PER CURIAM.
AFFIRMED.
WEBSTER, DAVIS, and VAN NORTWICK, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING DISPOSITION THEREOF IF FILED.
133 Cal.Rptr.2d 561,
68 P.3d 1] [lack of consent need not be proven by direct testimony but may be inferred from use of force or duress].) We certainly do not require that victims resist. (
People v. Griffin (2004)
33 Cal.4th 1015, 1024-1025 [
16 Cal.Rptr.3d 891,
94 P.3d 1089].) Yet this is what appellant proposes here. At the time of the offenses, appellant told his victims to cooperate or be hurt. Now he contends they were required to express to him their lack of cooperation. That cannot be the law. When appellant used the knife and expressly or impliedly threatened his victims, and in the absence of any conduct by the victims indicating that they continued to consent,
the previously given consent no longer existed, either in fact or in law. (Cf.
People v. Washington (1962)
203 Cal.App.2d 609, 610 [
21 Cal.Rptr. 788] ["[c]onsent induced by fear is no consent at all"].)
Appellant does not argue that the record includes any such evidence.
Furthermore, even were we to say that these victims were required to communicate their lack of consent to appellant, we would still find substantial evidence to support the convictions. V.B. testified that she never agreed to have sex with appellant with a knife held to her neck. When appellant pressed the knife to her throat, she was afraid and began to cry. She told appellant "please don't hurt me, don't hurt me." J.W. testified that, when appellant put the knife to her neck, she asked him what he was doing and asked him to move the knife. Appellant told her to "shut up" and refused to put the knife down because he thought she might scream. A.H. testified that she said "no" when appellant put the knife to her throat. C.S. testified she was "shocked" and "scared" she might die, and that appellant told her to "do what I say and you won't get hurt." In his confession, appellant stated that C.S. told him she did not want him to use the knife.
From all of this evidence, it is clear that these victims did not continue to consent when appellant put the knife to their throats and that appellant knew they did not continue to consent. Thus, if they were required to communicate a withdrawal of consent, they adequately did so.
Substantial evidence supports each of the convictions of forcible rape, and we reject appellant's claim to the contrary.
2. CALCRIM No. 1000
Appellant contends that CALCRIM No. 1000, as given, was deficient on the issue of "withdrawal of consent." Respondent argues, first, that appellant forfeited his right to appellate review by failing to make a request that the trial court modify the instruction and, second, that, even if the instruction as given was error, it was harmless. We agree the failure to make a request to modify the instruction as given generally forfeits the right to appellate review, but we nonetheless examine the issue and find no prejudicial error. ( People v. Alvarez (1996) 14 Cal.4th 155, 222 [ 58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Johnson (1993) 6 Cal.4th 1, 52 [ 23 Cal.Rptr.2d 593, 859 P.2d 673], abrogated on another point in People v. Rogers (2006) 39 Cal.4th 826, 878-879 [ 48 Cal.Rptr.3d 1, 141 P.3d 135].)
As noted in part 1., ante, the jury was instructed, pursuant to CALCRIM No. 1000, on the issue of consent and withdrawal of consent, as follows: "To consent, a woman must act freely and voluntarily and know the nature of the act. [¶] A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if: [¶] One, she communicated to [appellant] that she objected to the act of intercourse and attempted to stop the act; [¶] Two, she communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; [¶] and Three, [appellant] forcibly continued the act of intercourse despite her objection."
Appellant argues the instruction, as given, incorrectly implied that the "rules governing withdrawal of consent appl[y] only during the act of sexual intercourse," and not before. According to appellant, this instruction erroneously limits the withdrawal of consent requirement to the situation where the woman withdraws her consent during intercourse and the jury would therefore not understand that the requirement that the woman must communicate her withdrawal applied to a "pre-penetration withdrawal of consent as well."
As noted by appellant, in People v. Vela (1985) 172 Cal.App.3d 237, 242 [ 218 Cal.Rptr. 161], the court held that consent to sexual intercourse could be withdrawn before penetration but not after. In In re John Z., supra, 29 Cal.4th 756, 763, our Supreme Court disagreed with that particular point in Vela and held that a woman could withdraw her consent to sexual intercourse at any time, even during copulation, as long as that withdrawal was clearly communicated. Appellant contends that the instruction, as given here, "preserves the artificial boundary line that was rejected in John Z." and "repeats the same error of Vela, only in reverse." In other words, appellant contends that the instruction limits the rule to a situation where the woman withdraws her consent after penetration and it implies that there is no requirement that a woman communicate withdrawal of consent prior to penetration.
Appellant further contends the instructional error was compounded by the prosecutor's argument that (a) the instruction on withdrawal of consent was inapplicable because "that knife came out prior to any [penetration]" and (b) appellant's display of the knife before penetration automatically rendered the intercourse nonconsensual without any requirement that the women communicate their withdrawal of consent.
We agree with appellant that the instruction on withdrawal of consent could have been confusing. But as we have concluded in part 1., ante, there was no evidence presented that any of the victims here ever consented to having sexual intercourse with a knife held to their throat. It was clear from the words and actions of each of the victims that they did not consent to such an act — that is, they had withdrawn their previously given consent. In the circumstances of this case, no further communication of that withdrawal was required. Thus, appellant's apprehension that the jury interpreted the instruction given as drawing a distinction between pre- and postpenetration withdrawal of consent is immaterial.
And even if the instruction as given was error, it was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243].) Besides instructing that the prosecution must prove the victim did not consent, the trial court also instructed that the prosecution had to prove that appellant "did not actually and reasonably believe that the woman consented." (See CALCRIM No. 1000.) We must presume that the jury followed this instruction ( People v. Cline (1998) 60 Cal.App.4th 1327, 1336 [ 71 Cal.Rptr.2d 41]), and thus we must conclude that the jury had no reasonable doubt that appellant knew his victims either did not consent or had withdrawn their consent.
No prejudicial error occurred.
3. CALCRIM No. 250
See footnote, ante, page 328.
Appellant contends that the trial court erred in giving CALCRIM No. 250, which is designed for general intent crimes that do not have a specific mental state element. Appellant argues the trial court should instead have given CALCRIM No. 251, which requires a union and joint operation of act and specific mental state and would have instructed the jury that it had to find that "appellant knew and believed that each prostitute did not consent at the time he engaged in sexual intercourse, and that an after-the-fact realization as to their non-consent would not suffice."
CALCRIM No. 250 (union of act and intent; general intent), as given to the jury, stated:
"The crimes charged in this case and the allegations alleged require proof of the union or joint operation of act and wrongful intent. [¶] For you to find a person guilty of the crimes charged in this case, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it's not required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation."
On appeal, appellant notes that during his interview with the officers after his arrest, he believed he was being accused of rape for failing to pay the prostitutes after the fact. He told the officers that, when some of the victims failed to request money after sex, he realized they were afraid of him, and he took advantage of that to get out of paying them. Appellant contends that from this misunderstanding, the jury could theorize that appellant's after-the-fact realization that the women were afraid of him and his after-the-fact decision not to pay them operated to invalidate consent to sexual intercourse, which then made the sexual act an act of rape. Appellant contends that this error was compounded by the prosecutor's argument in closing that "[i]t doesn't matter what [appellant] intended in his mind."
We note, however, that this statement by the prosecutor immediately followed his statement that appellant had said he didn't intend to hurt anyone.
Appellant argues that, because the jury was never instructed that failure to pay a prostitute does not amount to rape, CALCRIM No. 251, rather than CALCRIM No. 250, was the appropriate instruction to give. CALCRIM No. 251 states:
"The crime[s] [(and/or) other allegation[s] charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime[s] (in this case/of ________
insert name[s] of alleged offense[s] and count[s], e.g., burglary, as charged in Count 1 [or to find the allegation[s] of ________
insert name[s] of enhancement[s] true]), that person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/[and/or] mental state). The act and the specific (intent/[and/or] mental state) required are explained in the instruction for that crime [or allegation]. [¶] . . . [¶] [The specific (intent/[and/or] mental state) required for the crime of ________
insert name[s] of alleged offense[s], e.g., burglary is ________
insert specific intent .]"
A trial court must instruct the jury on the law applicable to a particular case, i.e., the general principles of law relevant to issues raised by the evidence. ( People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) When an appellant claims a trial court failed to properly instruct on applicable legal principles, the appellate court ascertains the relevant law and then determines the meaning of the instructions given. ( Ibid.) The proper test is whether the trial court fully and fairly instructed the jury on the applicable law. To determine whether error has occurred, we must consider the instruction as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions that have been given. ( Id. at p. 1112.) "`Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" ( Ibid.)
There are two types of criminal intent: general intent and specific intent. In People v. Hood (1969) 1 Cal.3d 444, 456-457, the Supreme Court explained the difference between the two:
"When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent."
"General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law." ( People v. Sargent (1999) 19 Cal.4th 1206, 1215.)
Rape is a general intent crime ( People v. Williams (1992) 4 Cal.4th 354, 366-367, fn. 1 (conc. opn. of Mosk, J.); see also People v. Burnham (1986) 176 Cal.App.3d 1134, 1140; People v. Franklin (1976) 56 Cal.App.3d 18, 27), and requires only the perpetrator's criminal intent to commit sexual intercourse "irrespective of or without consent." ( People v. Williams, supra, at p. 366, fn. 1; see People v. Burnham, supra, at p. 1140; Frank v. Superior Court (1989) 48 Cal.3d 632, 642 (conc. opn. of Kaufman, J.).) "The intent to engage in an act of sexual intercourse that is in fact unconsented and forcible, either purposely, knowingly, or recklessly, does not implicate an `intent to do some further act or achieve some additional consequence' beyond the `proscribed act.'" ( People v. Williams, supra, at p. 367, fn. 1.)
Thus, in the present case, the jury was properly instructed that rape, pursuant to section 261, subdivision (a)(2), was a general intent crime. (CALCRIM No. 250.) The jury was also instructed to consider the issue of consent and the absence or withdrawal thereof, and instructed that a defendant was not guilty of the crime if he had a reasonable belief that the victim consented. (CALCRIM No. 1000.) Looking at the instructions given as a whole, no error occurred.
4. Lesser Included Offense Instructions fn_
Appellant contends that the trial court should have instructed on assault and battery as lesser included offenses of rape. His theory is that, had the jury been so instructed, it might have accepted the proposition that his victims consented to sexual intercourse and merely objected to being menaced with the knife. We disagree.
In the "context of forcible rape, courts expressly have held that battery is a necessarily included offense [citations]. . . ." ( People v. Hughes (2002) 27 Cal.4th 287, 366, citing People v. Gutierrez (1991) 232 Cal.App.3d 1624, 1636 fn. 2, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901; People v. Lema (1987) 188 Cal.App.3d 1541, 1545.) And assault is a lesser included offense of a charge of battery. ( People v. Paul (1978) 78 Cal.App.3d 32, 45.) Therefore assault and battery are both lesser included offenses of forcible rape.
But the conclusion that both assault and battery are lesser included offenses of forcible rape does not mean instructions on those offenses were required in this case. "[T]he trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.]" ( People v. Lacefield (2007) 157 Cal.App.4th 249, 256.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. . . . [¶] . . . `Substantial evidence' in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed. [Citations.]" ( People v. Breverman (1998) 19 Cal.4th 142, 162.)
With one possible exception discussed below, and notwithstanding the errors appellant asserts, there simply was no evidence to support the proposition that his victims consented to sex after being menaced with the knife. Each of the victims testified to the contrary, as described ante. And in fact, appellant himself admitted (in his confession) that the victims were afraid of him and the knife.
Neither (except for the one possible exception discussed below) did appellant present a defense at trial based on any theory that the victims consented to sex but not to being threatened with the knife. His defense was amorphous to say the least. He presented testimony from two witnesses. An analyst from the Department of Justice (DOJ), who examined appellant's car, testified that he found no significant fingerprints in his examination of the car. Another DOJ analyst testified that she examined and found no blood on the knife, and that she was unsuccessful in trying to match DNA samples from the victims to stains she located in appellant's car.
In closing argument, defense counsel did his best. As to the victim V.B. (count 1), counsel told the jury to consider "the lack of corroborating evidence, a lack of physical evidence," and to acquit on that basis. As to J.W. (count 2), counsel argued the events J.W. described did not occur at the time the other evidence indicated the crimes occurred. He also attacked her credibility on the basis of inconsistencies between her testimony and her pretrial statements. The inference to be drawn was that she was not one of the victims named in the charges. As to A.H. (count 3), counsel allowed that she possibly was one of the women of whom appellant spoke of in his confession: "that could very well have been [A.H.], if you believe that [A.H.] was raped." Counsel concluded his argument with an appeal to sympathy, pointing out that appellant had not in fact inflicted any physical injury on any of the victims, had never meant to harm them, and was remorseful.
In all of these circumstances, we are confident that no error occurred in failing to instruct on assault or battery in connection with counts 1 through 3. The situation is slightly different with regard to count 4, relating to C.S. Defense counsel argued with reference to C.S. that the jury should infer, from the facts that she asked appellant to drive her home after the sexual intercourse and that she was back on the street the very next day, that she was not "actually . . . scared." Otherwise, however, counsel failed to rebut appellant's own confession that C.S. had told him she did not want him to use the knife. We do not view counsel's argument or the evidence from which it stemmed as a sufficient basis "`"from which a jury composed of reasonable [persons] could [have] . . . concluded"' that the lesser offense, but not the greater, was committed. [Citations.]" ( People v. Breverman, supra, 19 Cal.4th at p. 162.)
The suggested lesser included offense instructions were not required.
5. Uncharged Act fn_
Appellant asserts that the trial court erred by admitting evidence of his uncharged act of "window peeking" pursuant to Evidence Code sections 1108 and 352. Respondent agrees that the evidence was inadmissible under Evidence Code section 1108, but submits that any error was waived by failing to object to it at trial, and that, in any event, any error was harmless. While we find that the record shows appellant filed a motion in limine objecting to the testimony of S.M. pursuant to Evidence Code section 352, we otherwise agree with respondent: Though the evidence was inadmissible, no prejudicial error occurred.
Evidence that a person has a propensity or disposition to commit criminal acts is generally inadmissible, and is excluded because of its highly prejudicial nature. (Evid. Code, § 1101; People v. Karis (1988) 46 Cal.3d 612, 636.) The admissibility of character evidence was previously limited to establish some fact other than a person's character or disposition, such as motive, intent, identity, or common scheme and plan. (Evid. Code, § 1101, subd. (b); People v. Karis, supra, at p. 636; People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Evidence Code section 1108 provides an exception to Evidence Code section 1101 and permits the jury in sex offense cases to consider evidence of prior charged or uncharged sex offenses for any relevant purpose. ( People v. Falsetta (1999) 21 Cal.4th 903, 911-912; People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. 7.) Evidence Code section 1108, subdivision (a) states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense . . . is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 352 provides that the 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 therefore permits the trier of fact to consider a defendant's prior uncharged sex offenses as propensity evidence. ( People v. Falsetta, supra, 21 Cal.4th at p. 911; People v. Pierce (2002) 104 Cal.App.4th 893, 897.) But, as noted by both appellant and respondent, a violation of section 647, subdivision (i), "window peeking," does not fall within the definition of a "sexual offense" as defined in Evidence Code section 1108, subdivision (d), and the evidence should not have been admitted.
Nonetheless, any error on the court's part regarding the uncharged "window peeking" offense was harmless under any standard. ( Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.) The evidence of appellant's guilt was overwhelming. We see no reasonable possibility that the erroneously admitted evidence in any way contributed to the verdicts.
6. CALCRIM No. 2916 fn_
In a related argument, appellant contends that the trial court erred in instructing with both CALCRIM No. 1191 and CALCRIM No. 2916, because the underlying offense of "window peeking" to which the instructions referred was not a sexual offense within the meaning of Evidence Code section 1108. Respondent agrees that the instructions were given in error, but argues that any error was harmless. We agree with respondent.
Both parties requested the jury be instructed with CALCRIM No. 1191. The trial court stated that it would give CALCRIM No. 1191 as requested, but added that CALCRIM No. 2916 would also be given to define the uncharged offense of window peeking. Neither party objected.
A modified version of CALCRIM No. 1191, was given as follows:
"The People presented evidence that [appellant] committed the crime of loitering for the purpose of peeking. . . . That was not charged in this case.
This crime is defined for you elsewhere in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that [appellant] in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that [appellant] committed the uncharged offense, you may, but you're not required to, conclude from that evidence that [appellant] was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that [appellant] was likely to commit and did commit rape as charged here. If you conclude that [appellant] committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It's not sufficient by itself to prove that [appellant] is guilty of rape. The People must still prove the charge beyond a reasonable doubt."
The court also instructed the jury on the elements of window peeking as set forth in CALCRIM No. 2916. The Bench Notes to CALCRIM No. 1191 state that, when giving that instruction, "[t]he court must also instruct the jury on elements of the offense or offenses." (Judicial Council of Cal., Crim. Jury Instns. (2006-2007 ed.) Bench Notes to CALCRIM No. 1191, p. 1070.)
Appellant contends that the giving of CALCRIM Nos. 1191 and 2916 resulted in an instruction that permitted the jury to consider an uncharged window-peeking violation to "`conclude from that evidence that [appellant] was disposed or inclined to commit sexual offenses,'" and to "`also conclude that [appellant] was likely to commit and did commit Rape, as charged here.'" Appellant argues that People v. Reliford (2003) 29 Cal.4th 1007, 1015, identified a similar instruction (CALJIC No. 2.50.01) as a "permissive inference" instruction.
But what People v. Reliford held was that CALJIC No. 2.50.01, which is comparable to CALCRIM No. 1191, did not unconstitutionally permit the jury to convict solely on the finding that the defendant committed the prior uncharged offense, and thus did not permit conviction on less than proof beyond a reasonable doubt. "[T]he instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses." ( People v. Reliford, supra, 29 Cal.4th at p. 1013.) Instead, the instruction admonished to the contrary: that a finding of the uncharged offense was "`not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.'" ( Ibid.) Because the jury was also instructed to consider the instructions as a whole, the challenged instruction could not be interpreted to authorize a guilty verdict solely on proof of uncharged conduct. ( Ibid.; see also People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
Other than the fact the circumstantial evidence instruction permits the drawing of an inference that appellant committed the charged crime, we do not see how that instruction negates the explicit commands in CALCRIM No. 1191 that a finding appellant committed the prior uncharged offense "is not sufficient by itself to prove that the defendant is guilty of the offenses charged here," and that "[t]he People must still prove the charge beyond a reasonable doubt." Further, the jury was instructed to consider all of the instructions as a whole (CALCRIM No. 200), and that in finding appellant guilty beyond a reasonable doubt, they must consider all the evidence (CALCRIM No. 220). Given these instructions, we reject appellant's contention.
We do agree with appellant that the instructions given were inapplicable and irrelevant because "window peeking" was not a sexual offense as defined in Evidence Code section 1108 and should not have been given. Nonetheless, we conclude any error was harmless. "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." ( People v. Guiton (1993) 4 Cal.4th 1116, 1129.) "Yet such an error is usually harmless, having little or no effect `other than to add to the bulk of the charge.' [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant's prejudice." ( People v. Rollo (1977) 20 Cal.3d 109, 123, superseded by statute on other grounds in People v. Castro (1985) 38 Cal.3d 301, 307-308; see People v. Lee (1990) 219 Cal.App.3d 829, 841.)
As we have explained, the jurors were admonished that they were not permitted to find that the uncharged offense was sufficient by itself to prove that appellant was guilty of the charged offenses and that the People were still required to prove each element of the charged offenses beyond a reasonable doubt. Accordingly, appellant has not demonstrated a substantial risk that the jury was misled or that it is reasonably probable he would have obtained a more favorable result had the alleged error not occurred. ( People v. Guiton, supra, 4 Cal.4th at p. 1130 [ Watson harmless-error standard applies to analysis of factually inapplicable jury instructions]; People v. Robinson (1999) 72 Cal.App.4th 421, 429 [giving irrelevant instructions does not amount to federal constitutional error].)
7. Ineffective Assistance of Counsel fn_
Finally, appellant contends he was denied the effective assistance of counsel for the following reasons: "(1) counsel failed to request modification of CALCRIM No. 1000 so that the rules governing withdrawal of consent would clearly apply to a pre-penetration withdrawal of consent, (2) counsel allowed the prosecutor to misrepresent the law in summation by arguing that the rules governing withdrawal of consent applied only to a post-penetration withdrawal of consent, (3) counsel requested CALCRIM No. 250, which eliminated the People's burden of proving a union or joint operation of act and mental state, and allowed the prosecutor to exploit the error in summation, (4) counsel failed to argue that window peeking is not a `sexual offense' within the meaning of Evidence Code section 1108 and failed to object to CALCRIM No. 2916, and (5) counsel requested CALCRIM No. 1191 which included an irrational permissible inference."
A defendant has the burden of proving ineffective assistance of counsel. ( People v. Babbitt (1988) 45 Cal.3d 660, 707.) To establish a valid claim, a defendant must show "`. . . that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.]'" ( People v. Riel (2000) 22 Cal.4th 1153, 1175.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ( Strickland v. Washington (1984) 466 U.S. 668, 694.)
Because we have addressed each of appellant's contentions on the merits in the body of the opinion and have found either no error or no prejudicial error, his claim of ineffective assistance of counsel fails.
DISPOSITION
The judgment is affirmed.
Cornell, Acting P. J., and Poochigian, J., concurred.
Appellant's petition for review by the Supreme Court was denied December 21, 2010, S187457. George, C. J., and Werdegar, J., did not participate therein.