Opinion
A165627
03-07-2024
THE PEOPLE, Plaintiff and Respondent, v. RICHARD AVERY DOREY, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CR2000414)
TUCHER, P. J.
Richard Avery Dorey, Jr. appeals from a judgment entered upon a jury verdict finding him guilty of several offenses arising out of an incident of domestic violence. He contends the jury committed misconduct and he received ineffective assistance of counsel. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background of Dorey's Relationship with Doe
Dorey and Jane Doe were in a romantic relationship from 2010 to 2019, and they have two children together. The couple had a history of domestic violence, including physical assaults. In April 2011, Dorey and Doe argued while having dinner with friends at a restaurant. Dorey left. Later, when one of the friends was dropping Doe off at her house, Dorey drove into the friend's car twice, then drove away. He was convicted of assault with a deadly weapon in connection with this incident and granted five years of probation.
In 2013, less than two weeks after their first child was born, Dorey hit Doe in the head or face and was arrested for domestic violence. He admitted the charge, and a result of the incident, he attended domestic violence classes. Three years later, in 2016, Dorey hit Doe in the mouth after an argument, causing a bloody lip.
Doe's mother, Robin, obtained a restraining order against Dorey in 2016 and renewed it in 2019. The order protected Robin and other family members who lived with her, but it did not protect Doe or the couple's children.
In the interest of privacy, we refer to Doe's mother by her first name, intending no disrespect.
In March 2019, defendant again hit Doe in the head, and this time she "got physical back," putting her hands on his throat. She left the couple's home with the children and moved in with Robin, taking the couple's van with her. After Doe left, Dorey tried to take the van back, claiming it belonged to him.
II. The Events of November 9, 2019
A. Doe's Testimony
At around noon on November 9, 2019, Dorey went to Robin's home. He was angry because Doe had been out the previous evening. He yelled and kicked the front door repeatedly, damaging the door frame. Doe left the apartment with their two children to go to a neighbor's house, then called the police. Dorey left before police arrived.
Dorey texted and called Doe repeatedly that evening. At some point, he told her he was up the street from Robin's house. He asked her to come out and talk with him, but she declined. Dorey then sent a text message threatening to kill himself on the front porch so their children could see. Doe was frightened and agreed to meet him outside.
Doe approached Dorey's truck and opened the passenger side door, and he told her to get in. She refused and said she was afraid, but he assured her he would not hurt her. Doe got in the truck, and Dorey immediately drove away. He was upset, asking her who she had been with the previous evening and accusing her of embarrassing the children.
As they drove, according to Doe, Dorey hit her with the back of his hand in the left eye, causing a black eye that lasted for weeks. He opened his pocketknife and swung it around while telling her she was not going home to her children. Doe repeatedly asked Dorey to let her out of the truck, but he told her," 'You are not getting out,'" and he threatened to kill them both that night.
Dorey was driving at least 80 miles per hour at times. Doe was frightened because of the knife, because of defendant's threats, because of the speed at which he was driving, and because the road was next to a cliff. At some point, the truck slowed to about 30 miles per hour, and Doe "took that opportunity" and jumped out, believing she had "no other choice."
Doe suffered several broken ribs, a collapsed lung, a laceration to the head, pavement dermatitis on her right leg, a crushed right foot, and a broken hip and pelvis. She underwent surgery and was in the hospital for nearly two weeks. After going home, her dermatitis became infected, and she needed treatment at a second hospital.
On December 10, 2019, while Doe was at the second hospital, Officer Jeff Keller interviewed her. Doe described the incident and her injuries, and she drew Keller's attention to her eye, which she described as still healing after defendant punched her.
B. Defendant's Testimony
Testifying in his own defense, Dorey offered a starkly different story about what happened that evening. He went to Robin's house because he wanted to discuss with Doe the van's ownership, their children, and moving on with different partners. He denied thinking it was any of his "business" or "concern" that Doe went out the night before. He denied threatening suicide in front of Robin's house and contended Doe simply agreed to enter his truck. Dorey described the conversation inside the truck at first as "normal," but said it devolved into an argument about Dorey's relationship with his new girlfriend, which Doe said was disrespectful to the children. Doe became upset, and began to cry and scream, and Dorey became upset in turn and slapped the steering wheel. As they were approaching a highway on-ramp at around 40 miles an hour, Doe abruptly said," 'I need to get out right now,'" and she opened the door and jumped out of the truck.
Dorey denied striking Doe in the eye, and he did not recall having a knife in the car that night. He denied driving at excessive speeds, and he thought his truck had a factory device preventing it from surpassing 78 or 80 miles per hour, so he could not have reached 90 miles per hour.
III. Other Domestic Violence Evidence
In addition to the evidence of Dorey's earlier violence aimed at Doe, the prosecution introduced evidence of an incident of domestic violence Dorey committed against his then-current girlfriend, A.R., in June 2021, shortly after the birth of their child. According to A.R.'s testimony, she and Dorey had an argument after she found text messages from another woman in his phone. The next day, she went to the emergency room and reported that Dorey had raised his fist and struck her in the face multiple times, tackled her to the ground, and wrestled with her. At trial, however, A.R. testified instead she fell on the stairs and hit her face while leaving the house after their fight.
At trial, the prosecution called Lynne Soderberg, an analyst with the District Attorney's domestic violence team, as an expert on domestic violence. She testified about a pattern of "behaviors and tactics" typical of domestic batterers, which she referred to as the "power and control wheel." This pattern may include economic control, coercion, isolation, the manipulation of children, minimizing behavior, and victim blaming. Soderberg described three phases in the cycle of violence. First is the "tension building phase." Next is the assaultive phase, when battering occurs. Finally, there is the remorse phase, when the batterer apologizes and promises the assaultive behavior will never happen again. The relationship goes back to normal, and the cycle of violence starts over.
Soderberg testified that victims display a wide range of emotions regarding their abusers. They are often protective of their abusers, take the blame for the abuse, and minimize the violence. People often stay in abusive relationships because they love and depend on the perpetrator, both emotionally and financially, and they leave permanently only after multiple attempts.
IV. Procedural History
Dorey was charged with kidnapping (Pen. Code, § 207, subd. (a); count 1), injuring a former cohabitant (§ 273.5, subd. (a); count 2), felony criminal threats (§ 422; count 3), misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 4), and misdemeanor violation of a domestic relations court order (§ 273.6, subd. (a); count 5). The jury found Dorey guilty on all counts.
All statutory references are to the Penal Code.
Dorey filed a motion for a new trial on the grounds of jury misconduct, ineffective assistance of counsel, and instructional error. The trial court denied the motion.
The court imposed a midterm of five years for kidnapping (§§ 207, subd. (a), 208, subd. (a)) and concurrent terms of three years for injuring a former cohabitant (§ 273.5, subd. (a)) and two years for criminal threats (§ 422; see § 18, subd. (a)). The court then suspended execution of sentence and placed Dorey on probation for three years. As to the remaining misdemeanor counts, the court committed him to jail for 364 days, with credit for 364 days of time served. This timely appeal ensued.
DISCUSSION
I. Jury Misconduct
Dorey contends two jurors committed prejudicial misconduct, and as a result his felony convictions must be reversed.
Dorey does not challenge his misdemeanor convictions.
a. General Legal Principles and Standard of Review
"[A] court generally undertakes a three-step inquiry in ruling on a new trial motion based on juror misconduct. First, the court determines whether affidavits supporting the motion are admissible." (Stokes v. Muschinske (2019) 34 Cal.App.5th 45, 52 (Stokes).) The Attorney General does not dispute that the first step of this inquiry is satisfied; he does not challenge the two-page declaration of one of the jurors, Juror 8, which is the sole evidence supporting appellant's motion. We focus, then, on the other two steps.
Second, "the court determines whether the facts establish misconduct." (Stokes, supra, 34 Cal.App.5th at p. 52.) When faced with an allegation that a juror was biased, we set aside the verdict only if we find there was" 'a substantial likelihood that a juror was actually biased.'" (People v. Hensley (2014) 59 Cal.4th 788, 824 (Hensley).) In carrying out this inquiry, we are mindful of the "need to protect the sanctity of jury deliberations." (People v. Cleveland (2001) 25 Cal.4th 466, 475 (Cleveland).) Protecting jury expression in deliberations is important because "[j]urors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations." (Id. at p. 476.) We also recognize that"' "[j]urors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic." '" (People v. Tran (2022) 13 Cal.5th 1169, 1231 (Tran).)
Third, "the court determines whether any misconduct resulted in prejudice." (Stokes, supra, 34 Cal.App.5th at p. 52.) "Juror misconduct . . . generally raises a rebuttable presumption of juror bias and that the defendant suffered prejudice." (People v. Brooks (2017) 3 Cal.5th 1, 98.) "The presumption of prejudice may be rebutted by an affirmative evidentiary showing 'or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.'" (In re Carpenter (1995) 9 Cal.4th 634, 657.)
In general, a trial court's decision whether to retain or discharge a juror is reviewed for an abuse of discretion. (People v. Ray (1996) 13 Cal.4th 313, 343.) We do not presume bias, and do not reverse on this ground unless the juror's inability to perform his or her functions is shown to be a" 'demonstrable reality.'" (People v. Martinez (2010) 47 Cal.4th 911, 943 (Martinez).)
Similarly, denial of a motion for new trial is normally reviewed for abuse of discretion. (People v. Peterson (2020) 10 Cal.5th 409, 467 (Peterson).) However, where a motion for new trial "rests on allegations of juror misconduct and the facts underlying those allegations are essentially undisputed, we review de novo whether misconduct occurred." (Ibid.) To the extent the trial court's decision rests on credibility determinations or findings of fact, though, we accept those determinations if supported by substantial evidence. (Id. at p. 472; accord, Tran, supra, 13 Cal.5th at p. 1231.)
b. Juror 11 i. Factual Background
Before the jury began its deliberations, one of the jurors, Juror 8, raised a complaint about the behavior of another juror, Juror 11. The trial court spoke with the two jurors separately.
Juror 8 told the court that two weeks earlier, Juror 11 had laughed as a witness testified, and on another occasion, Juror 11 had laughed and said that "that was total bullshit." Juror 8 said this made her "very uncomfortable," but she did not think it would affect her personal decisionmaking ability and she could still deliberate with Juror 11.
When questioned, Juror 11 acknowledged he had been forming preliminary opinions and making comments under his breath during testimony. The trial court then asked whether he could, "without having made a final decision," "deliberate with the facts and the evidence as [] presented to [him]." Juror 11 replied, "I've never done this before, but I think so. I don't have an opinion, not set in stone yet." Although he said he was "leaning one way," he assured the court he was willing to discuss his views and listen to the opinions of the other jurors, and he reiterated that he had not formed a firm opinion. Acknowledging how much was at stake in the trial, he said that he had an open mind and that he would be listening more than talking. The court retained Juror 11.
In his motion for a new trial, Dorey attached a declaration by Juror 8 stating Juror 11 "laughed out loud throughout testimony and said 'bullshit' during the defense closing argument."
ii. Analysis
A trial court may discharge a juror and replace him or her with an alternate if, upon a showing of good cause, the court finds the juror is "unable to perform his or her duty." (§ 1089; Cleveland, supra, 25 Cal.4th at p. 474.) This remedy is essential because "[a]n accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is' "capable and willing to decide the case solely on the evidence before it." '" (In re Hamilton (1999) 20 Cal.4th 273, 293-294.)
A showing of juror misconduct that raises a substantial likelihood of actual bias requires reversal of a judgment. (People v. Weatherton (2014) 59 Cal.4th 589, 590.)" 'Actual bias' in this context is defined as 'the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.' [Citations.] . . . . 'Grounds for . . . discharge of a juror may be established by his statements or conduct, including events which occur during jury deliberations and are reported by fellow panelists.'" (People v. Nesler (1997) 16 Cal.4th 561, 581 (Nesler).) For instance, prejudicial misconduct was shown in Weatherton where, "long before the prosecution rested its case, [a juror] conveyed a belief in defendant's guilt," and he "told jurors, both before and during deliberations, that defendant deserved the death penalty, indicating that his mind was made up regarding guilt." (Weatherton, at p. 599; see Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 794 [upholding finding of misconduct where there was evidence juror said she made up her mind during second week of trial].)
Nevertheless, "[a] juror who holds a preliminary view that a party's case is weak does not violate the court's instructions so long as his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions expressed during deliberations." (People v. Allen and Johnson (2011) 53 Cal.4th 60, 73; see People v. Ledesma (2006) 39 Cal.4th 641, 729 ["[I]t would be entirely unrealistic to expect jurors not to think about the case during the trial and when at home"].) And in another context, our high court has explained that, although jurors' assurances of impartiality" 'cannot be dispositive of the accused's rights,'" we will not disturb a trial court's acceptance of those assurances without a sound basis. (Peterson, supra, 10 Cal.5th at p. 442 [challenge based on extensive pretrial publicity].)
An illustration of these rules is found in Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260 (Bormann). There, a juror prepared a statement or notes about her view of the evidence over the weekend, at home. (Id. at p. 262.) She later read those notes to the other jurors during deliberation. (Ibid.) The trial court denied defendant's motion for a new trial for jury misconduct. (Ibid.) The Court of Appeal agreed there was no misconduct and affirmed, explaining that there was no evidence the juror consulted any outside source in preparing her statement, that the notations were the product of her own thought processes and the evidence, and that there was no indication she refused to deliberate with the rest of the jury. (Id. at pp. 262264.)
Even in light of the additional evidence in support of the motion for a new trial, this record shows neither a substantial likelihood that Juror 11 was actually biased nor an abuse of discretion in retaining him. (See Hensley, supra, 59 Cal.4th at p. 824.) Although it is evident Juror 11 was forming preliminary opinions before deliberations began and he acknowledged he was leaning one way, he also said his view was not fixed. (See Bormann, supra, 56 Cal.App.4th at pp. 262-264 [no misconduct by juror who composed her thoughts outside deliberation room].) He assured the court that he had an open mind and that he would deliberate with the other jurors and listen to their views, and he recognized how much was at stake in the case. The trial court had the opportunity to observe his demeanor and evaluate his credibility, and, on this record, it could reasonably accept his assurances. Dorey has not shown as a" 'demonstrable reality'" (Martinez, supra, 47 Cal.4th at p. 943) that Juror 11 was unable to" 'act[] with entire impartiality, and without prejudice to the substantial rights of any party.'" (Nesler, supra, 16 Cal.4th at p. 581.) It would have been preferable for Juror 11 to have kept his tentative views to himself, but we must reject appellant's argument that his laughter and quiet commentary amounted to juror misconduct.
c. Child Welfare Services Juror
i. CWS Juror's Use of Her Own Expertise on Race
1. Factual Background
Dorey's motion for new trial asserted that a second juror had also committed misconduct. Juror 8's declaration stated that the second juror identified herself as a Child Welfare Services employee (CWS Juror). The CWS Juror told Juror 8 that due to Juror 8's race, "[her] opinion of [] Doe's testimony was not valid." Juror 8 wrote that the CWS Juror "gave specific examples of being targeted based on her race and established herself as the expert on race in the deliberation room."
The motion for a new trial described Juror 8 as Caucasian and both Doe and the CWS Juror as women of color, without providing more specific information about their racial identity.
Juror 8's declaration also said she was told to" 'stop doing defense counsel's job'" when she pointed out inconsistencies in Doe's statements. The declaration did not disclose who said this, but offered this conclusion: Juror 8 "was not free to participate in deliberations because [she] was accused of being biased by the other juror/s." Dorey contends the CWS Juror's comments show she was biased and engaged in misconduct during deliberations.
2. Analysis
"A jury's verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters." (People v. Leonard (2007) 40 Cal.4th 1370, 1414 (Leonard).) It is improper for the jury to consider either party's race in rendering a civil or criminal verdict. (See Tapia v. Barker (1984) 160 Cal.App.3d 761, 765 [reversing a verdict because deliberating jurors made racist remarks about the Mexican-born plaintiff]; see also People v. Wilson (2008) 44 Cal.4th 758, 831 (Wilson) ["A juror whose personal view was that African-American defendants never should, or always should, receive the death penalty commits clear misconduct, both by not considering the particular facts of the case and by making the penalty decision based on racial bias"]; § 745, subd. (a).)
However, "for a juror to interpret evidence based on his or her own life experiences is not misconduct." (Wilson, supra, 44 Cal.4th at p. 830.) In Wilson, our high court considered whether the trial court erred in discharging the single African-American juror (Juror 5), who was the lone holdout against a death sentence, in the penalty phase of the trial of an African-American defendant. (Id. at pp. 813-814.) Juror 5 said during deliberations that his own experience as an African-American father gave him insight into the dysfunctional family dynamics and harsh circumstances in which the defendant was raised. (Ibid.) He also told his fellow jurors,"' "You can't understand [the relationship between a Black father and his son]-you['re] not Black." '" (Id. at p. 815.) Some jurors complained that Juror 5 was taking race into consideration, and the trial court discharged the juror, finding he was not capable of disentangling the permissible and impermissible use of race in the discussion, risking bias and reliance on facts not in evidence. (Id. at pp. 815-816, 819-820.)
On appeal, the Supreme Court held that the trial court erred in discharging Juror 5. (Wilson, supra, 44 Cal.4th at p. 825.) It concluded his comments about the relationship between Black fathers and children were not misconduct because he was simply interpreting the evidence based on his own life experiences as a Black man (id. at p. 830-831), and his statement that the other jurors would not understand because they were not Black "merely meant that they did not share his personal experiences growing up in an African-American family." (Id. at p. 832.) Juror 5 did not refuse to deliberate; rather, he tried to describe his experiences to the other jurors. (Id. at p. 832; see People v. Yeoman (2003) 31 Cal.4th 93, 162 [no misconduct in jurors discussing their personal knowledge of the effects of drugs].)
This case does not fall within the prohibition against convicting a defendant based on race. There is no indication that the CWS Juror made any reference to Dorey's race, or that she expressed any bias against Dorey or any racial group with which he identifies. Instead, Juror 8's declaration indicates that the CWS Juror commented on the race of a fellow juror, on how race limited that juror's ability to understand Doe's testimony, and on the CWS Juror's own experience being targeted based on her race. The CWS Juror's comments are analogous to those found not to constitute misconduct in Wilson, where Juror 5 told other jurors his experience with racism uniquely qualified him to understand certain aspects of that case. (Wilson, supra, 44 Cal.4th at p. 815.)
Appellant makes the troubling allegation, through Juror 8's declaration, that Juror 8 felt she "was not free to participate in deliberations" because one or more of her fellow jurors accused her "of being biased." But the only fact in the declaration to support this conclusion is the single statement, by the one juror, "that due to my race, my opinion of [] Doe's testimony was not valid." So phrased, this is an aggressive argument, and we understand why Juror 8 would have found it offensive. But"' "we must tolerate a certain amount of imperfection short of actual bias" '" in jury deliberations. (Tran, supra, 13 Cal.5th at p. 1231.) And other aspects of Juror 8's declaration suggest that, in spite of her fellow juror's comment, Juror 8 was able fully to participate in deliberations. Indeed, Juror 8 recounts being "told more than once" as she pointed out inconsistencies in Doe's testimony that she was" 'doing defense counsel's job,'" which means she must have been sharing her views about the evidence in the jury room.
In sum, we conclude that this record does not show juror bias or misconduct as a" 'demonstrable reality.'" (Martinez, supra, 47 Cal.4th at p. 943.) The trial court did not abuse its discretion in declining to order a new trial on this basis.
ii. CWS Juror's Use of Her Own Expertise on Domestic Violence
1. Factual Background
Juror 8's declaration in support of defendant's motion for new trial also stated the CWS Juror said that she was "an expert on intimate violence," that she had "been specifically trained on intimate partner violence," that "any inconsistent statements were part of the cycle of violence[,] and that [the jury] should believe Doe over Dorey based on [the CWS Juror's] expertise." She also "explained the theory of battered women's syndrome and that each and every inconsistent statement is excusable because [] Doe is a battered woman."
Dorey contends that, by making the comments above, the CWS Juror impermissibly injected her expertise on domestic violence into the deliberation room. This, he argues, was misconduct.
2. Analysis
As we have explained, a jury's verdict must be based on the evidence at trial rather than extrinsic matters. (Leonard, supra, 40 Cal.4th at p. 1414.) Thus, it is improper to inject new evidence into the jury deliberation room (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 323 [juror consulted a dictionary]) or engage in an experiment that produces new evidence (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1746 [juror conducted an experiment regarding pouring concrete]).
The courts recognize, however, that some jurors may have specialized knowledge relevant to the evidence. Although "[a] juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, . . . [courts] must allow those jurors to use their experience in evaluating and interpreting that evidence." (People v. Steele (2002) 27 Cal.4th 1230, 1266 (Steele), italics added.) In such a case, there is a fine line between "using one's background in analyzing the evidence, which is appropriate, even inevitable, and injecting 'an opinion explicitly based on specialized information obtained from outside sources,' which [has been] described as misconduct." (Ibid.) If a juror's opinion is based on the evidence at trial, "[i]t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject." (In re Malone (1996) 12 Cal.4th 935, 963.)
Applying these rules, our Supreme Court in Steele ruled that the trial court did not abuse its discretion in declining to hold an evidentiary hearing to inquire into an allegation of juror misconduct where jurors with experience in the medical field criticized the criteria defense medical experts applied to establish the validity of a brain electrical mapping test. (Steele, supra, 27 Cal.4th at pp. 1265-1267.) The trial court could reasonably determine the supporting declarations showed "mere[] expressions of opinions, informed by the jurors' life experiences, regarding evidence subject to varying interpretations." (Id. at p. 1267.)
Likewise, in People v. San Nicolas (2004) 34 Cal.4th 614, 650, a juror who was also a nurse explained to the other jurors the evidence about stab wounds and blood flow available on the record. The defendant moved unsuccessfully for a new trial. (Id. at p. 643.) Our high court concluded the trial court did not abuse its discretion in ruling there was no misconduct, reasoning that the evidence in support of the motion "[did] not show that [the nurse-juror] offered the jurors any basis for deciding the case other than the evidence and testimony presented at trial," nor that her assertions were "inconsistent with the properly admitted evidence and testimony." (Id. at p. 650.)
This case is similar. According to Juror 8's declaration, the CWS Juror explained that "any inconsistent statements were part of the cycle of violence," and that Doe's inconsistent statements could be explained by the theory of battered women's syndrome. These statements appear to fall within the scope of the testimony of the domestic violence expert, who discussed the "cycle of violence," and the sometimes inconsistent behavior of victims of domestic violence. There is no indication they are impermissibly "different from or contrary to . . . the evidence" or cross the "fine line" that divides permissible and impermissible use of expertise by a juror. (Steele, supra, 27 Cal.4th at p. 1266.) Dorey has not shown the CWS Juror committed misconduct.
II. Ineffective Assistance of Counsel
Dorey claims he was deprived of his Sixth Amendment right to effective assistance of counsel because his trial attorney did not authenticate and introduce into evidence Doe's medical records from the night of the incident. These records, he argues, undermine Doe's version of events-and particularly her testimony that he hit her in the face and caused a black eye-because they show no injury to her left eye.
a. Factual Background
On the first day of trial, before the parties made their opening statements, the parties and the court briefly discussed Doe's medical records from the night she jumped out of Dorey's truck. The court told defense counsel that the medical records from Mad River Hospital arrived late the previous day. Defense counsel said it had been a "nightmare" to obtain the documents and that she had had to subpoena the hospital three times. The court provided Doe's medical records to defense counsel at that moment. The parties stipulated to the chain of custody, but not to the admissibility of particular statements.
The medical records included a detailed description of the injuries the medical staff at Mad River Hospital identified on Doe's body when she entered the emergency room the night of November 9, 2019. There was no mention of an injury to her eye. Defendant did not call witnesses to authenticate the medical records, and they were not admitted into evidence at trial.
In his motion for new trial, Dorey attached a declaration by his trial counsel stating, among other omissions, "I did not subpoena witnesses to authenticate Doe's medical records showing that safety protocols were in place and that there was no injury to her eye recorded on the night of the accident." The declaration did not explain why trial counsel did not subpoena any such witnesses.
b. Analysis
To establish ineffective assistance of counsel, Dorey must show two things. First, he must show counsel's performance was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687.) A reviewing court presumes that counsel's actions fell within the range of professional reasonableness and affords great deference to counsel's tactical decisions. (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) Second, he must show prejudice, i.e., a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, at p. 694.) When a defendant fails to satisfy one element of the inquiry, the reviewing court need not address the other element. (People v. Morales (2021) 67 Cal.App.5th 326, 337.)
This showing is more difficult to make on direct appeal, when the record may not be sufficient to explain counsel's tactical reasoning or lack thereof, than in a habeas corpus proceeding on a full record. (Mickel, supra, 2 Cal.5th at p. 198.) On appeal, a reviewing court may have "no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.) Thus, on direct appeal, we reverse a conviction for ineffective assistance of counsel "only if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an action or omission." (Ibid.) We evaluate counsel's decisions under the circumstances at the time, not in hindsight, and we refrain from second-guessing counsel. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
This record does not affirmatively show that counsel had no rational tactical purpose for not seeking to introduce Doe's medical records. The declaration of counsel submitted below states simply that counsel did not subpoena witnesses to authenticate Doe's medical records, among a list of other actions she did not take before and during trial. The declaration does not explain whether there was a tactical purpose for this omission, and this record does not foreclose one. For instance, counsel might reasonably have concluded the medical records were of little or no evidentiary value because their silence on the eye injury could be rebutted with medical testimony that a black eye may not manifest for a day or two after a blow, and with evidence that Officer Keller saw the injury to Doe's eye a full month after she jumped from the appellant's truck. Or counsel might have concluded, since the medical records did not arrive until the outset of trial and it had taken counsel multiple efforts to obtain them, that there was not enough time to procure the attendance of a witness who could authenticate the records. She might also have been concerned that the records' detailed descriptions of Doe's injuries would only highlight their severity and make her appear more sympathetic. Whether or not counsel's actions were in fact guided by any of these considerations, this record does not show affirmatively that her performance fell outside the broad range of reasonable professional assistance. (Mickel, supra, 2 Cal.5th at p. 198.) Dorey has thus failed to meet his burden on direct appeal to show ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FUJISAKI, J., PETROU, J.