Error and/or relief
The defense attorney provided ineffective assistance of counsel by failing to object to this inadmissible opinion testimony. On this unusual record, the defendant has established both deficient performance and prejudice under the Strickland standard for ineffective assistance. Accordingly, we reverse the judgment and remand for a new trial.
[Gary note: It is highly unusual for a court on direct appeal to find that counsel prejudicially provided ineffective assistance. Normally such challenges are denied on appeal, with the court perhaps mentioning that the defendant could pursue the claim through habeas corpus. I have chosen to include extensive passages, because even though any case is fact-specific, the principles announced along with the facts may be of value, should you at some point need to consider raising an IAC claim on direct appeal.]
First Holding:
The defendant’s evidentiary objections are forfeited because defense counsel did not object to any of the testimony that Seevers now challenges on appeal. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.
Accordingly, it is generally the case that a defendant forfeits an argument on appeal where he fails to object at all to the evidence in the trial court.
Authority:
EVID 353
People v. Flinner (2020) 10 Cal.5th 686, 726
Second Holding:
We must therefore decide the defendant’s alternative claim of ineffective assistance of counsel. To prevail on his ineffective assistance claim under the Sixth Amendment, the defendant must establish that (1) his counsel’s performance was deficient, and (2) he was prejudiced as a result.
Deficient performance is established by showing that the attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms.
Under Strickland’s prejudice prong, the defendant 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.
Authority:
Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694
Third Holding:
In assessing whether an attorney’s performance was deficient, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.
Further, competent counsel may often choose to forgo even a valid objection. In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. Thus, a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.
Nonetheless, deference to counsel’s performance is not the same as abdication. It must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. We may conclude, on direct appeal, that counsel’s performance was deficient if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
Authority:
People v. Mai (2013) 57 Cal.4th 986, 1009
People v. Riel (2000) 22 Cal.4th 1153, 1197
People v. Centeno (2014) 60 Cal.4th 659, 675
People v. Jasso (2025) 17 Cal.5th 646, 676
Fourth Holding:
A lay witness may offer opinion testimony if it is rationally based on the witness’ perception and helpful to a clear understanding of the witness’s testimony.However, lay opinion about the veracity of particular statements by another is inadmissible on that issue.
Authority:
EVID 800
People v. Jones (2017) 3 Cal.5th 583, 602
People v. Melton (1988) 44 Cal.3d 713, 744
Fifth Holding:
A lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence, nor does it bear on any of the other matters listed by statute as most commonly affecting credibility. Thus, such an opinion has no tendency in reason to disprove or prove the veracity of the statements. A lay witness may not express an opinion about the veracity of another person’s statement because the statement’s veracity is for the jury to decide.
Authority:
People v. Houston (2012) 54 Cal.4th 1186, 1221
Sixth Holding:
A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. The reason for employing this rule is not because guilt is the “ultimate issue of fact” to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case.
Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.
Authority:
People v. Duong (2020) 10 Cal.5th 36, 60
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77
Seventh Holding:
The same rationale that prohibits the witness from expressing an opinion on the meaning of statutory terms or the guilt of the defendant also prohibits the witness from expressing an opinion as to whether a crime has been committed.
Authority:
People v. Torres (1995) 33 Cal.App.4th 37, 47 [witness improperly expressed the opinion the crimes committed were robberies]
Eighth Holding:
Our inquiry is whether a witness has offered testimony that is tantamount to expressing an opinion as to defendant’s guilt.
Authority:
People v. Ward (2005) 36 Cal.4th 186, 210
People v. Vang (2011) 52 Cal.4th 1038, 1048
People v. Duong (2020) 10 Cal.5th 36, 61
Ninth Holding:
The investigator improperly expressed an opinion on the defendant’s guilt throughout his testimony. By asking the investigator whether any evidence exonerated the defendant, the prosecutor improperly elicited testimony that commented on the strength of the case against the defendant and the issue of whether he was guilty of the victim’s murder. By responding that he found no exonerating evidence, the investigator improperly expressed his personal opinion on evidence a factfinder could have viewed as exonerating.
Authority:
People v. Spence (2012) 212 Cal.App.4th 478
Tenth Holding:
Having determined that portions of the investigator’s testimony were objectionable because they either opined on witness credibility or opined on the defendant’s guilt, we conclude that there simply could be no satisfactory explanation for the failure of defense counsel to object.
Authority:
People v. Jasso (2025) 17 Cal.5th 646, 676
Eleventh Holding:
The investigator’s testimony opining on the defendant’s guilt and on the witnesses credibility was so central to the issues at trial and so damaging to the defense that any competent counsel would have objected.
We can conceive of no satisfactory explanation for defense counsel’s failure to object. The defendant has therefore satisfied the deficient performance prong of the Strickland standard.
Authority:
People v. Yates (2018) 25 Cal.App.5th 474, 488 [finding on direct appeal no conceivable satisfactory explanation for defense counsel’s failure to object to every instance in which prosecution experts related as true case-specific facts contained in hearsay statements]
Twelfth Holding:
Given the investigator’s lead role and extensive participation in the investigation and presence in court during the trial, his opinions on witness credibility, the absence of any exonerating evidence, and the conclusions to be drawn from the defendant’s statement were likely to hold special weight for the jury and created a risk that the jury would abdicate its role as the arbiter of credibility and guilt.
Authority:
People v. Rouston (2024) 99 Cal.App.5th 997, 1012
Thirteenth Holding:
The case against the defendant was weak because it rested primarily on the inconsistent testimony of witnesses with motives to be untruthful, no physical evidence corroborated any of their stories or otherwise implicated the defendant, no body was ever found, and no crime scene was ever identified.
Although, in certain circumstances, an investigating officer’s opinion on the defendant’s guilt may not have influenced the verdict in light of the overwhelming evidence against defendant, that situation is not present here. Because the case against the defendant was based on such a precarious foundation, jurors could well have been influenced by the investigator’s personal opinions as an experienced law enforcement officer who had spent countless hours on the investigation.
It is therefore reasonably probable that the defendant would have obtained a more favorable result at trial if defense counsel had objected to the investigator’s improper testimony opining on the veracity of the two witnesses’ statements, identifying the defendant as the person who committed the homicide, assuring the jurors he knew he had the right person, and concluding that no evidence exonerated the defendant.
Authority:
In re Edward S. (2009) 173 Cal.App.4th 387, 418 [the case must be considered a close one because there was no eyewitness or physical evidence and the matter turned almost entirely on credibility]
People v. Riggs (2008) 44 Cal.4th 248, 301
