Filed 10/27/26 P. v. Torresprado CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A171296
v.
FERNANDO TORRESPRADO, (San Mateo County
Super. Ct. No. 20SF010503A)
Defendant and Appellant.
A jury convicted appellant Ferando Torresprado of numerous sexual
offenses against his stepdaughter, as well as various unrelated misdemeanor
counts. The trial court denied his motion for new trial based on ineffective
assistance of counsel and sentenced him to 96 years to life in prison. On
appeal, Torresprado claims reversal is required because trial counsel
rendered ineffective assistance by failing to: (1) obtain or present juvenile
court dependency records; and (2) investigate or present evidence to impeach
the prosecution’s evidence regarding his “allegedly controlling behavior.” We
conclude that there is no reasonable likelihood that the challenged evidence
would have affected the outcome of his case, and thus there is no ineffective
assistance of counsel. Accordingly, we affirm the judgment.
1
I.
PROCEDURAL BACKGROUND
By amended information, the San Mateo County District Attorney
charged appellant with three counts of lewd touching of a child (Pen. Code,1
§ 288, subd. (a)—counts 1–3); four counts of oral copulation/sexual
penetration of a child 10 years of age or younger (§ 288.7—counts 4–7); two
counts of aggravated sexual assault of a child (§ 269, subd. (a)(4)—counts 8–
9); and one count each of continuous sexual abuse (§ 288.5, subd. (a)—count
10); misdemeanor unlawful firearm possession (§ 29805—count 11);
misdemeanor possession of ammunition (§ 30305, subd. (a)(1)—count 12);
misdemeanor injury to a spouse/cohabitant (§ 273.5—count 13); misdemeanor
battery of a spouse/cohabitant (§ 243, subd. (e)—count 14); and misdemeanor
false imprisonment (§ 236—count 15).
The jury convicted appellant on all counts except one count of
misdemeanor injury to a spouse/cohabitant (§ 273.5—count 13), on which it
was unable to reach a verdict. The prosecution thereafter dismissed that
count.
Following the verdict, appellant moved for new trial on the ground that
he had received ineffective assistance of counsel. After considering the
parties’ briefing and supporting exhibits, as well as conducting a hearing at
which both sides presented argument, the court denied the motion.
1 All further undesignated statutory references are to the Penal Code.
2
II.
FACTS2
A. Jane Doe
In March 2009, Jane Doe and appellant began dating during their
senior year of high school. Doe’s daughter, CV, was then almost two years
old. After high school, Doe and appellant moved in together. They would
eventually have four children together. Appellant was not CV’s biological
father, although CV believed he was until his arrest.
Doe described her relationship with appellant as having good and bad
moments. She testified that appellant was abusive and engaged in
controlling and jealous behavior throughout their relationship. She provided
numerous examples of this dynamic.
Doe began taking college classes, but eventually dropped out after
appellant became angry when she did not answer his phone calls. On one
occasion, appellant walked into one of Doe’s classes and began screaming.
She later quit her job at a restaurant after appellant came to the restaurant
and yelled at her for not answering her phone.
Doe also testified that appellant imposed various “rules” governing her
behavior, including how she should stand, walk, dress, and even sit in her
own home. She could not wear her cross-body purse across her chest because
appellant believed it accentuated her breasts. When walking in public, she
was required to keep her eyes down and was not permitted to look out the
window when riding in a car. She was not “allowed” to have social media or
her own email address. She was also not “allowed” to open the front door, or
open the window blinds, or be outside in the yard by herself. Appellant
2 In this nearly two-week trial, numerous witnesses testified.We
provide a summary of the facts relevant to the issues raised on appeal.
3
covered the blinds with blankets and pillows and directed where Doe could sit
on the sofa so she could not be seen if the front door opened. Doe had to ask
“permission” to shower, even when appellant was not home.
Whenever she went out, Doe had to be accompanied by one of the
children and she was required to FaceTime appellant to let him know when
she was coming home. She was not permitted to take her phone into the
bathroom. Doe testified that she had discussed appellant’s controlling
behavior with various members of his family.
Appellant was even jealous of Doe spending time with his own brother
and believed that Doe had had an affair with him. Doe testified that when
she told appellant that his brother had stopped by, appellant would scream
and swear at her and the children and interrogate them about what Doe had
been doing and where exactly she and the brother sat.
Doe described appellant as a kind father, but testified that when he
was upset he was “really mean” and “very violent.” According to Doe,
appellant would scream, throw plates, pull her hair and the children’s hair,
spank the children, and scream at them. She also testified that appellant
would throw, choke, and hit the family puppy in front of the children while he
was upset. Appellant also broke down doors at their home when he got
angry.
In 2013, following an argument where Doe believed that appellant was
texting another woman, appellant pushed Doe against a car and inflicted
bruises on her eye and arm. The children witnessed the incident. Doe did
not contact law enforcement, because she cared about appellant and “didn’t
want to get him in trouble.” Instead, Doe and the children went to stay with
her family.
4
A few days later, appellant called to tell Doe that he had brought pizza
for the kids and that she should go outside. When Doe went outside, he
threw the pizza at her. Appellant then went inside the house and was “just
screaming and saying things in front of [Doe’s] parents.” Doe decided to call
the police because she was scared. She explained that appellant had never
acted that way in front of her parents, and she “was afraid what was next.”
Doe and appellant remained separated for approximately six months
before reconciling. Doe explained that she returned to the relationship with
appellant because she “loved him,” “wanted to be with him,” “wanted her
family together” and wanted her “life with him.”
In 2019, during an argument in their home, appellant threw a phone
charger cable at Doe that hit her in the back. When Doe told him she was
going to leave, appellant blocked the door and took her phone. As she tried to
retrieve her phone from his pocket, appellant scratched Doe’s hand and arm.
When Doe was eventually able to leave the house, she saw appellant walking
toward the garage with what she believed might be a gun in his waistband.
Doe went to a neighbor’s house, called the police, and appellant was arrested.
Doe explained, however, that she did not want appellant to be prosecuted
because she loved and cared about him, wanted the family to be together, and
did not want him separated from her or the children. She explained that she
called the police because she was “very, very scared” and did not know “what
was going to happen next.”
A no-contact order was later issued. Doe testified that she initially
wanted the no-contact order because she was “scared.” However, after
appellant apologized to her, Doe no longer wanted the protective order in
place. She and appellant hired an attorney to get the no-contact order lifted.
5
Doe told the attorney that she did not want to get appellant in trouble for the
2019 incident.
In 2020, appellant entered the bedroom screaming at Doe. He was
“angry and mad and furious.” Appellant began choking Doe and putting a
pillow over her face, while screaming that he would kill her if she ever put
him in jail. He then brought Doe to the bathroom and continued yelling at
her, “I already told you if you ever fucking put me in jail for any reason, I will
fucking kill you. If I drown you’ll drown,” and that he would “make sure [she
was] 6 feet under.” Appellant put his hands around Doe’s neck, lifting her off
of the floor and choked her until she nearly lost consciousness. When he
eventually released her, she fell to the floor.
Doe could not recall what prompted appellant’s attack that day, and he
did not tell her why he thought she would call the police. Doe explained that
she did not report the incident because she did not want appellant to go to
jail.
A few weeks later, CV disclosed appellant’s sexual abuse to Doe. Doe
testified that CV was crying and “shaking . . . She was stuttering. She looked
scared.” Doe explained that CV did not normally stutter and was not
normally anxious.
When Doe confronted appellant about what CV had told her, he was
uncharacteristically silent. She testified, “He was just quiet, pale. He didn’t
even deny it.” At no point did he ever ask her, “ ‘What are you talking
about?’ ”
B. CV
CV was 15 years old at the time of trial. Growing up, CV thought
appellant was her biological father and did not learn otherwise until 2020.
CV described herself as “daddy’s little girl,” and said that she “loved him.”
6
Although there was frequent arguing and yelling in her household, CV
recalled various “good times” with appellant, including outings to buy her
little things or toys that she wanted and to have her nails done.
CV testified that appellant sexually abused her from the time she was
seven until she was 12 years old. She stated that the abuse began when
appellant and Doe first separated, when CV sometimes stayed at appellant’s
parents’ home and occasionally slept with appellant in his bed. He touched
her thighs, breasts, and buttocks over and under her clothes. CV estimated
that this occurred more than 50 times, and possibly more than 100 times.
The touching stopped briefly when Doe and appellant reconciled but soon
resumed. CV testified that on a weekly or monthly basis, appellant touched
her vagina while they laid together under the covers of the bed. When she
started to wear a bra, appellant would lift her shirt and bra and put his
mouth on her breast.
CV testified that appellant put his penis in her mouth. This form of
abuse occurred repeatedly from the time CV was seven years old until she
was 12. She testified that appellant “put [her] down onto [her] knees,” pulled
his shorts down, and told her to “Do it.” CV said she did not try pull away
from appellant because she was scared and confused, and “didn’t know what
was going on.” When she was 11 years old, he touched her vagina while his
penis was in her mouth. CV recalled this happening at least three times. CV
began telling appellant to stop when she was 11 years old. Occasionally,
appellant would stop abusing CV when she cried.
The final incident occurred a few days before CV disclosed the abuse to
Doe. CV testified that appellant told her to go into the bedroom while Doe
was in the shower. CV told appellant no and said she did not want to, but he
insisted. Once they were in the bedroom, he put his penis in her mouth.
7
When she and appellant heard Doe getting out of the shower, appellant
“panicked, pushed [CV] off, and told [her] to leave.”
CV testified that the abuse largely took place when Doe was occupied
elsewhere—shopping with her other children, showering, cooking, or doing
laundry. CV said that appellant would become upset if Doe did not tell him
when she was going to take a shower.
CV did not initially disclose the abuse because she was afraid. She
testified that appellant was often angry with her and told her that no one
would believe her and that people would think the abuse was her fault. She
also explained that she did not want to “put him away,” lose her father, or
break up the family. CV eventually told Doe because she “just wanted it to
stop.”
CV testified that when appellant became angry, he would hit her and
her siblings with a belt, cable, or sandal. No one talked back to appellant
because they “were all afraid of him.” She frequently heard appellant and
Doe yelling at one another and could hear appellant hitting Doe. On one
occasion, she saw Doe unconscious after an argument with appellant.
Appellant carried Doe to the bathtub and yelled at CV to bring him some
water.
CV was present during the 2019 incident where appellant threw a
phone charger cord at Doe. She testified that appellant blocked the door
during the argument and, after Doe was able to get outside, left the house
with a gun. Believing he would hurt Doe, CV begged appellant not to do
anything.
CV confirmed that the family had a puppy, and that appellant would
strike and abuse the dog in front of her and her siblings. She testified that
8
witnessing this frightened her and that, although she and her siblings would
cry, they did not feel they could say anything.
CV also corroborated Doe’s testimony about many of the “rules”
appellant imposed. She testified that Doe could not leave the house without
taking some of the children with her and could not have contact with other
men. No one in the household was permitted to go outside unless appellant
was present. Doe could not wear anything that exposed any part of her
breasts or wear revealing pants. CV witnessed appellant telling Doe to stand
up straight when they were out in public. CV further testified that appellant
went through Doe’s videos, that Doe was not permitted to have social media
accounts, and that for a period of time she was not allowed to have a phone.
CV also confirmed that when appellant’s brother came to the home, appellant
would question Doe and the children about the details of the visit, including
whether Doe had gone into the bedroom with him.
C. CW
CW was the second-oldest child in the household and was 13 years old
at the time of trial. She testified that appellant never touched her
inappropriately. CW said that she loved appellant but also hated him at the
same time.
CW once saw appellant and CV in bed together, under the sheets,
though she could not see what they were doing. Appellant did not notice that
CW had seen them. She did not say anything to her mother, Doe, because
she was afraid that appellant would hurt her, Doe, or her siblings.
CW testified that when appellant was angry, he would hit her, her
siblings, Doe, and the family puppy. She recalled an instance when Doe, fully
clothed, was unconscious in the bathtub, while appellant tried to wake her up
by pouring water on her head.
9
CW testified that Doe could not leave the house alone and “had to
always be looking down.” While they were in the car, appellant would
become angry and ask Doe if she was “ ‘trying to look at guys.’ ” Doe was only
allowed to wear long pants and long-sleeved shirts. CW said that if Doe wore
a T-shirt, appellant would ask whether she was trying to get men to look at
her. CW said the windows of their home had to be covered with blankets,
and appellant became upset if there were any gaps in the window. No
visitors were permitted in the home unless appellant was present. He would
question the children about whether his brothers or anyone else had come to
the house and whether Doe had gone to the bathroom with anyone.
CW also testified that Doe was not allowed to talk on the phone without
appellant present. Appellant would accuse Doe of downloading “secret apps”
on her phone and Doe was not allowed to have social media.
CW recounted that when Doe went shopping, appellant would call to
ask where she was, and Doe was required to call him when she left the store
to tell him she was coming home. Doe also had to take some of the children
with her whenever she went shopping.
D. Alexis R.
Pursuant to Evidence Code section 1108, the prosecution presented
testimony from Alexis R., who had grown up in the same neighborhood as
appellant. Alexis described an incident that occurred in 2006, when she was
seven years old and appellant was 14, while appellant’s mother was
babysitting her.
Alexis was on a couch watching television in an upstairs room while
appellant sat on the opposite end of the couch. Appellant moved to sit next to
Alexis, checked if anyone was nearby, and began pulling on the waistband of
her pants. He reached his hand into her pants, fondled her genital area, and
10
inserted his fingers into her vagina. If he thought someone was approaching
the room, he would stop touching Alexis and shift away on the couch. When
he believed no one was nearby, appellant would move back and resume
touching her. Alexis did not fight or call for help. She testified that her “body
shut down.”
When her mother noticed that Alexis had become shyer around men
after the incident, Alexis told her what had happened. Law enforcement
later interviewed Alexis at her home, but she felt that they did not take her
seriously and did not contact law enforcement again about the incident.
III.
DISCUSSION
Appellant argues the trial court erred by denying his motion for a new
trial because his original trial counsel rendered ineffective assistance by: (1)
failing to properly file Welfare and Institution Code section 827 petitions
seeking juvenile court material relating to child family services (CFS)
investigations of the family; and (2) failing to investigate and present
available impeachment evidence regarding appellant’s “allegedly controlling
behavior.” We disagree.
A. Additional Background
1. New Trial Motion
a. CFS Records
Appellant’s original trial counsel petitioned the juvenile court under
Welfare and Institutions Code section 827 (827 petitions) to obtain the CFS
reports on the first day of trial. The juvenile court clerk notified counsel that
the 827 petitions were incomplete and could not be processed. Counsel did
not correct the deficiencies, and the matter proceeded to trial without the
reports.
11
New counsel later filed proper 827 petitions, which resulted in
disclosure of two investigations: one conducted in September 2019, in
response to the incident underlying the misdemeanor charges in counts 11
through 14, and another conducted in 2020 in response to the report that led
to the felony charges in counts 1 through 10. Notes from the interviews
conducted by the CFS social worker on September 17, 2019, stated that “[t]he
children all denied that there has been any other incident similar to what
occurred. Per the children, the parents tend to talk when they are upset with
each other and they can’t resolve it, they go to their room and the children
will watch a movie. The children denied ever seeing a gun in the home.”
Regarding discipline, the children generally reported that their parents took
away their phone or computer privileges. One younger sibling (of CV and
CW) reported that appellant had “hit her with the belt and hand on the butt
area,” but the other children denied physical discipline. The children also
denied sexual abuse. The social worker separately interviewed Doe, who
“stated she is only seeking joint custody as the father is very good with the
children and she has no concerns with him as a parent.”
The 2020 records contained additional statements by CW, CV, and Doe.
CW reported that “the parents would sometimes hit her in the ‘butt’ with a
sandal, but denied it left any marks or bruises.” She stated that “mother
hardly ever does it, and that father would sometimes do it but not anymore.”
She stated that her parents sometimes argued, which made her sad, but
denied ever seeing them physically fight. CV also described her parents’
disagreements as “talk argu[ing]” and denied seeing pushing, hitting, or
objects being thrown. She reported that “when she gets in trouble she gets
her phone taken away, has to do chores, or cannot use her electronics” and
12
that both of her parents imposed these consequences. CV denied any
physical discipline.
Doe reported that she told appellant not to hit the children, but said
that she had never seen him “leave a mark or a bruise.” She also reported
that there had been no further physical altercations since the September
2019 referral, but described appellant as “emotionally abusive.”
In support of the new trial motion, appellant’s new counsel argued that
trial counsel was deficient in failing to obtain the CFS records because the
prosecution’s case “rested directly on the credibility of the testifying family
members.” Counsel further argued that trial counsel’s attempt to file the 827
petitions showed that counsel had made a tactical decision to obtain the
records, but had failed to follow through after learning that the petitions
were defective.
New counsel also argued that trial counsel’s failure was prejudicial
because the CFS records could have been used to impeach the testimony of
the family members. Counsel argued this impeachment evidence would have
“undermined” the prosecution’s case, by calling into question the credibility of
the prosecution witnesses. Counsel further asserted that “[w]ithout this
information, each of the witnesses was able to testify largely free from any
contradiction or impeachment.”
b. Appellant’s Alleged “Controlling” Behavior
New counsel also argued that trial counsel rendered ineffective
assistance by failing to investigate and present available impeachment
evidence concerning appellant’s “allegedly controlling behavior.” According to
new counsel, declarations from family members and photographs of Doe
would have contradicted testimony about appellant’s “rules” controlling how
Doe dressed, how she stood in public, and what she was allowed to wear.
13
Counsel argued that because this evidence would have contradicted witnesses
“on whom the entire case depended, including [CV],” it would have
undermined their credibility and made a “different outcome reasonably
probable.”
2. Hearing on New Trial Motion and Trial Court Ruling
At the hearing on the new trial motion, new counsel stated that he had
reached out to appellant’s former counsel, but had received no response. New
counsel argued that it was unreasonable to wait until the first day of trial to
petition the juvenile court for the CFS records, noting that it took him “about
six months” to obtain them. As in his motion, defense counsel maintained
that former counsel’s attempt to file the section 827 petitions demonstrated
that he believed the records could be important to the defense. He further
argued that “Section 827 records were known to be available, the procedure is
well-known, it’s systematic, it’s supported and facilitated by judicial counsel
forms. The juvenile court routinely produces these documents, and there’s
absolutely no downside to requesting them because they’re disclosed directly
to the defense.”
At the outset of the hearing, the court explained that in assessing
whether an attorney’s performance fell below the requisite standard, it was
looking at the “entire performance” rather than any single issue or omission.
Although the court acknowledged that new counsel had identified some
“troublesome” issues, in its view “[former counsel] actually did an excellent
job in the trial. His jury selection was quite good in my view. I thought he
did a nice job examining the witnesses in dealing with the delicate nature of
dealing with children as victims. [¶] And then I will say . . . that I thought he
gave an unbelievably good closing argument with what he had to work with.”
14
The parties then addressed whether the CFS records were material to
the defense. The prosecutor responded that the CFS records contained “no
smoking gun” or other evidence critical to the case. In the prosecutor’s view,
the case ultimately depended on the testimony of CV and Doe, and nothing in
the records was significant enough to change the result. Defense counsel
maintained that the 2019 report, which reflected no disclosure of sexual
abuse and contained Doe’s statement that she had no concerns about
appellant as a parent, and the 2020 report, which contained statements
minimizing the violence in the home would have impeached the testimony of
CV, Doe, and CW.
Defense counsel also argued there could be no reasonable tactical
explanation for failing to introduce photographs showing Doe wearing
clothing that was inconsistent with the testimony about appellant’s control
and restrictions over what she wore. The prosecutor responded that trial
counsel reasonably could have chosen not to introduce the photographs
because they were minimally probative and risked appearing to shame Doe.
The prosecutor further asserted: “[F]ive or six photographs . . . in the course
of a ten-year relationship hardly shows or hardly discounts what she and the
children were saying about his controlling nature, which extended to far
beyond her clothing” and that the case ultimately turned on CV’s account of
the abuse and the corroborating testimony of other witnesses.
The court concluded that the omitted CFS records did not create a
reasonable probability of a different outcome.3 It posited that even if former
counsel had obtained the 2019 report and questioned Doe about her
statement that she did not have any concerns about appellant as a parent, “at
3 The court characterized former counsel’s failure to timely obtain the
CFS reports as “arguably deficient.”
15
that time she was notably unaware of the sexual abuse that had been
happening in her home with her daughter repeatedly behind her back for
years. [¶] It’s completely illogical to assume or even think in any way
possible that if she had that information that she would still think he was a
good parent.” The court further observed that Doe had consistently,
including during the trial, expressed reluctance to cause trouble for
appellant, even after learning of the abuse, and therefore gave little weight to
her earlier favorable statements.
The court relied on its observation of the witnesses at trial. It
described Doe as “about as broken of a person as I’ve ever seen in my life. I
saw somebody who had trouble getting through her statements, sentences. It
was a pretty raw and emotional time period when she testified.” “[W]hat I
saw there goes a lot beyond what was on paper.” Similarly, the court stated
that although CV had denied sexual abuse during the 2019 CFS
investigation, the court emphasized her “shaking and crying and reliving the
moments” while testifying at trial. The court noted that CV “talked about . . .
how she still loved her dad, she said that during the trial. [¶] . . . [¶] . . . The
quote that stuck out to me she said the following, and I can’t do it justice to
what emotions to what she had, but she said, ‘I was daddy’s little girl and I
loved him, I didn’t want him to get in trouble, I just wanted him to stop.’ ”
The court found that CV’s testimony did not suggest “some grand scheme” to
falsely accuse appellant.
The court also credited CW’s description of seeing CV in bed with
appellant under circumstances she found strange, even though she did not
understand the significance of what she had observed at the time. The court
explained, “although [CW] was younger than her sister who testified, she
actually came across . . . very well in the testimony. She was the most put
16
together of the three people from the family that testified by far. Probably
because she wasn’t being abused.” In light of these firsthand observations,
the court concluded that the discrepancies between the CFS records and the
trial testimony did not “establish a reasonable probability of a different
outcome.4
As to the second basis for the new trial motion, the court found that
appellant had established neither deficient performance nor prejudice with
respect to the photographs or the related declarations from appellant’s family
members. It described the evidence as “overwhelming” and placed particular
weight on the testimony and demeanor of CV, as well as the testimony of CW,
Doe, and Alexis R. The court stated: “[t]his was probably the most powerful
set of witnesses I’ve seen in a trial, not for their language and not for their,
even for the actions they described, . . . but for how they were in court and the
effect that this case had on them.” It thus concluded that the potential
impeachment evidence identified in the new trial motion would not have
altered the outcome.
B. Applicable Law and Standard of Review
Generally, “a trial court has broad discretion in ruling on a motion for a
new trial, and there is a strong presumption that it exercised that discretion
properly.” (People v. Davis (1995) 10 Cal.4th 463, 524.) But when a motion
for a new trial is based on the denial of a fundamental right, we
independently review the issue. (See People v. Ault (2004) 33 Cal.4th 1250,
4 With respect to the inconsistencies between the CFS records and the
trial testimony regarding physical violence, the court found that “the possible
discrepancy in physical violence testified to from what [Doe and her children]
told the social worker, in this Court’s view does not rise to the level, even
close to the level of a reasonable probability of a different outcome based on
this.”
17
1260–1261 (Ault).) Because a claim of ineffective assistance of counsel
implicates a criminal defendant’s fundamental right to “ ‘the reasonably
competent assistance of an attorney acting as his diligent conscientious
advocate’ ” a trial court’s denial of a motion for a new trial on that ground is
subject to independent review. (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
We defer to the trial court’s factual findings and credibility determinations to
the extent they are supported by substantial evidence (see People v. Mayfield
(1997) 14 Cal.4th 668, 720 (Mayfield)), while independently determining
whether counsel’s performance was constitutionally deficient and, if so,
prejudicial (People v. Vivar (2021) 11 Cal.5th 510, 524). In evaluating
prejudice following a new trial motion, we also consider the trial court’s
firsthand observations of the witnesses, which may bear significantly on its
assessment of the likely effect of additional impeachment evidence. (See
Ault, supra, 33 Cal.4th at p. 1267.)5
The standard for establishing ineffective assistance of counsel is well
settled. A defendant must demonstrate that: (1) his attorney’s performance
fell below an objective standard of reasonableness; and (2) prejudice.
(Strickland v. Washington (1984) 466 U.S 668, 688, 694 (Strickland).)
Prejudice occurs where there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
more favorable to the defendant. (Ibid.; People v. Stanley (2006) 39 Cal.4th
913, 954 (Stanley).) In turn, a “reasonable probability” is a probability
5 This standard differs from the abuse of discretion standard applicable
to orders granting a motion for new trial based on ineffective assistance of
counsel (see, e.g., People v. Callahan (2004) 124 Cal.App.4th 198, 209) and
orders denying a motion for new trial on statutory grounds not implicating a
constitutional right (see People v. Taylor (1984) 162 Cal.App.3d 720, 723–
724).
18
sufficient to undermine confidence in the outcome. (Strickland, supra, at p.
694; Stanley, supra, at p. 954.)
C. Analysis
We need not decide whether appellant could establish deficient
performance because even if he could, he has failed to establish prejudice.
(Strickland, supra, 466 U.S. at p. 697 [“a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies”].)
The trial court characterized counsel’s failure to obtain the CFS records
as “arguably deficient,” but concluded that appellant had not established
prejudice. We agree. Even assuming the records could have been used to
impeach portions of the testimony of CV, CW, and Doe,6 the discrepancies
were not sufficiently significant, considered in light of the evidence as a
whole, to create a reasonable probability of a different result.
The 2019 CFS records showed, among other things, that CV denied
sexual abuse. That prior denial had some impeachment value, but its force
was limited by the circumstances surrounding her later disclosure. CV
testified that she regarded appellant as her father, loved him, did not want
him to get in trouble, and did not want to lose him or break up her family. At
6 As noted above, the trial court characterized the testimony of these
women as being “probably the most powerful set of witnesses I’ve seen in a
trial,” and emphasized that “sometimes on paper things are different than
they are in person,” and explaining that it was “factoring in everything that
[it] witnessed and saw.” Those firsthand observations are particularly
significant here, where appellant’s prejudice argument turns largely on the
asserted impeachment value of the omitted evidence. Because the court’s
credibility findings are supported by substantial evidence, we afford them
significant deference in evaluating prejudice. (Mayfield, supra, 14 Cal.4th at
p. 796.)
19
the same time, she testified that she was afraid of appellant and ultimately
disclosed the abuse because she “just wanted it to stop.” Moreover, CV’s
account of her sexual abuse was not presented in isolation. CW also
described an incident in which she observed CV in bed with appellant under
circumstances she found unusual. Doe testified about appellant’s reaction,
and specifically, his lack of denial, when confronted with CV’s allegations.
And Alexis R. testified, pursuant to Evidence Code section 1108, about
appellant’s prior sexual misconduct toward her when she was a child. In that
context, CV’s earlier failure to disclose the sexual abuse did not substantially
detract from the credibility of her trial testimony.
Nor did Doe’s 2019 statement that she had no concerns about appellant
as a parent materially undermine the credibility of her testimony. At the
time of that statement, Doe did not know about CV’s allegations of sexual
abuse. Moreover, Doe repeatedly testified that she remained emotionally
attached to appellant and did not want him to get in trouble, even after
incidents in which she contacted law enforcement. The trial court therefore
appropriately viewed her favorable statement about appellant’s parenting in
light of both her lack of knowledge of the sexual abuse of her daughter at the
time and her longstanding reluctance to expose appellant to adverse
consequences.
We recognize that the CFS records also contained statements by CV,
CW, and Doe that contradicted their trial testimony concerning violence and
discipline in the home. Those inconsistencies supplied potential
impeachment material, but they did not concern the central allegations of
sexual abuse or meaningfully undermine the witnesses’ testimony when
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considered in context.7 The jury heard extensive evidence that the family
members had complicated and conflicting feelings toward appellant: they
described loving him and wanting to preserve the family while also
describing fear of his anger and controlling behavior. The trial court, having
observed their testimony firsthand, aptly concluded that the discrepancies
between the CFS records and their trial testimony would not have materially
affected the assessment of their credibility.
We reach the same conclusion regarding the photographs and
declarations offered to contradict testimony about appellant’s restrictions on
Doe’s clothing and behavior. The photographs may have provided some basis
to question whether those restrictions were uniformly enforced. But a small
number of photographs taken over the course of a lengthy relationship would
not substantially undermine the broader testimony from multiple witnesses
concerning appellant’s controlling conduct. We need not consider whether
counsel had a tactical reason for omitting the photographs because appellant
has not shown a reasonable probability that their admission would have
affected the verdict.
The authorities upon which appellant relies do not compel a different
conclusion. People v. Rafael B.D.R. (2024) 101 Cal.App.5th 385 at page 399,
held that the trial court abused its discretion when it denied defendant’s
motion for new trial based on newly discovered evidence without first holding
an evidentiary hearing. There, the trial court’s determination that the new
testimony would not have changed the outcome necessarily rested on a
7 There are two allegations concerning domestic abuse: count 13
(§ 273.5) and count 14 (§ 243, subd. (e)). The jury was unable to reach a
verdict on count 13, and the prosecutor subsequently dismissed that count.
Thus, the main import of any omitted impeachment material in this case is to
count 14, misdemeanor battery of a spouse/cohabitant. (§ 243, subd. (e).)
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credibility assessment: it effectively found the new defense witness less
credible than the prosecution witnesses who testified at trial. (Id. at pp. 396–
397.) But the trial court had no adequate basis for making that assessment
because it had only the new witness’s sworn declaration, not her live
testimony. (Id. at pp. 397–398.) That is not the situation here. The trial
court was not required to assess the credibility of a new witness based solely
on a written declaration. Rather, it considered the omitted evidence in the
context of the evidence actually presented at trial and determined that the
evidence would not have created a reasonable probability of a different result.
Appellant’s other authorities are similarly inapposite. In Cannedy v.
Adams (9th Cir. 2013) 706 F.3d 1148, 1166, the omitted evidence directly
implicated the complaining witness’s motive to fabricate and created a
reasonable probability of a more favorable outcome. In Smith v. Lafler (6th
Cir. 2006) 175 Fed. Appx. 1, in which the defendant was convicted of sexual
assault, counsel failed to discover a psychiatric report in which the victim
admitted to sexual activity with her boyfriend, contracting HPV from him,
and recently taking a pregnancy test. (Id. at pp. 3–4.) Because the case
turned largely on the victim’s credibility, and the report provided an
alternative explanation for the only physical evidence—the victim’s
contracting of HPV—the Sixth Circuit found counsel’s failure to investigate
and present the report both deficient and prejudicial. (Id. at pp. 4–5.) The
evidence omitted here was materially different. It provided potential
impeachment, but did not reveal a motive to fabricate or directly contradict
any witness’s account of the charged abuse. Nor did it undermine the
substantial independent evidence corroborating the witnesses’ accounts and
establishing appellant’s guilt.
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Considering the omitted evidence in light of the trial record as a whole,
appellant has not demonstrated a reasonable probability that its admission
would have produced a more favorable result. Accordingly, the trial court did
not err in denying the motion for a new trial on ineffective assistance of
counsel grounds.
IV.
DISPOSITION
The judgment is affirmed.
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_________________________
Gordon, J.*
WE CONCUR:
_________________________
Streeter, Acting P. J.
_________________________
Goldman, J.
People v. Torresprado/A171296
* Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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