Trial counsel was not ineffective where he reasonably relied on “courtesy” arrangement with prosecutor’s office regarding issuance of subpoenas on police officers. During her first trial, Angel was acquitted of one count of committing a lewd act on a minor. The jury hung on other charges. In her second trial, she was found guilty of two counts of committing lewd acts on minors: one minor who was under 14 years old (Pen. Code, § 288, subd. (a)(1)), and another minor who was under the age of 16 years (Pen. Code, § 288, subd. (c)(1)). On appeal Angel alleged her trial attorney was ineffective for failing to subpoena two police officer witnesses, who testified at her first trial, to provide impeachment evidence. The officers were listed as prosecution witnesses, but were not called by the prosecution. The defense had not subpoenaed the officers, but had relied on a courtesy between the public defender’s office and the district attorney’s office permitting defense counsel to not serve a second subpoena on officers on the prosecution’s witness list. Held: Affirmed. A defendant alleging ineffective assistance of trial counsel must establish that her attorney’s performance was deficient and that this deficient performance prejudiced her case. “Reasonably relying on opposing counsel’s professional courtesy is effective assistance, in particular where that courtesy has developed into a common custom and practice.” (Citing Harrington v. Richter (2011) 562 U.S. 86.) The professional courtesy that existed here was longstanding and was known to defense counsel. Counsel reasonably relied on the custom of not serving a second subpoena on officers on the prosecution’s witness list. In addition, there are public policy reasons for this arrangement, like saving taxpayer’s money and minimizing disruption to officers. Trial counsel was not ineffective.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064000.PDF