Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC587812
Premo, J.
A jury convicted defendant Michael Randal Warzek of aggravated sexual assault upon a child under 14 (counts 1 and 2), lewd act upon a child 14 or 15 (count 3), lewd act upon a child under 14 by force or fear (counts 4, 5 and 6), and possession of child pornography (count 7). On appeal, defendant contends that (1) the trial court erred by admitting over objection the evidence of child pornography despite his offer to plead guilty to count 7, (2) the trial court erred by overruling his objection that the prosecutor’s cross-examination of him exceeded the scope of the direct testimony, (3) the trial court erred by overruling his objection that an attorney-client privilege barring certain testimony had been waived, and (4) he received ineffective assistance of counsel because his counsel failed to object to the prosecutor’s cross-examination of him that called for inadmissible and prejudicial answers. We affirm the judgment.
background
The victim in this case was defendant’s daughter. The acts underlying counts 1 through 6 occurred when the victim was 10 through 14 or 15 years old. The victim testified as to the acts. Defendant testified and denied committing the acts. As to one incident, defendant testified that he was in church at the time of the incident and two witnesses testified that they believed defendant was attending church at the time of the incident.
The victim testified that she saw pornography on defendant’s computer and knew about defendant’s computer file named “X,” which, defendant had told her, contained pornography. A computer expert testified that he had located 1,984 images of child pornography on defendant’s computer that were intentionally downloaded from websites such as “underage.admirers” and “erotica.teensex.” He added that he had found most of the photographs in the user-created file named “X.” He identified five exhibits of which each displayed two of the photographs he had found. The trial court admitted the exhibits into evidence. The victim’s mother and defendant’s former wife testified that she had seen defendant looking at pornography on his computer and once saw him trembling and exclaiming “agoo gaga” while viewing a picture of a naked girl who was approximately the victim’s age.
child pornography evidence
During in limine proceedings, defendant unsuccessfully sought to sever count 7. He then sought a ruling that the photographs found on his computer were inadmissible if he pleaded guilty to count 7. He argued that the photographs were not sufficiently probative to prove a propensity to commit counts 1 through 6 because possession of child pornography is an offense dissimilar to the offenses charged in counts 1 through 6. And he argued that the photographs tended toward being inflammatory and, thus, were highly prejudicial. The trial court denied defendant’s request. It explained: “Let me just indicate then in doing a [Evidence Code section] 352 analysis it appears to me that the photographs, having looked at them, they do appear to be qualifying evidence under [Evidence Code section] 1108, and whether otherwise be admissible weighs the prejudicial impact--which[,] the way it usually works[,] is anything from the prosecution is typically prejudicial for the defense, and I don’t mean to be flip about that, but weighing the prejudicial impact versus the probative value of these photographs, I do think that the prejudicial value is not outweighed by the probative value, and under [Evidence Code section] 1108 analysis I allow the photographs to be admitted.” It later added: “When I look at them, the photographs, they do depict what appears to be obvious young females in either nude poses or engaged in acts of sexual activity. The charges here are not dissimilar in that there is allegations that there was sexual conduct by a person under the age of eighteen and that there was sexual contact. [¶] It seems to me that the photographs are probative of those issues, and let me indicate the court also looked at [specified case law] on this area. [¶] Let me indicate . . . that would not--to answer your question and the court’s [Evidence Code section] 352 analysis would not be disturbed by [pleading guilty to count 7]. Again I think that it’s appropriate to allow them to come in.”
Defendant tacitly acknowledges that, had he pleaded guilty to count 7, evidence of his possession of child pornography would have been admissible under Evidence Code section 1108. Subdivision (a) of that section provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352.” Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Evidence Code section 1108 creates an exception in sex-offense cases to the prohibition in Evidence Code section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations.” (Id. at p. 915.) Consequently, Evidence Code section 1108 permits the trier of fact to consider uncharged sexual offenses “ ‘ “as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.” ’ ” (Falsetta, supra,at p. 912.) “With the enactment of [Evidence Code] section 1108, the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, “the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ‘ “it has too much.” ’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
“By reason of [Evidence Code] section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶] . . . [T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Ultimately all of the relevant factors can be classified into two competing categories of effects. One is the tendency of the evidence to show that the defendant possessed a proclivity to engage in conduct of the same type as that involved in the charged offense, thus supporting an inference that he did in fact engage in the conduct alleged in the information. The other is prejudice, i.e., the tendency of evidence of wrongdoing to generate a sense of antagonism toward the defendant, ranging from distaste to indignation to outrage to shock, which in and of itself inclines the jury to convict the defendant regardless whether the actual charges are borne out by the evidence.
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 638.) “ ‘In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ ” (People v. Branch, supra, 91 Cal.App.4th at p. 286; see also People v. Harris (1998) 60 Cal.App.4th 727, 737 [a defendant must be tried for what he did, not for who he is].)
Defendant contends that the trial court erred by admitting the photographs. He asserts: “There was not very much, if any, similarity between the misdemeanor conduct involving the child pornography and the charged felonies of actual sexual conduct between a father and his young daughter. Furthermore, absolutely no evidence was produced by the prosecution to show that the mere possession of the type of child pornography in this case created a propensity by the possessor thereof to engage in the type of actual sexual conduct alleged in the six felony counts. . . . As such, the evidence of the possession of child pornography is nothing less than irrelevant and highly inflammatory evidence.” Defendant’s analysis is erroneous.
It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And the trial court’s exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Defendant simply fails to carry his burden on appeal. He merely reargues his position by relying on two factors that arguably support his position (dissimilar; inflammatory) instead of focusing on the factors supporting the trial court’s decision (not dissimilar; not inflammatory) and explaining why it was irrational to rely on those factors. We might very well suppose that possession of the photographs is dissimilar to the charged offenses and, thus, inflammatory. But the trial court relied on the aspects of the possession offense which arguably showed a similarity to the charged offenses. Without making an argument that the trial court’s view of the evidence was irrational, defendant does not offer us a path to find an abuse of discretion. Merely rearguing is not equivalent to demonstrating the irrationality of that reasoning.
Nor could defendant demonstrate irrationality. Whether two offenses are relatively similar for Evidence Code section 352 purposes is necessarily an opinion in a case such as this one where the offenses have differences but also similarities (interest in young girls). Similarly, whether possession of the photographs was so outrageous so as to shock the emotions of this jury into using evidence of that possession improperly is a highly subjective determination and necessarily dependent on other factors. In the ordinary case as here, the question provokes a difference of opinion rather than exposes irrationality. Moreover, defendant fails to mention that the trial court could have rationally concluded that the photographs were relatively benign when compared to the offenses charged in counts 1 through 6. And he also overlooks the trial court’s efforts in limine that resulted in 10 photographs being admitted into evidence rather than the 29 proffered by the prosecution.
The record demonstrates that the trial court applied factors outlined by the Falsetta court in determining the admissibility of the photographs assuming that count 7 was not in issue. The trial court’s balancing of those factors is not open to reexamination simply because the factors could be construed to favor defendant. In summary, we do not entertain rearguments as to a trial court’s discretionary determinations.
Defendant suggests that the errors in admitting the photographs violated his constitutional right to due process. But, as we have pointed out, defendant has failed to demonstrate any error.
In any event, “the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules.” (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6.) Accordingly, federal courts generally have rejected the blanket assertion that admission of uncharged misconduct evidence violates the due process clause (see, e.g., Dowling v. United States (1990) 493 U.S. 342, 352; Marshall v. Lonberger, supra,at p. 438; Spencer v. Texas (1967) 385 U.S. 554, 568-569; Ciucci v. Illinois (1958) 356 U.S. 571, 572; Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 7), unless the state rule of evidence “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (Patterson v. New York (1977) 432 U.S. 197, 202.) Moreover, introduction of relevant evidence does not offend the due process clause unless that evidence is so prejudicial that it renders the defendant’s trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 68-70.) Defendant makes no argument along these lines.
cross-examination
During the People’s case in chief, the trial court admitted into evidence a tape recording of a telephone call that the victim made to defendant during the police investigation. In the conversation, defendant asked the victim, “Why don’t you just delete my hard drive.” He later offered: “There’s a few things on there that are illegal, that I’ve [sic] when I’ve seen them, I’ve deleted them but you know, I haven’t gone through fifty thousand files. I’m sure there’s more.”
On direct examination, defendant was neither asked nor did he proffer testimony about count 7.
At the beginning of cross-examination, defendant objected to the prosecutor’s questions going “into the matters regarding the computer because there was no direct testimony about the computer whatsoever.” The prosecutor replied, and the trial court agreed, that the telephone call had opened the door to such testimony. The trial court pointed out that defendant had asked the victim to delete illegal files.
On cross-examination, the prosecutor elicited that defendant (1) was unaware that computer images had been downloaded from child pornography websites though he had seen some child pornography on the computer, (2) supposed the child pornography had been automatically downloaded by a program in the computer, and (3) told the victim to take care of his computer by deleting illegal things. “Also, the prosecutor . . . went after defendant on cross-examination and repeatedly questioned defendant with regard to various websites found on his computer that had . . . provocative names or . . . provocative advertising. The prosecutor, as to 14 different websites, would ask defendant if he were familiar with each website and also, most often, would ask defendant if he were familiar with the fact that his computer had visited each such website a certain number of times. Except for one time, defendant’s basic answer for each such inquiry for each such website was generally that he was unfamiliar with that website and did not know that his computer had ever been to that website. [¶] For example, the prosecutor asked defendant if he were familiar with the website known as galitsin-new.com which was a website for a Russian photographer specializing in young virgin girls, and that his computer had been to that website approximately 833 times. Defendant answered in the negative to both of those inquiries. Similar questions were propounded to defendant about the following 13 websites, and, most often, the number of visits to each such website by his computer: (1) tour.net-art.com offering the largest, freshest, classiest collection of teen nude art, with 258 visits by defendant’s computer; (2) realteenies.com with an opening page saying daddy’s darling flirty little teen sluts, with at least 82 visits by defendant’s computer; (3) teen-beauty.com, with no inquiry to defendant as to the number [of] times his computer visited that website; (4) porninspector.com, with at least 37 visits by defendant’s computer; (5) allofteens.com specializing in teen pornography, with at least 29 visits by defendant’s computer; (6) sexforsure.com with an opening page asking if one is looking for real teen hard core sex and young porn, with at least 24 visits by defendant’s computer; (7) lovefuckk.com advertising that it has the hottest teen pornography, with at least 22 visits by defendant’s computer; (8) teenpinkvideos.com, with at least 21 visits by defendant’s computer; (9) yummycummy.com, with at least 19 visits by defendant’s computer; (10) alphaporno.com, with no inquiry to defendant as to the number [of] times his computer visited that website; (11) intercouples.com with teencutiepies, with no inquiry to defendant as to the number [of] times his computer visited that website; (12) littlevirginz.com, with no inquiry to defendant as to the number [of] times his computer visited that website; and (13) ruteens.com advertising horny little girls that are a hundred percent free, with at least 14 visits by defendant’s computer. Except for once acknowledging that he was familiar with the website known as teenpinkvideos.com, defendant denied knowing anything about any of the other websites. Defendant also denied knowing the number of times his computer had visited those websites, including teenpinkvideos.com. [¶] Additionally, the prosecutor asked defendant, ‘. . . you are saying you . . . didn’t know your computer had been to any of these 64 pages of child pornography Web sites; is that correct [except for teenpinkvideos]?’ Defendant replied, ‘[t]hat’s correct.’ ”
We have quoted and adopted the above pertinent facts from defendant’s brief for convenience in light of the People’s agreement that defendant “aptly summarizes [his] cross-examination . . . on the topic of the child pornography found in his computer . . . .”
According to defendant, “all of the above inquiries about the pornography on defendant’s computer, how it might have gotten there, whether defendant was familiar with the websites, and whether defendant was familiar with the number of times his computer visited those websites, was impermissible as far exceeding the scope of defendant’s direct examination where defendant mentioned absolutely nothing about the pornography found in his computer.” Again, defendant fails to carry his burden on appeal.
A defendant in a criminal case may not, without his or her consent, be examined under direct examination by the People. (Evid. Code, § 772, subd. (d).) “The basis of this limitation on the cross-examination of a defendant in a criminal case is the constitutional privilege against self-incrimination.” (People v. James (1976) 56 Cal.App.3d 876, 887 .) When a defendant testifies on his own behalf, he waives his constitutional privilege against self-incrimination, “but only to the extent that he may be cross-examined regarding any matter (1) to which he has testified expressly on direct examination, (2) to which he has testified impliedly on direct examination, and (3) that is relevant to impeach the defendant’s credibility as a witness.” (Id. at p. 888.)
In People v. Schader (1969) 71 Cal.2d 761, the court measured the scope of cross-examination expressly in the light of and against the strength of all the fundamental principles relative to the giving or the absence of a defendant’s testimony in a criminal case. It listed these fundamentals as: the state and federal constitutional privileges against self incrimination; the accusatorial rather than inquisitorial American system of criminal prosecution; the requirements that (1) the People must shoulder the entire load of their burden of proof without assistance from the defendant’s silence or his compelled testimony, and (2) that when a defendant chooses to testify he or she should not be made a compelled general witness for the state and thus be put to a cruel trilemma of self accusation, perjury or contempt. But it then explained: “None of these fundamental principles, however, imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (Id. at p. 770.) It further says of cross-examination: “ ‘It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on direct examination.’ ” (Id. at p. 771.)
“The major problem with respect to the scope of cross-examination of a defendant in a criminal action is that of determining what matters of implied testimony flow by inference from defendant’s express testimony on direct examination. The guiding principle that is derived from the decisional law is to the effect, that, if the facts testified to by a defendant on direct examination amount, by inference, to a denial of the charge, he may then be cross-examined with respect to any matter tending to prove his guilt. An implied denial of guilt is considered as testimony denying the existence of any evidence relevant on the issue of guilt, which makes cross-examination about the subject of any such evidence properly within the scope of the direct examination.” (People v. James, supra, 56 Cal.App.3d at p. 888.) Thus, the scope of proper cross-examination, while not easy to explain in a single rule applicable to all cases, is nonetheless more dependent upon the ideas of relevancy of the subject matter than upon limitations attempted by the brevity of defendant’s testimony. Accordingly, when a defendant takes the stand and simply makes a general denial of the crime with which he is charged, the permissible scope of cross-examination remains very wide and allows inquiry into the truth of matters implicitly denied. (People v. Ing (1967) 65 Cal.2d 603, 610.)
The trial court has wide discretion in controlling the scope of relevant cross-examination. (People v. Lancaster (2007) 41 Cal.4th 50, 102.)
Defendant again reargues rather than explains why the trial court’s ruling on his objection was irrational. And it is not irrational to conclude that cross-examination about the subject of defendant’s computer was within the scope of the direct examination given that defendant himself broached the subject via the recorded telephone conversation in which defendant told the victim about illegal things on his computer. (People v. Lancaster, supra, 41 Cal.4th at p. 102 [“The prosecutor’s cross-examination was properly directed at defendant’s taped statements about the witnesses, and his responses to police questioning about the crime and the evidence”].) Moreover, defendant took the witness stand and denied committing the sex offenses alleged in counts 1 through 6. His propensity to commit sex offenses tends to prove his guilt of those offenses and, as we have previously explained, his possession of child pornography on his computer tends to prove his propensity. No abuse of discretion could be shown.
attorney-client privilege
On cross-examination of defendant’s former wife, defendant elicited that (1) the wife had filed a civil suit against him for the sex acts alleged in counts 1 through 6 in her capacity as guardian for the victim, and (2) the suit sought to recover damages to fund the victim’s college education that defendant could pay from an inheritance he had received. The former wife admitted hiring an attorney and agreeing to a temporary dismissal of the suit. She gave ambiguous and contradictory answers when asked what she meant by a temporary dismissal. For example, she answered “maybe” when asked whether she discussed with her attorney refiling the civil case after the criminal case concluded; and she answered “yes” when asked whether she authorized the attorney to dismiss the civil suit and “no” when asked whether she discussed the dismissal with the attorney before filing it. She also added that “[a]ll I know is that [my attorney] said that we’re postponing until whenever--or we don’t know when the civil suit, and I agreed to it” and “[my attorney] said that we had enough stress right now and that we were going to postpone this until a future date and if at all . . . .”
Outside the presence of the jury, defendant proposed to question the attorney about the reasons for the dismissal and the likelihood of it being refiled. He urged that the evidence was necessary to show that the true motivation behind the criminal case was the former wife’s desire to obtain money from him. The attorney was present at the hearing and admitted that he was the former wife’s attorney who had filed the civil suit against defendant. He asserted the attorney-client privilege, however, to questions (1) whether he discussed dismissal of the civil suit with his client before the suit was dismissed, (2) whether his client authorized the dismissal, and (3) what was the purpose of an email he had sent to defendant’s civil attorney stating that he would forward papers with a notice and acknowledgement of receipt when the civil action was refiled. Defendant argued that his former wife had waived the privilege by her testimony. The trial court disagreed and upheld the privilege.
Defendant contends that the trial court erred by upholding the privilege. He claims that his former wife had waived the privilege because she “disclosed a significant part of the communication.” (Evid. Code, § 912, subd. (a); see People v. Carasi (2008) 44 Cal.4th 1263, 1303.)
“We need not, and do not, decide the issue. Even assuming error occurred, it was harmless under any applicable standard.” (People v. Carasi, supra,44 Cal.4th at p. 1303.)
Defendant claims that the inability to question the attorney prejudiced him as follows: “The prohibited examination was tailored to show that [the former wife] was the ‘driving force’ behind the civil case to obtain a money judgment against defendant, that [she] was using her daughter to accomplish that goal, and that was the true motivation behind the criminal case. This in turn would give substance to a claim that [she] was getting her daughter to fabricate the events against defendant so that [they] could have access to defendant’s inheritance.”
But defendant had placed these issues before the jury. Defendant’s former wife admitted that she authorized the civil suit against defendant to reach his inheritance. And she refused to rule out that the since dismissed suit would not be refiled after resolution of the criminal proceeding. Her attorney’s testimony would have added nothing to the import of her testimony. Defendant fails to and cannot deny this reality.
ineffective assistance of counsel
Defendant contends that his trial counsel was constitutionally ineffective because he failed to object to the prosecutor’s line of questioning about his computer that we have detailed previously. According to defendant, the line of questioning “improperly suggested to the jury that the prosecution had a source of information unknown to the jury which corroborated the truth of the matters contained in the questions.” He clarifies as follows: “All of the above questioning by the prosecutor clearly suggested to the jury that defendant’s computer had visited all of those websites the specific number of times mentioned by the prosecutor and that the websites all contained child pornography. However, the prosecutor never presented a scintilla of evidence to support any of the claims suggested by the prosecutor’s questions that defendant’s computer had visited those websites for the specific number of times mentioned in the prosecutor’s questions. Nor did the prosecutor present any evidence to show that the websites in question actually contained illegal child pornography rather than mere adult pornography.”
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right “entitles the defendant not to some bare assistance but rather to effective assistance.” (Ibid.)
“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Defendant simply fails to carry his burden to show deficient representation. This follows because defendant’s complaint is essentially that the prosecutor’s questions were objectionable because they were leading questions that insinuated facts not in evidence.
A leading question “is a question that suggests to the witness the answer that the examining party desires.” (Evid. Code, § 764.) In other words, by definition, a leading question insinuates facts which the witness is asked to confirm or deny. Leading questions are generally permissible on cross-examination. (Evid. Code, § 767; see generally 4 Cal. Criminal Defense Practice (Matthew Bender 2008) Trial, §§ 82.20-82.21, pp. 82-47, 82-55.) Even when conducting a direct examination of an adverse witness, the prosecutor may ask leading questions. (See People v. Spain (1984) 154 Cal.App.3d 845, 851-853.)
Thus, it is not improper to ask a question of a defense witness that suggests the existence of facts harmful to the defendant if the prosecutor has a good faith belief the question will be answered in the affirmative or that facts can and will be proved if their existence is denied. (People v. Mooc (2001) 26 Cal.4th 1216, 1233-1234.)
Here, since all of the challenged questions related to the computer expert’s investigation and testimony, trial counsel could reasonably have failed to object because he held no doubt that the prosecutor (1) had a good faith belief that the questions would be answered in the affirmative, or (2) could prove the facts.
It is true that the prosecutor may not interrogate witnesses solely for the purpose of getting before the jury inference and innuendo. (People v. Pitts (1990) 223 Cal.App.3d 606, 771.) Here, however, the evidence already demonstrated that defendant’s computer harbored at least 1,984 images of child pornography downloaded from websites. In this context, the questions to defendant did not make an innuendo but rather essentially asked whether defendant knew from where the pornography came.
disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.