Filed 11/6/18 In re Fidone CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Jonathan Joseph Fidone seeks habeas relief on the ground that his appointed trial counsel, Albert Cantu, was prejudicially deficient in turning over to the prosecution in advance of trial the defense investigator’s report on his interview with the prosecution’s main witness, Jimy Reyna. This report was highly incriminating, and the defense investigator, David Godoy, became the primary prosecution witness at trial, providing a far more incriminating account of Reyna’s observations than Reyna provided at trial or to the prosecution in advance of trial.

After a trial at which both Godoy and Reyna testified, the jury convicted defendant of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)),[1] forcible lewd conduct on a child (§ 288, subd. (b)(1)), and aggravated sexual assault by forcible sexual penetration on a child (§ 269, subd. (a)(5)), and he was committed to state prison to serve an indeterminate term of 15 years to life for the aggravated sexual assault count consecutive to an eight-year determinate term for the forcible lewd conduct count. Defendant appealed and sought habeas relief based on ineffective assistance of counsel. We affirmed the judgment, but we issued an order to show cause (OSC) returnable in the San Benito County Superior Court on his habeas petition.

After an evidentiary hearing, the San Benito County Superior Court ruled that Cantu’s deficiency in turning over Godoy’s report to the prosecution was not prejudicial. Defendant again sought habeas relief in this court. We issued an OSC returnable in this court, and the Attorney General filed a return in which he contended that defendant’s trial counsel was not deficient and that any deficiency was not prejudicial. We disagree and grant relief.

I. Factual Background

On July 17, 2010, defendant had been caring for his live-in girlfriend’s 19-month-old daughter Jane Doe for a couple of days while his girlfriend was staying at a Santa Cruz hospital with her mother. Jane had been sick with the flu, had been vomiting, “had really bad diarrhea and she had a really bad rash.” Her rash was associated with “a rare skin infection, MRSA.” Jane’s diarrhea, flu, and MRSA infection had been documented during a hospital visit on July 12.

On July 17, 2010, defendant’s girlfriend tried to reach him by phone to have him pick her up from the hospital, but she had trouble reaching him. Eventually, she reached him that afternoon, and he told her “if I wanted my daughter, he would leave her in the car on the side of the road and I would have to come find her.” She told him she would “call the cops” if he did that, and he hung up on her and turned off his phone. After unsuccessfully trying to reach defendant again, she called the Sheriff’s Department even though she did not believe he would do as he said and “knew he was just trying to piss me off . . . , and he was just trying to make me mad.”

At 4:38 p.m., defendant purchased a pink dildo at a “sex shop” in Santa Cruz. This shop was about 45 minutes away from the Hollister home where defendant, his girlfriend, and Jane had been living. At some point that afternoon, after their earlier conversation, defendant called his girlfriend and told her he was in Santa Cruz, and she told him to meet her at the hospital. He “never showed up.” This “was normal because me and him fought a lot . . . .”

Jimy Reyna was defendant’s cousin, and defendant was living at Reyna’s mother’s house. Reyna was outside Reyna’s mother’s house with his children when defendant arrived at the home in the late afternoon or evening with Jane. Defendant had bloodshot, red eyes, and he looked “[l]ike he must have been using something.” He took Jane into the room in the garage where he, his girlfriend, and Jane were living. Ten to 15 minutes later, Reyna knocked on the door of the room, but he got no response. Reyna went back outside and tried to look in the window of the room. He saw Jane “on the bed” with “no clothes on.” Reyna could not see defendant at all through the window. He also saw Jane “getting pulled forward,” and “[t]hen shortly after she started crying.” Reyna described what he saw through the window. “Well, there was a tug forward towards the edge of the bed, and then there was -- it looked like she was getting thrusted up and down or back and forth, whatever you want to call it.” He saw “[n]othing else” through the window. Reyna returned to the door to the room “and tried to get in” because “something didn’t seem right.” The door was locked, but Reyna, who had lived in the room previously, was able to unlock it with a screwdriver and enter the room. Reyna saw Jane on the bed and defendant standing “in the corner of the room.” Jane was still naked, but she was not crying. Defendant was wearing a shirt, but his shorts “were around his ankles” and he was holding a towel in front of him.

Defendant told Reyna that he was “changing the baby.” Reyna thought that defendant was “maybe molesting” Jane based on what he had seen through the window, and he accused defendant of doing so. Defendant “denied it.” Reyna told defendant to put clothes on Jane, and defendant put a diaper on her. Reyna asked defendant “if I took Jane Doe in to get looked at that they will tell me that there is nothing, you know, out of the ordinary. And he said no, maybe other than the rash that was going on.” Reyna told defendant to leave and not to take Jane, and defendant left.

When Reyna’s fiancée and Reyna’s mother took Jane’s diaper off to bathe her, they saw blood in her diaper. Jane was crying. They put “diaper cream” on a “blistery” area “[a]round her vaginal area” that appeared to be a “bad rash,” but Jane continued to cry. After the bath, they put a fresh diaper on Jane and dressed her, and Reyna and his fiancée took Jane to the hospital.

At the hospital, Jane was examined by Timothy Wootten, a physician assistant. He observed “a rash” on Jane’s perianal area and observed that “blood was present.” Because he found “things that were potentially suspicious for abuse,” he reported his observations to the police with a request that Jane have “a follow-up examination done by a professional in sexual abuse cases.” Wootten told the police that Jane had “some tears on her rectum that could or could not have been caused by trauma or a diaper rash.”[2] Jane had one “more significant tear to the rectum” that “could be due to either trauma or like a fissure, which is a tear in the rectum from being constipated or having a hard bowel movement or -- or a very significant rash.” This tear was “more likely to be from constipation . . . or trauma.”

When defendant’s girlfriend reached defendant by phone on the evening of July 17, he told her he had left Jane with Reyna. At about 11:00 p.m., she received a call from Detective Anderson, who told her that Jane was at a hospital and “we think she was sexually assaulted.”

Defendant called his girlfriend a couple of hours later, and she “told him what was happening and what was being said that he did. And he didn’t really deny it . . . .” Defendant’s girlfriend subsequently made a recorded phone call to defendant. During this call, defendant repeatedly denied having done anything to Jane. He described what he remembered. Defendant said Jane was naked “ecause there was blood on her, and I took off her diaper and I threw it away, and so the blood apparently got on the bed. And then I was getting ready to change, and she started screaming so I covered her mouth. And then Jimmy [sic] saw me right there looking at her, because I was trying to figure out, like, why she was bleeding. It wasn’t just like a little bit of blood, there was quite a bit of blood.” “I mean it probably looked wrong, but I wasn’t doing anything with her. I covered her mouth, and I was, like, in the middle of changing, and so I wasn’t about to open the door. Then she started screaming, so I went over and covered her mouth, because that’s what I do and then usually she stops.” Defendant said he didn’t open the door for Reyna because “I was in the middle of changing” and Reyna “only knocked once.” “I saw it [(the bleeding)] and I wiped it up, and then I just let her sit there for a couple of seconds, and then I was going to call and tell you about it . . . .”

[b]II. Trial Court Proceedings Leading to Judgment

Cantu was appointed to represent defendant in September 2010 after defendant’s original appointed counsel withdrew. Godoy was Cantu’s investigator. In October 2010, defendant waived preliminary examination. Godoy interviewed Reyna in December 2010.

The prosecution’s April 2011 trial brief contained a list of 11 witnesses. Reyna was on this list; Godoy was not. The prosecution’s brief described Reyna’s observations through the window thusly: “When Mr. Reyna went outside to look into the bedroom window, he stated that he observed the defendant covering Jane Doe’s mouth and that she appeared to be screaming.” No other observations through the window were described.

Cantu’s April 2011 trial brief’s witness list stated: “THE DEFENSE INTENDS TO CROSS EXAMINE THE WITNESSES SET FORTH IN THE PROSECUTIONS [sic] TRIAL BRIEF.” It then listed the same 11 witnesses identified in the prosecution’s trial brief. In June 2011, Cantu filed another trial brief that contained a witness list with the same proviso but listed an additional 50 witnesses. Godoy was not on this list.

Trial commenced in June 2011. In her opening statement, the prosecutor told the jury that a nurse would testify that Jane’s “injuries were consistent with anal trauma” and a criminalist would testify that defendant’s DNA was found on Jane.

Cantu conceded in his opening statement that there would be evidence that defendant’s “sperm” had been found on Jane’s “labial wall.” He told the jury that he would present “evidence that [defendant] was alone in that room, and on several occasions masturbated, and without any other source of cleaning himself, he used a towel.” The police found that towel, which “had what appeared to be blood stains or red spots on the towel.” He asserted that defendant had used this same towel “to clean that baby” because “there are no wipeys” and “the baby has a rash and is soiled.” Cantu told the jury that “microscopic levels [of sperm] . . . can easily be transferred from a towel to a vagina if it’s used to clean that person.” He emphasized that Jane’s injuries would be consistent with the prosecution’s theory “in the absence of a history of diarrhea,” but Jane had such a history.

Reyna was the third prosecution witness at trial. He testified that on July 17, 2010 he “saw something” at his mother’s home. Reyna testified that he saw Jane through the window “on the bed” with “no clothes on.” Reyna could not see defendant at all through the window. He also saw Jane “getting pulled forward,” and “[t]hen shortly after she started crying.” Asked to describe Jane’s movement, Reyna said: “Well, there was a tug forward towards the edge of the bed, and then there was -- it looked like she was getting thrusted up and down or back and forth, whatever you want to call it.” He saw “[n]othing else” through the window. When he entered the room, Reyna saw Jane on the bed and defendant standing “in the corner of the room.” Jane was still naked, but she was not crying. Defendant was wearing a shirt, but his shorts “were around his ankles” and he was holding a towel in front of him. Defendant said that he was “changing the baby,” but Reyna thought that defendant was “maybe molesting” Jane. The prosecutor asked Reyna if he recalled giving a statement to Godoy. Reyna said he did, but he testified that he had not provided Godoy with any additional details.

The next prosecution witness after Reyna was Godoy.[4] Godoy testified that he had taken a statement from Reyna in December 2010 and prepared an “investigation report” documenting that statement. The prosecutor had Godoy read three portions of his report into the record. The first portion read: “ ‘Jimy stated he could fully see [redacted] laying on the bed on her back face up naked on the west edge of the bed. [redacted] was not crying. He then saw Jonathan’s arm. He could only see his arm reach from the southeast side blind spot of the bedroom and grab [redacted] by one of her legs. He could not remember which arm reached or which leg was grabbed. [redacted] was then pulled by her leg toward the southeast edge of the bed. She started to cry as she was pulled. By the time Jonathan stopped pulling [redacted], he could not see Jonathan at all and could only see about one quarter of [redacted], which included her head and part of her upper shoulders. When he stopped pulling [redacted], she stopped crying. Jimy observed [redacted]’s head and shoulders then start to repeatedly and rhythmically move up and down in a north to south direction by about two inches. As soon as [redacted] started moving up and down, Jimy could immediately see and hear [redacted] screaming out loud. Jimy then saw Jonathan’s arm and hand reach out from the blind spot area. Jonathan cupped his hand and covered [redacted]’s mouth, not her nose, to attempt to stop her from screaming. During this time [redacted] continued to be moved in an up and down motion. Jimy could not see the lower half of [redacted] and could not see what was occurring other than Jonathan covered her mouth. Based on the entire situation, he believed Jonathan was molesting [redacted] in some manner.’ ”

The second portion read: “ ‘The third thing he saw was Jonathan standing straight up with his back towards the east end side of the room between the bed and the TV. Jonathan had his shirt on, he could not remember what type of shirt, had his boxer shorts down wrapped around his ankles, and was using both his hands to hold a blue and white beach type towel fully open and lengthwise facing down in front of him. Jonathan was using the towel to cover up the front of himself up. Near the middle of the towel he could see a bump indicating Jonathan had an erection. On the floor right next to Jonathan’s right foot north side he could see the pink dildo on top of the bed next to Jane Doe, east side of Jane Doe. Jimy saw an open porn magazine, could not remember which type of porn, where there were porn magazines on the floor and porn video was being played on the TV. Jimy stated he never inspected Jane Doe close enough to see her sexual parts or to see if she was bleeding or injured in that area.’ ”

The third portion read: “ ‘Jimy stated when Jonathan stayed alone in the room just after the incident had occurred he must have tried to hide the pink dildo because when he, Jimy, first saw the dildo it was on the open floor next to Jonathan’s foot. However, after Jonathan had left the residence, the pink dildo was later found hidden behind the TV wrapped in porn magazines.’ ”

On cross, Cantu elicited Godoy’s testimony that Reyna’s statement “looks bad,” and Godoy also testified that Reyna “appeared to . . . have like some type of learning disability, and . . . his memory didn’t seem to be the greatest . . . .” Godoy explained that the statement “was not verbatim, it was basically like pulling teeth. Because like I said, his memory didn’t seem to be the greatest, and I kind of had to piece it together.” “I put it together the best I could based on what he had told me, kind of piecemeal.”

At the end of the day on which Godoy testified, the court held a hearing outside the presence of the jury. “[THE COURT:] Earlier today the deputy district attorney informally requested and advised the court that she intended to call Mr. Godoy, the defense investigator, regarding the statement that he took from Jimy Reyna that was made with him in December. And the offer was that it was past recollection recorded. During our informal meeting the defense objected.” The court gave Cantu an opportunity to describe his objection. Cantu explained that he believed that the prosecution had not established an appropriate foundation for the introduction of that evidence. The court overruled the objection.

Defendant’s doctor, Kenneth Jiang, testified very briefly for the defense that defendant had been diagnosed with attention deficit hyperactivity disorder (ADHD) in 2001 when he was 12 years old. Defendant continued to suffer from ADHD the last time Jiang saw defendant in 2009. ADHD causes “inability to focus, inability to follow through with things.” An educator who had evaluated defendant when defendant was in sixth grade in 2000 testified that defendant “had difficulty retaining information.”

The prosecutor argued to the jury that defendant had “a plan to use this dildo” to sexually abuse Jane because he had purchased the dildo in advance. Her argument relied heavily on the statements Reyna had made to Godoy. Cantu argued that the prosecution had failed to present the jury with crucial evidence because some witnesses were not called and the prosecution did not have the diapers, towel, boxers, and bedsheet tested or at least did not introduce evidence of the results of any testing. Cantu pointed out that Prows had testified that “diarrhea alone can cause a fissure.” He argued that the sperm on Jane had come from the towel. “I mean that’s what semen does. It transfers.” “It’s not that hard to get a microscopic little tiny piece, not even visible to the naked eye, on the vagina if you are using a towel and that’s the same towel you used to wipe yourself off with.”

During deliberations, the jury requested “Statement made by Jimmy [sic] Reyna.” The trial judge asked the jury if it wanted Reyna’s testimony or Godoy’s testimony about Reyna’s statement, and the jury asked for “ ‘both.’ ” That testimony was read to the jury. The jury deliberated for less than four hours before delivering guilty verdicts on all three counts.

Cantu filed a motion for a new trial based on juror misconduct, which was denied. Defendant was sentenced to 15 years to life for the aggravated sexual assault on a child count consecutive to an eight-year determinate term for the forcible lewd act on a child count. This court affirmed the judgment on appeal but issued an OSC returnable in the superior court in response to defendant’s habeas petition contending that Cantu was prejudicially deficient.

III. Post-OSC Proceedings in the Superior Court

In December 2014, the prosecution filed a return in the superior court denying all of the allegations in defendant’s original habeas petition. The return asserted that defendant could not show prejudice arising from Cantu turning over Godoy’s report to the prosecution because defendant could not establish that the prosecution could not otherwise have discovered the details in Godoy’s report and presented them at trial. Defendant filed a traverse asserting that Cantu had been prejudicially deficient in turning over Godoy’s report to the prosecution.

The superior court[5] issued a brief written decision denying defendant’s petition. The decision (in its entirety) read: “The Petitioner alleges a number of acts and omissions on the part of the petitioner’s trial counsel, Arthur Cantu. He argues that based thereon, the petitioner’s conviction should be set aside and he be given a new trial. This Court does not agree. [¶] PART I: [¶] During the course of the pre-trial investigation, Defense Investigator Godoy interviewed Jimmy [sic] Reyna, a prosecution witness. Thereafter, Mr. Reyna’s statement was included in a written report which was turned over to the prosecution. There is no doubt that turning over the report of Mr. Reyna’s statement was not required by Penal Code Section 1054.3. The witness’ testimony at trial was devastating to the Petitioner. But in light of the fact that the Prosecution was aware of the witness’ existence prior to the disclosure of the report and the report was never referred to during the trial the disclosure had no effect on the outcome of the Petitioner’s trial. [¶] PART II: [¶] As to the rest of the petitioner’s allegations, the Court has read and considered the points raised. Contrary to the petitioner’s argument, the Court finds Mr. Cantu’s testimony during the hearing to be credible. [¶] Ultimately, assuming all of the petitioner’s allegations, the Court finds that there is no reasonable probability that, but for Mr. Cantu’s omissions, the result of the underlying criminal proceeding would have been different. [¶] The evidence of guilt presented at trial was overwhelming.”

The prosecutor responded to the decision with an e-mail to the court. “I received your written decision on the Fidone Writ of Habeas Corpus. You stated in Part I. of your decision that the report written by Investigator Godoy was never referred to during the trial. However, the report was referred to during my direct examination of Investigator Godoy. [Citations to RT from trial] Also, during the course of his testimony, Investigator Godoy read excerpts from his report into the record. The fact that the report was referred to during the trial was likely not addressed at the evidentiary hearing held on April 27, 2015.”

The court responded to the prosecutor on the same day it received the e-mail: “Since the fact it was used was not ersbrought [sic] up at the hearing on April 27, I mistakenly assumed it was not referred to during the Petioner’s [sic] trial. The fact that it was used does not change my conclusion.” Defendant’s attorney filed a motion for reconsideration, which the court denied.

IV. Analysis

“Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.” (People v. Duvall (1995) 9 Cal.4th 464, 474.) An ineffective assistance of counsel claim has two prongs. The petitioner must show that his trial counsel’s performance “ ‘fell below an objective standard of reasonableness’ ” and that his counsel’s deficiencies were prejudicial. (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.) “ ‘[D]efendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (Id. at p. 1070.) “Judicial scrutiny of counsel’s performance must be highly deferential. . . . [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland).) Whenever counsel’s conduct can be reasonably attributed to sound strategy, a reviewing court will presume that the conduct was the result of a competent tactical decision, and the petitioner must overcome that presumption to establish ineffective assistance. (Ibid.)

While we give deference to the superior court’s credibility findings, we do not defer to that court’s other determinations. “ ‘The central reason for referring a habeas corpus claim for an evidentiary hearing is to obtain credibility determinations [citations]; consequently, we give special deference to the referee on factual questions “requiring resolution of testimonial conflicts and assessment of witnesses’ credibility, because the referee has the opportunity to observe the witnesses’ demeanor and manner of testifying” [citation]. [¶] Though we defer to the referee on factual and credibility matters, in other areas we give no deference to the referee’s findings. We independently review prior testimony [citation] as well as all mixed questions of fact and law [citation]. Whether counsel’s performance was deficient, and whether any deficiency prejudiced the petitioner, are both mixed questions subject to independent review. [Citation.] Ultimately, the referee’s findings are not binding on us [citations]; it is for this court to make the findings on which the resolution of [petitioner’s] habeas corpus claim will turn [citations].’ [Citations.]” (In re Hardy (2007) 41 Cal.4th 977, 993-994.)

A. Deficient Performance

Defendant contends that Cantu was deficient in turning over Godoy’s report to the prosecution in advance of trial. He maintains that no reasonably competent attorney would have done so.

“A defendant’s discovery obligations are fairly narrow and purely statutory.” (S.V. v. Superior Court (2017) 13 Cal.App.5th 1174, 1184.) “The defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons . . . .” (§ 1054.3, subd. (a), italics added.) “[T]he prosecution’s right to discover defendant’s witnesses under section 1054.3 is triggered by the intent of the defense to call that witness.” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375.) “[T]he defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecution’s case during cross-examination.” (Id. at p. 377, fn. 14; accord Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1165 (Hubbard); People v. Hunter (2017) 15 Cal.App.5th 163, 177.) “[T]he prosecutor is not entitled to discover notes prepared by a defense investigator that relate to an interview of a ‘prosecution’ witness unless and until the defense announces an intent to call the defense investigator as a witness.” (Hubbard, at p. 1165, italics added.)

The Attorney General concedes in his return in this court that Cantu was not obligated to disclose Godoy’s report to the prosecution unless he intended to call Reyna as his own witness. However, he argues that Cantu “made a reasonable tactical decision to turn over the report” to “maintain[] credibility in the jury’s eyes” if the prosecutor asked Reyna at trial if Reyna “spoke with anyone” and to preserve the possibility of calling Reyna as a defense witness. The Attorney General’s “reasonable tactical decision” claim cannot withstand scrutiny.

“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” (Strickland, supra, 466 U.S. at pp. 690-691.) “[T]he defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.] If counsel fails to make such a decision, his action—no matter how unobjectionable in the abstract—is professionally deficient.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” (Hinton v. Alabama (2014) 571 U.S. 263, 274.)

Cantu’s testimony at the evidentiary hearing, which the superior court credited, established that his decision to turn over Godoy’s report was not a reasonable strategic decision because it was not made “after thorough investigation of law and facts relevant to plausible options . . . .” (Strickland, supra, 466 U.S. at pp. 690-691.) Cantu testified that, in every case regardless of the facts, he always listed every prosecution witness as a defense witness in order to preserve the possibility of calling a prosecution witness as a defense witness. Cantu testified: “If he is a percipient witness obviously called by the prosecution I will instantly submit it because it is my intention to list them as a witness because my intention to put any -- any prosecution witness as my witness also so I am not limited to cross-examination.” Cantu adamantly insisted that he had a blanket policy of listing every prosecution witness as a defense witness regardless of the facts. “[T]hat’s my practice. All of her witnesses or the prosecution’s witnesses are going to be my witnesses . . . .” “A. [Cantu]. . . . If there is a percipient witness or a material witness from the prosecution and I have a statement from that same witness, I’m going to introduce that statement period. [¶] Q. [defendant’s new attorney]. Even if it’s horrible for your client? [¶] A. Yeah. [¶] Q. Even though the law says your duty is to Mr. Fidone, you are going to turn it over to the prosecution? [¶] A. Yeah.” And Cantu admitted that he turned over Godoy’s report even though he knew that it was “damaging” to the defense, contained “very, very damaging information,” and “really hurt” defendant’s case. When Cantu was asked whether he actually intended to call Reyna to testify as a defense witness at trial, Cantu asserted only that he “did not want to close the door” on his “ability to call him as a witness, that’s why I submitted the -- that’s one reason I submitted the report from Officer Godoy.”

Under these circumstances, Cantu’s decision to list Reyna as a defense witness and thereby trigger an obligation to turn over Godoy’s report to the prosecution cannot possibly be considered a reasonable strategic decision. Cantu admitted that his decision to list Reyna as a defense witness was merely part of his “practice” of listing every prosecution witness as a defense witness in every case and that he did so solely to leave open the possibility of calling Reyna as a defense witness. As the expert testimony at the evidentiary hearing established, such conduct by a defense attorney is grossly incompetent. A criminal defense attorney is obligated “not to give” a report like Godoy’s to the prosecution and should instead “put it away and not mention it.” “In this particular case there is no competent lawyer who would ever call this witness to the stand based on the report that they had received from their investigator.” Turning over this report to the prosecution violated Cantu’s duty of loyalty to his client. No competent attorney would have intended to call Reyna or Godoy as a defense witness and thereby create an obligation to turn over Godoy’s report.

The Attorney General asserts that Cantu made a reasonable strategic decision to turn over Godoy’s report in order to preserve “credibility” if Reyna testified that he had spoken to Godoy as such testimony might cause the jury to conclude that “defense counsel was ‘holding out’ on them by withholding evidence from a percipient witness.” At the evidentiary hearing, Cantu firmly maintained his position that he made no attempt to weigh the risk to defendant of disclosure against the risk to defendant of nondisclosure. He did note that he was concerned that if Reyna testified he had spoken with Godoy “I would be questioned by the jury on why I am keeping back evidence that was obtained by the defense.” “[T]he jury may find out that I was holding back a statement, that that statement ultimately is subpoenaed or brought out, I don’t have attorney-client privilege on it, it would be -- it would be materially damaging to the defense.” Cantu also testified that he was “afraid” that he “could be accused of obstructing of justice or withholding evidence” or “sanctioned by the court.”

Even if Cantu considered these possibilities to pose a risk of damage to the defense, his testimony at the evidentiary hearing affirmatively established that he never weighed that risk against the far greater and more tangible risks that would follow from disclosing the “horribly damaging” contents of Godoy’s report. Again, under these circumstances, no reasonably competent defense attorney could have concluded that the possibility that Reyna might mention having spoken to Godoy posed a risk that outweighed the risk posed by the extremely damaging information in Godoy’s report. Cantu’s decision to list Reyna as a defense witness and to disclose Godoy’s report to the prosecution was not a reasonable strategic decision; it was plain incompetence.

The Attorney General insists that Cantu’s decision was not deficient because Godoy’s report was not “devastating” but merely “provided more detail suggesting that something of a sexual nature was occurring.” While the Attorney General argues that Cantu’s action in disclosing the report would not be deficient if the report was not devastating, that argument is relevant only to the question of whether Cantu’s action was prejudicial. Even if it were true that the report was less than “devastating,” Cantu’s decision to disclose it to the prosecution was deficient. We proceed to the prejudice inquiry.

B. Prejudice

“[T]he defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland, supra, 466 U.S. at p. 687.) “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” (Strickland, at p. 694.)

The Attorney General argues that Godoy’s report added very little to the evidence against defendant and therefore its disclosure was not prejudicial. We disagree. Reyna’s observations were critical to the prosecution’s case against defendant. Without Godoy’s report, the prosecution would have been restricted to Reyna’s limited trial testimony and the statements he made to the police at the hospital on the evening of the incident, which were not introduced at trial.

At trial, Reyna testified that he saw Jane through the window “on the bed” with “no clothes on” but could not see defendant at all through the window. What he could see was Jane “getting pulled forward,” and “[t]hen shortly after she started crying.” He saw “a tug forward towards the edge of the bed, and then there was -- it looked like she was getting thrusted up and down or back and forth, whatever you want to call it.” He saw “[n]othing else” through the window. When he went into the room, he saw Jane naked on the bed and defendant standing “in the corner of the room” with his shorts “around his ankles” and holding a towel in front of him. His observations suggested to Reyna that defendant was “maybe molesting” Jane.

Reyna had told the police that after defendant took Jane into the garage room, Reyna became concerned because he knew that defendant liked to use drugs. Half an hour after defendant went into the room, Reyna knocked on the door, received no response, and found the door locked. He went to the window and saw defendant covering Jane’s mouth and Jane appearing to be screaming. Reyna did not describe any other observations through the window. Reyna then entered the room and found defendant with a towel covering the front of his body and his pants and underwear at his ankles. Jane was lying naked on the bed. Reyna asked defendant why he was unclothed, and defendant said he was “just changing.” Reyna told the police that he “wasn’t sure” if defendant had “done anything to” Jane, but the circumstances made him “very concerned.”

Godoy’s report, on the other hand, gave a much more damaging version of events. Godoy’s report stated that Reyna told Godoy that he “saw Jonathan’s arm” reach out and “grab [Jane] by one of her legs,” and pull her “by her leg toward the southeast edge of the bed,” at which point Jane “started to cry,” “Jonathan stopped pulling,” and Jane “stopped crying.” After this, Reyna said that Jane’s “head and shoulders started to repeatedly and rhythmically move up and down in a north to south direction by about two inches,” and Jane began “screaming out loud.” At this point, Reyna “saw Jonathan’s arm and hand reach out,” “Jonathan cupped his hand and covered [Jane]’s mouth, not her nose, to attempt to stop her from screaming,” while Jane “continued to be moved in an up and down motion.” Godoy also reported that Reyna told him that he “believed Jonathan was molesting [Jane] in some manner.” Godoy’s report further asserted that Reyna had reported additional observations he made after he went into the room. The key one was that Reyna “could see a bump [in the towel] indicating Jonathan had an erection.” Godoy’s report also asserted that Reyna had reported seeing the dildo “[o]n the floor right next to Jonathan’s right foot north side . . . on top of the bed next to Jane Doe, east side of Jane Doe” and “porn magazines on the floor and porn video . . . being played on the TV.”

While Reyna’s trial testimony and statements to the police suggested that defendant may have molested Jane in some manner, Godoy’s report contained far more incriminating evidence of molestation. Godoy’s trial testimony, but not Reyna’s trial testimony and statements, reported Reyna’s observations of (1) defendant’s manipulation of Jane’s body, (2) “rhythmic” movement of Jane’s body accompanied by her “screaming,” (3) defendant’s erection, (4) the dildo on the bed next to Jane, and (5) a porn video playing in the room. Using Godoy’s testimony, rather than merely Reyna’s observations, the jury could fill in the dots necessary to reach a conclusion that what appeared to Reyna to be a possible molestation was actually an incident involving sexual penetration.

The prosecution’s case consisted primarily of two categories of evidence. The first category was the physical evidence that Jane had anal fissures and that defendant’s sperm was on her labia. The prosecution argued that this evidence supported a finding that defendant had penetrated her anus and ejaculated near her genital area. The defense theory was that Jane’s anal fissures were attributable to her diarrhea and rash and that defendant’s sperm got on Jane’s labia when he tried to wipe up her soiled perianal area with a towel that had his sperm on it.[6] The second category of evidence was Reyna’s observations and Godoy’s testimony about Reyna’s statements. Reyna’s trial testimony, like his statement to the police, was not irreconcilable with the defense’s theories concerning the physical evidence. But Godoy’s testimony transformed Reyna’s account from ambiguous observations through the window to what amounted to an eyewitness observation of activities that were clearly sexual. This transformation was prejudicial to defendant and dispelled any reasonable doubt that might otherwise have precluded the jury from convicting him. Notably, the jury sought and obtained a readback of Godoy’s testimony about the contents of his report, which strongly suggests that this evidence was critical to its decision.

Cantu’s deficiency in this regard was so serious that it undermines our confidence in the outcome of the trial. (In re Fields, supra, 51 Cal.3d at p. 1070.) By deficiently disclosing to the prosecution highly incriminating evidence, Cantu failed to perform competently and prejudiced his client. Defendant is entitled to a new trial.

C. Protective Order

Since we conclude that defendant was prejudiced by Cantu’s deficient decision to turn over Godoy’s report to the prosecution, we must also consider what can be done to unwind that deficiency in the event of a new trial. The appropriate remedy is to direct the superior court to issue a protective order barring the prosecution from using Godoy’s report at any retrial of these charges.

V. Disposition

We grant relief on defendant’s ineffective assistance of counsel claim. The San Benito County Superior Court is ordered to vacate defendant’s convictions. Should the prosecution elect to retry defendant, the San Benito County Superior Court shall issue a protective order barring the prosecution from using Godoy’s report at a retrial.

The clerk of the court is directed upon finality of this opinion to forward a certified copy of this opinion to the State Bar of California (Bus. & Prof. Code, § 6086.7, subd. (a)) and to notify Albert Cantu that such action has been taken (Bus. & Prof. Code, § 6086.7, subd. (b)).

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.

In re Fidone

H043406