People v. Lang

¶1I dissent.

¶2The majority holds defendant’s appellate counsel ineffective for failing to make three arguments: (1) It is “inherently improbable” the assaults occurred because no one in the room even noticed the victims in defendant’s lap. (2) The trial judge’s comment concerning reasonable doubt indicates defendant was improperly required to prove his innocence. (3) Defendant was inadequately represented at trial. However, as the foregoing arguments would have been frivolous, counsel properly did not raise them.1

¶3*143(1) “To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.” (People v. Pearson (1969) 70 Cal.2d 218, 221 [74 Cal.Rptr. 281, 449 P.2d 217]; People v. Lyons (1956) 47 Cal.2d 311, 320 [303 P.2d 329].) Neither of the two grounds exists here. It certainly is not physically impossible for the assault to have occurred without anyone in the room noticing the victims in defendant’s lap. In fact, although defendant admittedly held a third little girl on his lap for as long as 10 minutes, no one but the child’s mother noticed. Since the alternate basis for rejection of testimony as inherently improbable requires the falsity to be apparent “without resorting to inferences or deductions,” it is incorrect for the majority to assume the defense witnesses were sober and attentive at the party or truthful when they testified. Actually, all but one admitted drinking at the party, and over half were “loaded” in one witness’ opinion. The trier of fact may reasonably have concluded that defendant’s friends lied to protect him because they were unwilling to see his family suffer the consequences of his shameful conduct.* 2

¶4(2) It would be completely unreasonable to conclude from an offhand remark that a distinguished trial judge of 14 years experience misunderstood the most fundamental principle of criminal law—that a defendant presumed innocent until proven guilty beyond a reasonable doubt. The proper subject of appellate review is judicial action, not the judge’s extemporaneous explanation of his decision to a lay defendant. (See Lincoln v. Superior Court (1943) 22 Cal.2d 304, 315 [139 P.2d 13].) To suggest this judgment might be overturned on such a ground is “to open the door to mischievous and vexatious practices.” (See DeCou v. Howell (1923) 190 Cal. 741, 751 [214 P. 444].)3

¶5(3) To obtain relief because of ineffective trial counsel, “the defendant *144must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.” (People v. Floyd (1970) 1 Cal.3d 694, 709 [83 Cal.Rptr. 608, 464 P.2d 64].) Review of the issue on direct appeal is, of course, limited to the trial court record. (See In re Hochberg (1970) 2 Cal.3d 870, 875 [87 Cal.Rptr. 681, 471 P.2d 1]; People v. Merriam (1967) 66 Cal.2d 390, 396-397 [58 Cal.Rptr. 1, 426 P.2d 161].) The requisite affirmative showing cannot be made on this record,4 as the majority virtually concedes: “It is, of course, conceivable that trial counsel did in fact explore these various approaches and found them fruitless . . . .” (Ante, p. 141.)

¶6Recognizing the record on appeal may not be “conclusive of the question,” the majority directs defendant’s present counsel to consider the possibility of alternative relief through habeas corpus. (Ante, p. 141.) As counsel below was appointed to represent defendant on appeal, he properly limited his representation to matters within the scope of appellate review. Counsel could not expect to be reimbursed for investigating possible grounds for habeas corpus relief, because a defendant’s right to appointed counsel has not been extended to applications for collateral relief. Therefore, it is both unfair and unrealistic to suggest that defendant’s appointed counsel on appeal was ineffective if he did not conduct such an investigation.

¶7Finally, by emphasizing appellate counsel waived oral argument (ante, pp. 138-139), the majority implies submission on the briefs is so unusual as to constitute lack of diligence. To the contrary, last year two-thirds of the criminal cases in the division considering defendant’s appeal were submitted without oral argument.5 Defendant’s counsel on appeal demonstrated due diligence in successfully pursuing the one arguable issue *145—procedural irregularity of the MDSO commitment—by filing a closing brief.

¶8I would affirm the convictions.

¶9McComb, J., concurred.