Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge, Super. Ct. No. 07CM0666B
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
At a joint trial, a jury found Joel Amador Espinoza and Michael Angelo Arreola guilty of first degree murder for the savage beating death of Steven Gonzales, Jr., and the trial court imposed on each a sentence of 25 years to life. (Pen. Code, §§ 187, subd. (a), 189, 190, subd. (a).) On appeal, Espinoza argues an evidentiary issue, an instructional issue, and an ineffective assistance of counsel issue and, by way of joinder in all but one of Arreola’s arguments, incorporates by reference another evidentiary issue, two other instructional issues, and a cumulative prejudice issue. (Cal. Rules of Court, rule 8.200(a)(5).) We will affirm the judgment.
To establish a right to relief on the basis of “facts, not speculation,” each party has a duty to support each issue by argument and by citations to the exact page of the record. (Cf. People v. Mattson (1990) 50 Cal.3d 826, 876-877, superseded on other grounds by statute as stated in People v. Bolin (1998) 18 Cal.4th 297, 315, fn.2; People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13; People v. Woods (1968) 260 Cal.App.2d 728, 731; Cal. Rules of Court, rule 8.204(a)(1)(C).) Espinoza breached his duty by omitting from his briefs and his joinder any argument showing how Arreola’s arguments apply to him and any citations focusing those arguments on him. Although we need not consider those arguments, we choose to do so, solely on the basis of the briefs and the joinder before us. (Cf. People v. Williams (1997) 16 Cal.4th 153, 250; People v. Marlin (2004) 124 Cal.App.4th 559, 568; In re Keisha T. (1995) 38 Cal.App.4th 220, 237, fn. 7.)
In a separate opinion filed concurrently, we likewise affirm the judgment in Arreola’s appeal. (People v. Arreola (F054435).) On our own motion, we take judicial notice of the record in his appeal. (Evid. Code, § 452, subd. (d).)
ISSUES ON APPEAL
Espinoza argues that prejudicial error arose from (1) an insufficiency of the evidence of deliberation and premeditation, (2) the trial court’s failure to instruct sua sponte with CALCRIM No. 203 on multiple defendants, and (3) ineffective assistance of counsel due to his trial attorney’s failure to move to sever his trial from Arreola’s on the ground of mutually antagonistic defenses.
Through joinder in Arreola’s arguments, Espinoza argues that prejudicial error arose from (1) the trial court’s exclusion of reputation evidence that key prosecution witness Jessica Modesto was a liar and a thief, (2) the trial court’s failure to give a sua sponte instruction on the lesser included offense of voluntary manslaughter on a theory of imperfect self-defense, (3) the trial court’s refusal of a defense pinpoint instruction on the law of motive, and (4) the cumulative impact of individual errors.
DISCUSSION
1. Premeditation and Deliberation
Espinoza argues that prejudicial error arose from an insufficiency of the evidence of deliberation and premeditation. The Attorney General argues the contrary.
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – evidence that is reasonable, credible, and of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence. (Prince, supra, at p. 1251.) The same standard of review applies to circumstantial evidence and direct evidence alike. (Ibid.)
In that light, our review of Espinoza’s judgment of conviction of first degree murder requires us to determine whether sufficient evidence of planning, motive, or method is in the record to show deliberation and premeditation. (People v. Raley (1992) 2 Cal.4th 870, 886 (Raley), citing, e.g., People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); see also People v. Pensinger (1991) 52 Cal.3d 1210, 1237 (Pensinger), citing, e.g., Anderson, supra, at pp. 26-27.) “Typically,” our Supreme Court notes, “we sustain verdicts of first degree murder when there is evidence of planning, motive and method; when evidence of all three types is not present, we require ‘either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’” (Raley, supra, at p. 887, citing, e.g., Pensinger, supra, at p. 1237.)
Our review of the record discloses all three types. Espinoza’s 15-year-old sister testified that when she awoke on the night of the killing her brother told her, “I got in a fight with some guy.” She heard a noise coming from the garage like the “little swinging noise” of a “baseball bat hitting something.” Moments later, she saw Arreola inside the garage, with an “evil look on his face,” standing with a baseball bat over a boy lying on the floor who was making a gurgling sound as if he were “trying to breathe” but “choking on something.”
Arreola told Espinoza’s sister, “The fool rushed me.” Back inside the house, he said, “Tell your mom I’m sorry, I didn’t choose the place or the time, whatever happens happens in the past.” Comparison of the genetic profile of blood found inside Espinoza’s garage with genetic samples from Arreola, Espinoza, and Gonzales eliminated Arreola and Espinoza as contributors, but not Gonzales. The probability of randomly selecting a person with that profile is one in 39 billion Hispanics.
Arreola and Espinoza were friends. Both confided in Modesto that Gonzales was killed for talking to the police. Espinoza admitted the body was in his garage. Both acknowledged difficulty getting rid of the body. Ashley Martinez bore Gonzales’s children but at the time of the killing lived with her boyfriend Arreola.
Gonzales’s partially burnt, somewhat decomposed, and still smoldering body was found wrapped in carpeting tied with knotted green electrical cord dumped on a rural roadway. Similar electrical cord with like knots was found in Espinoza’s garage, as was a hypodermic needle. Post-mortem testing of Gonzales’s body showed a high level of methamphetamine but no metabolite amphetamine at all. Metabolite amphetamine, a breakdown product of the parent drug methamphetamine, usually starts appearing within about an hour after the use of methamphetamine. The burning and decomposition of his body possibly concentrated the methamphetamine, but the pathologist nonetheless inferred that Gonzales died shortly after ingestion, possibly from administration of methamphetamine by another person.
The cause of Gonzales’s death was not the high level of methamphetamine in his body but blunt force trauma to the head causing basilar skull and cervical fractures. A baseball bat, a broom handle, a two-by-four, or a two-by-six could have caused the fatal injuries, but the pathologist opined that kicking and stomping were more likely. The body had a skull fracture from one earlobe to the other running across the top of his head. The neck was fractured, the mouth area was crushed, and one eye socket was “sunken in” from the severity of the beating he suffered.
In short, the evidence shows a savage revenge murder in the solitude of a garage during the early morning hours after either the voluntary or involuntary ingestion of a large amount of methamphetamine made Gonzales especially vulnerable to attack. A sufficiency of the evidence of planning, motive, and method alike is in the record to show deliberation and premeditation.
2. Reputation Evidence
By way of joinder, Espinoza argues that prejudicial error arose from the trial court’s exclusion of reputation evidence that key prosecution witness Jessica Modesto was a liar and a thief. The Attorney General agrees that exclusion of that evidence was error but argues that the error was harmless.
The evidentiary issue here arose during defense direct examination of Arreola’s cousin Priscilla Villa about Modesto, his aunt:
“Q. What is the reputation of Ms. Modesto within the families?
“A. Within the family I just heard that she lies and steal [sic] a lot.
“[PROSECUTOR]: Objection, hearsay. She’s just hearing, she doesn’t know what the reputation is.
“THE COURT: Sustained.
“[DEFENSE ATTORNEY]: That’s how you know reputation.
“THE COURT: The jury will disregard the response.”
Evidence Code section 1324 codifies “a well-settled exception to the hearsay rule” by which “reputation evidence as to character or a trait of character” is admissible under the rule. (7 Cal. Law Revision Com. Rep. (1965) p. 1.) Evidence Code section 1100 generally allows “any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person’s conduct)” as character evidence. Although Evidence Code section 1101 generally prohibits character evidence to prove conduct on a specific occasion, Evidence Code section 1103, subdivision (a) states an exception to the rule specifically to allow in criminal cases character evidence “in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct” to prove a victim’s conduct in conformity with his or her character. On the state of the law and the record, we agree with Espinoza and the Attorney General that the trial court’s ruling was erroneous. So we turn to the record on the issue of prejudice.
Evidence Code section 1324: “Evidence of a person’s general reputation with reference to his character or a trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule.”
Evidence Code section 1100: “Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person’s conduct) is admissible to prove a person’s character or a trait of his character.”
Evidence Code section 1101 states the general rule that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Evidence Code section 1103, subd. (a)(1) states an exception to the general rule: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Modesto testified Arreola told her that Gonzales was killed because he was talking to the police and that “they couldn’t get rid of the body,” but she admitted on the stand to having said to officers that Arreola told her, “I still can’t get rid of the body,” yet she still testified that she was “pretty sure it was we or they.” (Italics added.) Modesto testified Espinoza told her that he was involved with Gonzales’s death because Gonzales had talked to the police, that he told her, “I had to do it,” that he told her Gonzales’s body was in his garage, and that he admitted he “couldn’t get rid of the body.”
Modesto testified Arreola told her with a scary look on his face, “We just killed Ashley’s baby daddy,” or, “They just killed Ashley’s baby daddy,” referring to Gonzales as the father of Martinez’s children. (Italics added.) She claimed she was not focusing on those words because she had just awakened under the influence of methamphetamine and Vicodin. “I didn’t get to hear exactly the we, they, but I did hear, ‘killed Ashley’s baby daddy,’” she insisted. (Italics added.)
However, in reply to the question on cross-examination, “You switched the words a little bit to get him in trouble, isn’t it true?” Modesto admitted, “I mean, I was hurt with him, yes.” She acknowledged that she was upset with him for cursing, disgracing, and threatening her, even though she admitted keeping longer than she should have the hair straightener she borrowed from Martinez, and that she was angry with and hurt by him for refusing to lend her money, especially after she found out he had loaned money to someone else.
“And isn’t it true, ma’am,” Modesto was asked, “that you were gonna get him back for all the disrespectful thing [sic] he did against you, you wanna pay back?” She replied, “Well, I wasn’t planning it this way, but.” To the question, “But you wanted to pay back at some point with something?,” she admitted, “Yes. I was very hurt with him.” “You were very hurt?,” she was asked. “Yes,” she replied. “And angry?,” she was asked. “Yes,” she replied.
Additionally, Modesto admitted that she was a two-striker “for persuading a witness or something like that,” that she was still on parole after serving time in prison for multiple counts of conspiracy to defraud the state, and that she had numerous parole violations for drug use. Congruently, Villa impugned Modesto’s reputation for honesty from her familial perspective as her cousin. With no objection, she testified Modesto told her that “even though it’s family” she could bring Arreola down even if she had to make up lies and that “she’ll do what she has to do to get somebody back.”
Likewise, Lacey Lara impugned Modesto’s reputation for honesty from her familial perspective as her niece. Lara testified that since Modesto was living at Lara’s house and babysitting Lara’s daughter on the night of the killing there was no way she could have heard Arreola say anything that night about the killing of “Ashley’s baby daddy.” Lara also testified that Modesto took, and never returned, Lara’s $300 cell phone when she moved out of Lara’s house.
The record shows that the scrap of evidence at issue here – “Within the family I just heard that she lies and steal [sic] a lot” – was entirely cumulative since Modesto’s own testimony, together with that of her cousin Villa and her niece Lara, abundantly impeached her as a liar and a thief. By the federal standard of review, the trial court’s erroneous ruling was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); U.S. Const., 6th & 14th Amends.) By the state standard of review, a verdict more favorable to Espinoza was not reasonably probable in the absence of that error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Cal. Const., art. VI, § 13.)
3. Instruction on Multiple Defendants
Espinoza argues that prejudicial error arose from the trial court’s failure to instruct sua sponte with CALCRIM No. 203 on multiple defendants. The Attorney General argues the contrary.
The parties agree, and we concur, that the trial court had a sua sponte duty to instruct on multiple defendants and breached that duty by not so instructing. (People v. Mask (1986) 188 Cal.App.3d 450, 457; People v. Fulton (1984) 155 Cal.App.3d 91, 101.) So we turn to the record on the issue of prejudice.
Before counsel’s opening statements, the trial court instructed the jury on the presumption of innocence and on the prosecution’s burden of proof beyond a reasonable doubt: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” (CALCRIM No. 103.) In his opening statement, Espinoza’s trial attorney noted with care that each defendant was about to have a “separate trial” even though both were on trial together.
Before deliberations, the trial court emphasized that even though the instructions “generally pertain to one defendant” there were “obviously” two defendants and “that these really are separate trials. The instructions that I give to you apply to each defendant. Singular or plural form will apply depending on the context, but the instructions that I give apply to each defendant unless I tell you otherwise.” In language identical to that in the pretrial instruction before opening statements, the trial court again emphasized the presumption of innocence and the prosecution’s burden of proof beyond a reasonable doubt. (CALCRIM No. 220.)
Espinoza has identified no evidence, nor have we found any, that was admitted improperly against him for the reason that there were multiple defendants. The evidence against him of a deliberated and premeditated first degree murder was strong. (Ante, part 1.) By the federal standard of review, the error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; U.S. Const., 6th & 14th Amends.) By the state standard of review, a verdict more favorable to him was not reasonably probable in the absence of the error. (Watson, supra, 46 Cal.2d at p. 836; Cal. Const., art. VI, § 13.)
4. Instruction on Voluntary Manslaughter
By way of joinder, Espinoza argues that prejudicial error arose from the trial court’s failure to give a sua sponte instruction on the lesser included offense of voluntary manslaughter on a theory of imperfect self-defense. The Attorney General argues the contrary.
Even though the trial court instructed the jury on the lesser included offense of voluntary manslaughter on a theory of provocation and sudden quarrel or heat of passion (CALCRIM Nos. 522, 570), Espinoza argues that substantial evidence of imperfect self-defense required sua sponte instruction on the lesser included offense of voluntary manslaughter on a theory of imperfect self-defense (CALCRIM No. 571). He argues that “the jury certainly could have” inferred that Gonzales rushed Arreola “with something that could be used as a weapon” due to “the proximity of such items and Gonzales being under the influence of methamphetamine.”
Citing People v. Rogers (2006) 39 Cal.4th 826, the Attorney General counters that the doctrine of imperfect self-defense is narrow and that a trial court’s duty to so instruct arises only when the defendant has an actual belief in the need for self-defense and only when the defendant fears imminent harm that must be instantly dealt with. (Id. at p. 883.) Here, he argues, insufficient evidence of imperfect self-defense is in the record to impose a duty on the trial court to so instruct.
The trial court has a duty to instruct sua sponte on imperfect self-defense only if the evidence or reasonable inferences from the evidence show the defendant actually believed that he “was in imminent danger of being killed or suffering great bodily injury” and that “the immediate use of deadly force was necessary to defend against the danger” but that at least “one of those beliefs was unreasonable.” (CALCRIM No. 571, italics added.) Neither the testimony of Espinoza’s sister nor any other evidence imposed that duty on the trial court. With admissions by both Arreola and Espinoza that Gonzales was killed for talking to the police, the record shows a classic revenge killing with “no evidence from which a jury could reasonably conclude defendant held an actual or honest belief in the need to defend against imminent danger.” (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.)
5. Instruction on Motive
By way of joinder, Espinoza argues that prejudicial error arose from the trial court’s denial of a defense pinpoint instruction on the law of motive. The Attorney General argues the contrary.
The trial court instructed the jury on motive with CALCRIM No. 370:
“The People are not required to prove that the defendant had a motive to commit the crime charged. In reaching your verdict you may, however, consider whether the defendant had a motive.
“Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
The trial court refused, however, to add the following language in the standard instruction on motive:
“However, having a motive to kill by itself is not sufficient to find the defendant guilty of the charge. The People must prove each element of the charge beyond a reasonable doubt in order to find the defendant guilty of the crime.”
In appropriate circumstances, a trial court has a duty to grant a request for a pinpoint instruction on a defense theory of the case that, among other things, relates the reasonable doubt standard of proof to particular elements of the crime charged, but a trial court need not give a pinpoint instruction that is argumentative, merely duplicates other instructions, or is not supported by substantial evidence. (People v. Bolden (2002) 29 Cal.4th 515, 558.) “An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution’s burden to prove guilt beyond a reasonable doubt.” (Id. at pp. 558-559.) So a trial court “is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions.” (Id. at p. 559.)
Our Supreme Court has rejected repeated challenges to CALJIC No. 2.51, the predecessor motive instruction to CALCRIM No. 370. In People v. Wilson (2008) 43 Cal.4th 1, the court found the instruction compliant with federal and state constitutional burden of proof and reasonable doubt requirements. (Id. at pp. 21-22, citing, e.g., People v. Cleveland (2004) 32 Cal.4th 704, 750.) In People v. Snow (2003) 30 Cal.4th 43, the court held that the instruction did not suggest that motive alone was sufficient to establish guilt but instead informed the jury that motive was not an element of murder and need not be shown, which left “little conceptual room for the idea that motive could establish all the elements of murder.” (Id. at pp. 97-98.) Congruently, we have rejected numerous challenges specifically to CALCRIM No. 370. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1192-1193.)
CALJIC No. 2.51: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.”
The standard instruction on motive adequately and accurately states the law. The additional language requested merely duplicated the language in the standard instruction. The trial court correctly instructed the jury on the burden of proof, on proof beyond a reasonable doubt, on intent, and on the elements of murder. (CALCRIM Nos. 220, 225, 500, 520, 521, 522, 570.) On the law and the record, the trial court’s denial of the defense pinpoint instruction on the law of motive was not error.
6. Cumulative Error
By way of joinder, Espinoza argues that prejudicial error arose from the cumulative impact of individual errors. The Attorney General argues the contrary. The sole error here was the harmless failure to instruct sua sponte on multiple defendants. (Ante, part 3.) On that record, Espinoza’s cumulative error argument is meritless. (See People v. Bradford (1997) 15 Cal.4th 1229, 1344.)
7. Ineffective Assistance of Counsel
Espinoza argues that prejudicial error arose from ineffective assistance of counsel due to his trial attorney’s failure to move to sever his trial from Arreola’s on the ground of mutually antagonistic defenses. The Attorney General argues the contrary.
“The Legislature has stated a preference for joint trials where defendants are jointly charged.” (People v. Singh (1995) 37 Cal.App.4th 1343, 1374 (Singh), citing Pen. Code, § 1098; see People v. Boyde (1988) 46 Cal.3d 212, 231.) “In fact, a ‘“classic” case for joint trial is presented when defendants are charged with common crimes involving common events and victims.’” (Singh, supra, at p. 1374, quoting People v. Keenan (1988) 46 Cal.3d 478, 499-500 (Keenan).) Here, neither Arreola nor Espinoza filed a motion to sever. Nonetheless, a trial court has the discretion to order separate trials “‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’” (People v. Avila (2006) 38 Cal.4th 491, 574-575 (Avila), italics added.) “Severance remains largely within the discretion of the trial court.” (Keenan, supra, at p. 500.)
Espinoza argues prejudice from the evidence that he replied, “I didn’t mean to,” and, “It was an accident,” to James Villafana’s question why the police were raiding his house. That indirect admission was far less damning than his outright admission to Modesto that he killed Gonzales for talking to the police and was having difficulty getting rid of the body in his garage.
Espinoza complains about his sister’s reply, “Yes,” to Arreola’s trial attorney’s question on cross-examination, “And you will do anything to save Mr. Espinoza, your brother, correct?” He neglects to mention, however, that in reply to basically the same question by Arreola’s trial attorney, “You want to save him?,” she testified, “Well, I have to tell the truth, right?”
Espinoza argues Arreola’s trial attorney’s closing argument to the jury shows prejudice. He argued that in light of “overwhelming evidence” of his guilt Espinoza knew he had “to come up with a story,” so he persuaded his sister to testify falsely that she saw Arreola in the garage with a baseball bat. Her “motive,” Arreola’s trial attorney argued, was “to save her brother.” In short, “Mr. Arreola was set up.”
On the state of the law on antagonistic defenses and severance, Espinoza’s argument is meritless. A joint trial is preferred even though the defendants present antagonistic defenses and seek to shift responsibility to each other. (See People v. Cummings (1993) 4 Cal.4th 1233, 1286-1287; People v. Turner (1984) 37 Cal.3d 302, 312-313, overruled on another ground by People v. Anderson (1987) 43 Cal.3d 1104, 1149; Pen. Code, § 1098.) Antagonistic defenses do not per se require severance even if the defendants are hostile or attempt to cast the blame on each other. (People v. Tafoya (2007) 42 Cal.4th 147, 162.) Rather, to obtain severance on the ground of antagonistic defenses, the defendant has the burden of showing that the conflict is so prejudicial that the defenses are irreconcilable and that the jury will unjustifiably infer that the conflict alone demonstrates that both are guilty. (Ibid.) On a record of strong evidence against Arreola and Espinoza alike of deliberated and premeditated first degree murder, Espinoza fails to make the requisite showing. (See ante, part 1.)
Espinoza likewise fails to show that the absence of a motion to sever constitutes ineffective assistance of counsel. The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “‘ample opportunity to meet the case of the prosecution.’” (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) Espinoza fails to make the requisite showing. Since the law neither does nor requires idle acts, an attorney has no duty to make a futile request and does not render ineffective assistance of counsel by not doing so. (Civ. Code, § 3532; see People v. Anderson (2001) 25 Cal.4th 543, 587.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Cornell, J.