Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. Nos. 179810, 183906
Pollak, J.
Defendant Xiao Feng appeals from a judgment convicting him of numerous counts of, among other things, assault by means likely to produce great bodily injury, rape, forcible oral copulation, false imprisonment, and dissuading a witness. Defendant contends the court violated his constitutional rights when it refused to suspend the criminal proceedings a third time to evaluate his competency to stand trial and when it terminated his right to represent himself at trial. Defendant also contends that he received ineffective assistance of counsel. We shall affirm.
BACKGROUND
In August 2000, defendant was charged by amended information with three counts of rape (Pen. Code, § 261, subd. (a)(2)), four counts for forcible oral copulation (§ 288a, subd. (c)(2)), one count of corporal injury on a cohabitant (§ 273.5), one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), one count of assault with a deadly weapon (§ 245, subd. (a)(1)), three counts of criminal threats (§ 422), two counts of felony dissuading a witness (§ 136.1, subd. (c)(1)), and one count of false imprisonment (§ 236). The information also alleged with respect to most of the counts that defendant personally used a deadly weapon and defendant inflicted great bodily injury during the commission of the crimes.
All statutory references are to the Penal Code unless otherwise noted.
In December 2002, defendant was found incompetent to stand trial and he was committed to a state mental hospital for treatment. In January 2006, a jury found that defendant was no longer incompetent to stand trial. In November 2006, proceedings were suspended a second time to again evaluate defendant’s competency. Proceedings were reinstated in January 2007 after two doctors found defendant competent to stand trial.
In March 2006, the court granted defendant’s motion to represent himself. A year later, however, the court terminated defendant’s self -representation and appointed an attorney to represent defendant at trial.
Trial was commenced in August 2007, but ended in a mistrial when, on the first day of trial, defendant decided to start cooperating with appointed counsel and provided him information about the case that counsel believed could be critical to the defense if properly investigated.
In May 2008, the matter was tried before a jury. The following evidence was presented at trial: The victim began dating defendant in 1995. They lived together on and off until April 2000. They have one child together. Defendant moved into the victim’s apartment for the last time in July or August 1999. About the same time, the victim also began dating another man. Throughout the victim’s relationship with defendant, defendant was physically and verbally abusive, often threatening to kill her if she did not have sex with him. On April 26, 2000, defendant attacked her when she came home from work. He threatened to kill her and hit and kicked her repeatedly. While kicking the victim, defendant accidently kicked a door frame, injuring his foot. Threatening to kill her with a pair of scissors, defendant raped and forced her to orally copulate him. The following morning defendant again raped and forced her to orally copulate him. The victim reported the attacks to the police that afternoon. An examination by a sexual assault nurse revealed numerous injuries on the victim’s body and an x-ray revealed a fractured rib. When defendant was arrested, his foot was swollen and bandaged. From jail, defendant left the victim threatening phone messages. The victim also received unsigned letters threatening to kill her and her family if she did not withdraw her accusations against defendant and show she was sorry. The letters were written on paper and mailed with stamps matching those found in defendant’s jail cell.
The victim was impeached with the fact that she lied to the police when she told them she had not had sex with any other men, when in fact she had sex with her boyfriend within 24 hours prior to the attack. The parties stipulated that DNA testing was conducted on the victim’s underwear revealing a DNA profile of defendant and that of another male. The victim claimed she gave this information to the prosecutor before the DNA test results were revealed.
Defendant testified in his own defense. He denied hitting or threatening the victim on the night in question and claimed their sexual relations were consensual. He claimed the victim was injured trying to collect money “from those trashy people in the casino.” He denied writing the letters to the victim. He claimed the victim wanted him jailed so that she could obtain sole custody of their daughter and keep approximately $100,000 of his money and property. He claimed that he hurt his foot because he was drunk and fell when the victim pushed him.
The jury acquitted defendant of one count of rape, one count of forcible oral copulation and assault with a deadly weapon and found him guilty of the remaining thirteen counts. The jury found not true all of the deadly weapon allegations and three of the great bodily injury allegations but found true the remaining five great bodily injury allegations. Defendant was sentenced to 44 years in prison. Defendant filed a timely notice of appeal.
The rape and oral copulation charges on which defendant was acquitted relate to an incident the victim testified occurred on April 23, 2000. As defendant was acquitted of those charges, we have not included those facts in the above recitation.
DISCUSSION
1. The trial court did not abuse its discretion in failing to make a renewed inquiry into defendant's mental competency during the trial.
Factual and Procedural History
In August 2002, criminal proceedings were suspended after defendant’s attorney expressed a doubt as to defendant’s competency. At that time, Dr. John Shields found that defendant’s mental status was “unremarkable” and that he “appeared well in command of his mental faculties and was cooperative with the interview and evaluation.” The doctor concluded that while defendant “may pose unique and notable challenges, and while working with him may at times be difficult, he appears at present as able to assist his attorney in his defense.” Dr. Jonathan French, however, concluded that “defendant may not be competent to stand [trial] at the present time.” He reported that defendant “has a tolerably acceptable understanding [of] the nature and purpose of the proceedings” but that his “rigidity and conspiratorial observations” may preclude rational cooperation with his attorney. He explained that defendant “appears to be drowning in details, ... tripped up by some while ignoring others, but essentially proving unable to focus productively upon them. Every little point becomes a case in itself, with the result that [defendant] can appear irrational.” A third doctor also determined that defendant was not competent. Based on these evaluations, the court found defendant incompetent and committed him to a state mental hospital.
Between April 2003 and April 2005, staff at the mental hospitals submitted reports to the court diagnosing defendant first as having “psychosis not otherwise specified” and later as having a “personality disorder not otherwise specified (with paranoid features).” On three occasions, they reported that defendant was not competent and needed continued treatment. Defendant was returned to court in July 2005 without a certificate of restoration of competency.
In January 2006, a jury trial was conducted to determine defendant’s competency. Jack Dawson, defendant’s treating psychologist from July 2003 to July 2005, testified that when he first began treating defendant he believed he had a diagnosis under Axis I of psychosis, not otherwise specified. He explained that defendant was suffering from the belief that his defense attorney and the district attorney were altering evidence and that his attorney was not showing him all the available evidence. Defendant also thought that information was being left out of the transcripts from the hearing. Dawson believed this to be paranoid ideation; in other words, his thoughts about dangers do not seem realistic. By August 2004, however, that diagnosis had changed to an Axis II personality disorder, not otherwise specified, but not an Axis I diagnosis. He explained, “An Axis I disorder is an acute disorder. The person’s symptoms are expected to improve or at least go up and down over time. In its most serious phase, it’s likely to be relatively brief in duration. It disrupts your concentration. It may also disrupt your ability to think logically. [¶] [An] Axis II disorder is a personality feature. It’s long term, often begins early in childhood.... [It] does not interfere with concentration. Does not interfere with the ability to reason logically.” Defendant’s personality disorder included an inflexible and obsessive need to master details.
According to Dawson, defendant had better than average intelligence, was highly assertive and highly motivated to defend himself. Dawson testified that defendant “knew the evidence in his case better than anybody that we had in our unit, spent all of his time preparing it.” Defendant understood the nature and purpose of the criminal proceedings against him. He understood his own status and condition in the criminal proceedings. He could analyze his experience and develop a demanding and complicated plan. He has a good memory and is a good historian. There is nothing illogical about his thinking. In fact, defendant informed Dawson that there had been negotiations between his attorney and the prosecution regarding a plea bargain. He told Dawson about the amount of time in prison he would spend if he accepted the plea offer. Dawson found that aside from his personality disorder, defendant was “competent in every other way.” Dawson concluded, however, that his personality disorder “was severe enough to prevent him from cooperating effectively in a defense with his lawyer.”
Jonathan French, who determined defendant was not competent in 2002, reviewed defendant’s records after attempting unsuccessfully to interview defendant again and concluded that not much had changed in defendant’s condition. French testified that defendant understood his position in the case and was fully capable of relaying all the information he has regarding his case to counsel. He questioned, however, defendant’s capacity to cooperate in a rational manner with counsel. He explained that defendant has full command of all of the evidence in his case but floods his counsel with too many details and insists on controlling the use of the evidence. French expressed difficulty determining whether defendant’s refusal to cooperate with counsel was a product of a mental disorder or a volitional choice.
Psychiatrist Roland Levy, who had evaluated defendant’s competency in 2002 at the request of his attorney, testified at the hearing for the prosecution. Defendant refused to cooperate in an interview with Dr. Levy in October 2005 but after reviewing defendant’s records and the reports made by other psychologists and psychiatrists, Dr. Levy concluded that defendant was competent to stand trial. According to Dr. Levy, defendant “appears to have a very adequate understanding of the legal process. He knows what he is charged with. And his ability to cooperate with his attorney, I feel is present. But he doesn’t choose to cooperate. I see it as volitional rather than something due to a mental disorder.” In Dr. Levy’s opinion, an Axis II personality disorder will not render a person incompetent to stand trial. People with personality disorders are still able to make choices. They make the choice to cooperate or not to cooperate. “An individual [with a personality disorder] might refuse [to cooperate] until he gets the attorney he wants. Or if he is offered some sort of deal he feels might be in his best interest, he suddenly will be able to cooperate.” Dr. Levy acknowledged that it is very difficult for an attorney to represent someone who refuses to cooperate with him but that is not a unique situation and it does not render a defendant incompetent.
Defendant testified that he understood the meaning of a competency hearing and had insisted on testifying despite warnings by his attorney. Defendant believed that “putting a mentally healthy person in a mental hospital, using $300 a day is really unfair.” He believed he was competent and has asserted his mental competence at every step of these proceedings, beginning in 2002.
On January 25, 2006, the jury found defendant not mentally incompetent to stand trial and the criminal proceedings were reinstated. Defendant was represented by counsel at his competency hearing, but shortly thereafter, his request to represent himself was granted. Mr. Ken Quigley was appointed standby counsel.
In November 2006, the trial court declared that there were changed circumstances that again justified suspending criminal proceedings. The court explained, “From the very beginning I was concerned... that Mr. Feng refused to look at the evidence when he had demanded to see it and had an opportunity and then wouldn’t, and his reasons for not doing so, quite honestly, didn’t make much sense. Then I was concerned all throughout proceedings [about] his behavior in court: he would seem okay for a while and then he would demand to see Mr. Quigley, and then refuse to see him, and then demand to see him and then refuse to see him. Also, part of the proceedings, and it really isn’t that clear on the record that he was very upset that some doctor had come to see him in jail and was accusing Mr. Quigley of having someone come up, which he did not. And I learned through the sheriff’s department that they were so concerned about his behavior in custody that they had sent a psychiatrist up or psychologist to take a look at him. And then I think that the last thing, Mr. Quigley, you might want to fill in, but the last thing that really did it was him flip flopping right in front of my eyes on saying that he wanted to see Mr. Quigley and then refusing, and saying some very-just some things that really didn’t make sense, and were completely inconsistent within the span of about 20 seconds so that I was concerned on his competency on 1368 purposes, and to represent himself.”
Two doctors were appointed to examine defendant. On December 29, 2006, Psychologist Jules Burstein reported that in his opinion, defendant was “presently competent to stand trial if represented by an attorney, but certainly incapable of representing himself.” Dr. Burstein was of the opinion that defendant was choosing not to cooperate with counsel rather than being unable to cooperate with counsel due to major mental disorder. The second psychologist, Dr. Larry Wornian, agreed with Burstein and found defendant competent to stand trial. Although the record contains no such court order, it appears that defendant was found to be competent and proceedings were reinstated at that time.
At a hearing in January, as described more fully below, defendant was warned that his self-representation would be terminated if his behavior threatened the integrity of the trial. In March 2007, the court terminated his self-representation and appointed counsel to represent defendant through trial.
On August 27, 2007, just before the start of the first trial, defense counsel again asked the court to appoint experts to examine defendant pursuant to section 1368. Counsel alleged that defendant was still refusing to cooperate with him, believed he and the judge were engaged in a conspiracy to convict him and was threatening to go on a hunger strike. The prosecutor opposed the motion, arguing that there had not been a substantial change in circumstances. The court agreed and denied the motion on the ground that there was no evidence of changed circumstances. The court explained, “It is clear that more is required than bizarre actions or statements. And, candidly, everything that is occurring now I think has occurred throughout the case. And I think that the noncooperation here is within the volitional control of the defendant. That’s based on all the evaluations and everything that I have seen in court. And this continued noncooperation, I don’t think, constitutes evidence of a change in circumstances.
In January 2008, counsel for defendant again expressed a doubt regarding defendant’s competency based on his claim that counsel had threatened defendant with a pair of scissors to get him to plead guilty. Counsel explained, “That particular allegation causes me grave concern because it is so delusional, and it involves Mr. Feng imagining a physical object that simply didn’t exist, and so therefore I am reluctantly going to have to renew my suggestion of a [1368] incompetence to stand trial, because someone who is imagining that I am threatening him with a pair of scissors when that simply didn’t happen is, in my view, not sufficiently in touch with reality to assist me with the preparation of the case. And that obviously is a new matter.” The trial court denied the request to suspend proceedings, concluding that there had not been a substantial change in circumstances. “Mr. Feng has made other similar accusations in the past. That there is no change, that is not different. I think that, frankly, these allegations are manufactured to get a different counsel. And the real test, I think, is the competency to cooperate, not actual cooperation. I am satisfied that Mr. Feng is competent based on everything.”
In May 2008, at the start of the second trial, counsel for defendant again expressed a doubt as to defendant’s competency. Counsel submitted a declaration stating that defendant had been hospitalized as a result of a hunger strike and that the hunger strike had affected his thought processes and physical condition. The trial court again found no changed circumstances. “We have our record. I believe that I don’t find any changed circumstances. I believe that the hunger strike comes-first of all, I don’t think this is the first time, but more important, I don’t believe that-I believe that this is voluntary conduct and any effects of the hunger strike are due to his voluntary conduct. And I don’t find changed circumstances for the purpose of 1368.”
Analysis
“The due process clause of the Fourteenth Amendment to the United States Constitution and section 1367 prohibit the state from trying or convicting a criminal defendant while he is mentally incompetent.” (People v. Kaplan (2007) 149 Cal.App.4th 372, 382.) “A defendant is mentally incompetent to stand trial if, as a result of mental disorder or developmental disability, the defendant is ‘unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ ” (People v. Marshall (1997) 15 Cal.4th 1, 31, citing § 1367, subd. (a).) “ ‘Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial.’ ” (People v. Kaplan, supra, at p. 383.) “When a competency hearing has already been held and the defendant has been found to be competent to stand trial, ‘a trial court is not required to conduct another competency hearing unless “it ‘is presented with a substantial change of circumstances or with new evidence’ ” that gives rise to a “serious doubt” about the validity of the competency finding.’ ” (Id. at pp. 383-384.) We review the court’s decision not to conduct a renewed competency hearing for an abuse of discretion. (People v. Marshall, supra, at p. 33.) “[A] reviewing court generally gives great deference to a trial court’s decision whether to hold a competency hearing.... ‘ “An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.” ’ ” (Ibid; People v. Marks (2003) 31 Cal.4th 197, 220.)
Defendant contends that the court abused its discretion in failing to hold another competency hearing because his conduct between January and May 2008 provides substantial evidence of changed circumstances. He argues, “Those new substantial circumstances included [defendant’s] delusion that defense counsel threatened him with a pair of scissors to try and force him to plead guilty, and the hunger strike and resultant hospitalization.” He suggests that “the delusion concerning the threat with the scissors was ‘a quantum leap in seriousness’ from prior complaints.” We disagree.
As the trial court noted, the record references two prior reported hunger strikes. The record establishes that on at least one occasion, defendant used a hunger strike as a means to control a former attorney and “get the judge to censure [his attorney] and tell [his attorney] to do things for him that [his attorney] was not doing.” While defendant had not previously complained that his attorney had threatened him with a weapon, defendant has consistently reported his belief that his attorneys were conspiring to have him convicted. Contrary to defendant’s argument, these circumstances do not necessarily demonstrate “a quantum leap in seriousness.” They may as well demonstrate that defendant was ratcheting up his behavior to further delay the trial. The record establishes that defendant was capable of logical thinking, understood the court process and was capable of crafting a complicated plan. This evidence and the opinions of the doctors who evaluated defendant previously provide substantial evidence in support of the trial court’s conclusion that defendant’s refusal to cooperate was volitional. Accordingly, we cannot conclude that the court abused its discretion by failing to conduct another competency hearing. (See People v. Medina (1995) 11 Cal.4th 694, 734 [evidence of the defendant’s “continued noncooperation did not, under the circumstances, constitute substantial evidence of a change in circumstances necessitating a new hearing”].)
2. The trial court did not err in terminating defendant’s self-representation.
Factual and Procedural Background
In March 2006, shortly after the jury found him competent to stand trial, defendant moved to represent himself under Faretta v. California (1975) 422 U.S. 806. The trial court granted his request and appointed Quigley as standby counsel Trial was originally set for September 2006 but was continued a number of times, and the proceedings were suspended briefly while defendant’s competency was re-evaluated in December 2006.
On January 31, 2007, defendant moved to relieve Mr. Quigley as standby counsel. Defendant complained that Quigley had not come to see him and had not provided an interpreter as requested. The court denied the request and warned defendant that if his behavior threatened the integrity of the trial, the court would terminate his right to represent himself. The court explained, “I am concerned... with your behavior in dealing with investigators, with people that are trying to assist you in representing yourself, that threaten to compromise my ability to conduct a fair trial. Asking, demanding to see the evidence and yet when all the evidence is brought up to you, refusing to see it, for one. Demanding to have Quigley come and talk to you and then refusing to see him.... [¶]... [¶] Asking for a two-year continuance, that’s just not realistic.... I will certainly give you enough time to prepare your case, but if this kind of behavior continues to subvert the core concept of a trial and a fair trial, I am going to have to terminate your right of self-representation. I am warning you.”
Defendant appeared in court again on March 2, 2007. When asked when he would be ready to proceed to trial he said, “At least I need-I need at least, I would need to get all the evidence that the district attorney is in possession of first. And secondly, I will need to review all of the reports. Thirdly, I will need to investigate first. Fourthly, I need to prepare motions, too. And then I will need to talk with the experts to have a research about this case. Therefore, from what all I said earlier, I have not to start to do anything yet. I think it would be unfair for me if I miss one of the work procedure that I just mention. If I miss one of them, then it is not fair for me to have a trial to be started like this. Therefore, would you please help me to let the Honor know that to see if I can-if I can get these types of service first, please. And then I would do it step by step. And then I would know when would the trial be started and when would I be ready.” In response, the court terminated defendant’s self-representation and appointed Quigley to represent defendant at trial. The court explained, “I have taken a complete review of the record, I have looked at all the court minutes to see what has happened. [¶] First of all, there have been requests or demands made for an interpreter and for an investigator; they have been repeatedly refused. I even noted one hearing where I think at the Faretta hearing where there was a request for standby counsel, and yet efforts of standby counsel to assist have been repeatedly refused. [¶] There have been repeated motions for continuances, but at the last hearing there was a request, I think, for a two-year continuance. Requests are granted by the court, and yet I keep hearing over and over motions for the same thing, even though they have already been granted. And the effect, frankly, is to delay and obstruct the trial and make it impossible, actually, to conduct a fair trial in this matter. [¶] The record is just replete with this kind of conduct. However, the conduct I am relying on has been happening just since I got the case. I think that in one report back in 2002 Dr. French noted that the difficult and obstreperous conduct of Mr. Feng was delaying the trial. [¶]... [¶] And this conduct has gone on since the inception of the case. It is not going to change. Today even makes it more clear to me that it is not going to change.”
Analysis
A criminal defendant has the right under the Sixth and Fourteenth Amendments to waive the right to counsel and to represent himself. (Faretta v. California, supra, 422 U.S. at p. 819.) If the defendant is mentally competent and, within a reasonable time before trial, makes an unequivocal request knowingly and voluntarily after having been advised by the court of the dangers of self-representation, the request must be granted. (Id. at p. 835.) However, once granted, the trial court is not powerless to revoke the defendant’s self-represented status in limited circumstances: “ ‘The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.’ ” (People v. Carson (2005) 35 Cal.4th 1, 8, quoting Faretta v. California, supra, at p. 834, fn. 46.) A court may terminate a defendant’s right to self-representation if the defendant engages in “ ‘deliberate dilatory or obstructive behavior’ [that] threatens to subvert ‘the core concept of a trial’ [citation] or to compromise the courts ability to conduct a fair trial....” (People v. Carson, supra, at p. 10.) When determining whether termination is appropriate, the trial court should consider such factors as the nature of the misconduct, its impact on the trial proceedings, the availability of alternative sanctions, whether the defendant was warned that particular misconduct would result in termination and whether the defendant intentionally sought to disrupt or delay the trial. (Ibid.) We review a trial court’s decision to revoke a defendant’s right of self-representation for abuse of discretion, giving deference to the court’s “judgment call.” (People v. Clark (1992) 3 Cal.4th 41, 116.)
Here, the trial court found that defendant’s conduct was designed to intentionally and unreasonably delay the trial and that it posed a serious threat to the integrity of the trial. The evidence, discussed thoroughly above, amply supports this finding. Moreover, the court clearly warned defendant that his right of self-representation would be terminated if he continued his behavior. Contrary to defendant’s argument, the fact that the trial subsequently was continued for almost five months does not establish that an alternative sanction should have been imposed. Mr. Quigley was given an initial two-month continuance to prepare for trial after defendant’s self-representation was terminated and an additional three-month continuance when he reported to the court that translating much of the evidence in the voluminous record from Cantonese to English would require additional time. The court did not violate defendant’s constitutional rights by terminating his self-representation.
United States v. Flewitt (9th Cir. 1989) 874 F.2d 669, cited by defendant in his briefs and relied upon at oral argument is distinguishable. In that case, the trial court terminated the defendants’ self- representation on the ground that they were not prepared to begin the trial. (Id. at p. 671.) The defendants had made a number of discovery motions that had been denied and had refused to utilize the discovery provided by the government, leading the trial court to conclude that they were incapable of effectively representing themselves. (Id at pp. 671-672.) The appellate court reversed, explaining that “defendants’ constitutional right of self-representation may not be abrogated because they were uncooperative with the Government in utilizing discovery opportunities or in making vague and poorly formulated motions. This may be poor defense tactics, and it well could have resulted in adverse rulings. However, if they chose to represent themselves and, after the reasonable opportunities afforded by the court, chose tactics that left them poorly prepared to defend, that was their choice to make.” (Id. at p. 673.) The court recognized that “a request for self-representation need not be granted if it is intended merely as a tactic for delay” and that “court may consider events preceding a motion for self-representation to determine whether the request is made in good faith or merely for delay.” (Id. at pp. 674-675.) The court noted that the trial court there had not found that defendants “had been or would be disruptive” and the “judge did not indicate that they had been contemptuous or failed to obey the rulings of the court.” (Id. at p. 673.) In contrast, in the present case, the court revoked defendant’s right to self-representation not because he would be unprepared and unable to effectively represent himself at trial, but because he was deliberately delaying the proceedings in an attempt to subvert the core concept of a fair trial.
3. Defendant received effective assistance of counsel.
Defendant contends that he was denied effective assistance of counsel when his attorney, over his objection, conceded in closing argument that defendant was guilty of all the crimes charged except for the sex offenses and told the jury that he had lied on the stand. In his closing argument, Quigley divided the evidence into three areas: evidence of the threats, evidence of the assaults, and evidence of the sex offenses. With respect to the threatening letters he argued, “There is no direct evidence that Mr. Feng wrote those letters. Nobody says, I saw him writing it[, ] I saw him mailing those. But you have the letters. And you have the translations. And they contain facts that really only Mr. Feng would know. Yeah, you’re looking at me quizzically, because I’m about to admit something. Only Mr. Feng would have a motive to write the letters, and they are obviously very threatening. He’s full of wind. He’s full of hot air and he does make the threats in those letters. And so once you look at his motive, and the timing and the facts that only he would know, and then you look at the comparison with the exact same paper and stamps they pulled out of his cell, there is really only one place he could end up, I am sorry to say with regard to those threatening letters, that is that he wrote them.” Likewise, with respect to the assault, he argued, “[The victim] comes home one night. She is in perfectly good shape. She leaves the next morning, all beaten up. Who did that? Well, I don’t think her little friends did that. They had no motive to. See the picture of a liquor bottle, and I hear about a man who is insanely jealous, and I don’t believe for a moment that this nonsense about he’s okay with her having just one boyfriend on the side but not four or five. Come on. He’s an insanely jealous guy. He got drunk, and he went too far when he beat her up. And you’ve seen the pictures. You’ve seen the proof. No one else had a reason to do that. No one else would have done that. Sorry, that’s the truth.” However, with respect to the sex offenses, the attorney argued, “[T]hat’s where you get a different story. [The victim] had a perfect motive to lie. She wanted to get rid of Mr. Feng.... [¶]... [¶] I don’t suggest you disbelieve [the victim] and believe Mr. Feng. Mr. Feng also lied to you, lied to you a great deal. Got caught in a lot of little lies. But you have to decide whether or not there is proof beyond a reasonable doubt of these sex crimes. Let’s look at it logically. Is there any direct evidence that any non-consensual sex happened? No. None. Zero.... [¶] The obvious truth is that [the victim] was having an affair, successfully, because she is a competent, deceitful woman who knows how to carry that off, and she did.... [¶]... I don’t think that any sex at all happened that night on the night of the 26th and 27th. Mr. Feng beat her up and in beating her up he kicked a door so hard it broke his foot. Do you know how painful that is? And then supposedly he wants to hop in the sack and have sex. That’s the last thing he wants on his mind with that kind of pain. Same thing the next morning. [The vicitm] has a broken rib. Not the true ingredients for sexual intercourse. All of the circumstances around the 26th and the 27th tell you that there was probably no sex, and certainly no rape. [¶] Can [the vicitm] lie? Can [the victim] be capable of carrying off a lie that big? You bet she is.” He concluded his argument by saying, “I know [defendant] thinks I betrayed him now because I conceded that he did the beatings and he did the letters, I’m sure he hates me.... But, the truth needed to be spoken, and now I’ve spoken it.”
“ ‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness... under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (In re Avena (1996) 12 Cal.4th 694, 721; citing & quoting Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692, 694.) “ ‘In evaluating defendant’s showing [a court accords] great deference to the tactical decisions of trial counsel in order to avoid “second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel ‘to defend himself or herself against a claim of ineffective assistance after trial rather than to defend his or her client against criminal charges at trial....’ ” ’[Citations.] ‘ “However, ‘deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. “[D]eference is not abdication” [citation]; it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.’ ” ’ ” (In re Avena, at p. 722.)
It is well established that defense counsel must not argue against his client in closing argument. (People v. Lucas (1995) 12 Cal.4th 415, 446.) However, counsel’s admission of defendant’s guilt in closing argument may not be ineffective based upon all the evidence presented at trial. (Ibid.) In People v. Jackson (1980) 28 Cal.3d 264, 292-293, overruled on other ground in People v. Cromer (2001) 24 Cal.4th 889, 901, footnote 3, the court rejected defendant’s argument that his attorney provided ineffective assistance by conceding the defendant’s complicity in the charged crimes during his closing argument. The court explained that “it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his client’s innocence but instead adopted a more realistic approach, namely, that although defendant and others may have committed both burglaries, and may have aided and abetted the acts of violence which caused the victims’ deaths, nonetheless any such acts were unpremeditated and lacked the requisite deliberation or intent to kill. As stated in a recent case, ‘good trial tactics demanded complete candor’ with the jury.” (Jackson, at pp. 292-293.)
In this case, the tactical basis for counsel’s argument is clear from the record. As counsel conceded to the jury, the evidence against defendant on the charges that he threatened and assaulted the victim was very strong. Under these circumstances, we cannot say that counsel’s decision to concede guilt on those charges and contrast that evidence with the relatively weaker evidence of the sex offenses was deficient.
Likewise, conceding that defendant lied to the jury did not necessarily constitute ineffective assistance of counsel. In People v. Bunyard (1988) 45 Cal.3d 1189, 1216, the court held that defense counsel’s stipulation to the admission of letters “portraying [defendant] as a ‘louse’ and a liar” did not amount to ineffective assistance insofar as the stipulation served legitimate tactical purpose. The court explained that while it was “difficult to see how the jury could have reacted favorably to defendant as a witness, after listening to these telling words from the grave” they were “unwilling, however, to second-guess the informed tactical decision of trial counsel to stipulate to the admission of these letters.” (Id. at p. 1217.) Contrary to defendant’s characterization of the closing argument in this case, counsel did not call defendant a liar, rather he acknowledged that defendant told the jury “a lot of little lies.” Counsel also argued that the victim had lied as well and asked the jury to consider whether there was any direct evidence that the sexual acts were not consensual. Given the tactical decision to concede guilt on certain counts, conceding the smaller lies allowed defense counsel to garner credibility with the jury with respect to the only disputed issue as to which the evidence was not conclusive, i.e., whether the defendant had engaged in nonconsensual sexual acts. Under the circumstances, we cannot say that counsel’s tactic was unreasonable. In any event, defendant cannot establish that his attorney’s comments were prejudicial. Because the evidence of the assault and the threatening letters was overwhelming, the jury undoubtedly would have concluded that defendant was lying about those incidents, thereby diminishing his credibility in their eyes, with or without his attorney’s confirmation.
Relying on People v. Frierson (1985) 39 Cal.3d 803, defendant also argues that “separate and distinct from [his] right to effective assistance of trial, ” his attorney’s concessions in closing argument deprived him of his Sixth Amendment “right to make a personal choice on a fundamental decision in his case.” In Frierson, the court held that the decision whether to present a defense at the guilt phase of a capital trial was a “fundamental” one reserved to the defendant himself. (Id. at pp. 814-815; see People v. Henning (2009) 178 Cal.App.4th 388, 400 [Frierson applies in non-capital case].) In People v. Jones (1991) 53 Cal.3d 1115, 1139, the court limited Frierson to situations in which “ ‘the defendant openly expresses a desire to present a defense at that stage and when there exists credible evidence to support that defense.’ ” In Jones, counsel, “over the objection of [the] defendant, who insisted on proclaiming his innocence, ” conceded the defendant’s killing of the victim but argued that he was guilty only of manslaughter. (Ibid.) On appeal, the defendant asserted that counsel had “in effect presented a plea of guilty to voluntary manslaughter, thereby usurping defendant’s right to decide whether or not to enter such a plea.” (Ibid.) The court rejected defendant’s argument, finding that Frierson did not apply because “ ‘the record [did] not show that any defense [the defendant] wished to present had credible evidentiary support.’ ” (Ibid.) Therefore the defendant’s right to “make the ‘fundamental’ decisions regarding his defense” was not violated when counsel elected “not to argue defendant’s innocence” but to pursue “the only strategy with any chance of success.” (Id. at p. 1140; see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 219, pp. 343-345.) Similarly, defendant’s rights were not violated in this case because the record contains no credible evidence to support defendant’s claim that the victim wrote the letters to herself to frame him or that she was assaulted by anyone other than defendant. Accordingly, defense counsel did not violate defendant’s rights by not presenting a closing argument on those defenses.
Finally, contrary to defendant’s argument, defense counsel’s concessions of guilt did not “lessen[] the government’s burden to prove those charges and taint[] the integrity of the trial in violation of due process.” Defendant relies on United States v. Swanson (9th Cir. 1991) 943 F.2d 1070, 1076, in which defense counsel effectively conceded his client’s guilt to the only crime charged. The court held that defense counsel’s concession constituted ineffective assistance of counsel, which “lessened the Government’s burden of persuading the jury that Swanson was the perpetrator of the bank robbery.” (Id. at p. 1074 [“ ‘A lawyer who informs the jury that it is his view of the evidence that there is no reasonable doubt regarding the only factual issues that are in dispute has utterly failed to ‘subject the prosecution’s case to meaningful adversarial testing’ ”].) In contrast, in this case, defendant’s counsel did not concede defendant’s guilt on all charges, and to the extent he conceded defendant’s guilt on certain counts, he did so for a valid tactical reason. In Swanson the court differentiated the case before it from those cases in which “a trial attorney may find it advantageous to his client’s interests to concede certain elements of an offense or his guilt of one of several charges.” (Id. at pp. 1075-1076.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.