claim, like the other grounds, fails.

                                              IV

  REMAND TO IMPOSE OR STRIKE THE SECTION 451.1, SUBDIVISION (A)(5)

                                     ENHANCEMENT

         During sentencing, the trial court twice mentioned staying the section 451.1,

subdivision (a)(5), enhancement, but the trial court did not stay, strike or impose sentence

on it.

         Section 451.1, subdivision (a), provides: “Notwithstanding any other law, any

person who is convicted of a felony violation of Section 451 shall be punished by a three-

, four-, or five-year enhancement if one or more of the following circumstances is found

true . . . .” A trial court has authority under section 1385 to strike a section 451.1

enhancement. (People v. Wilson (2002) 95 Cal.App.4th 198, 203.) Thus, a trial court

must either impose or strike a section 451.1 enhancement. “‘The failure to impose or

strike an enhancement is a legally unauthorized sentence subject to correction for the first

time on appeal.’” (People v. Flores (2005) 129 Cal.App.4th 174, 187-188, quoting

People v. Bradley (1998) 64 Cal.App.4th 386, 391; People v. Scott (1994) 9 Cal.4th 331,


                                              23
354.) Accordingly, we remand the case to allow the court an opportunity to impose a

term on the enhancement or strike it “in the furtherance of justice . . . .” (§ 1385, subd.

(c)(1).)

                                              V

                                       DISPOSITION

       We remand for the limited purpose of allowing the trial court to exercise its

discretion to impose or strike the section 451.1, subdivision (a)(5) enhancement in count

1. Otherwise we affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 KING
                                                                                              J.

We concur:


McKINSTER
                 Acting P. J.


MILLER
                           J.




                                             24
