Filed 5/31/18 P. v. Lovelace CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MIKE JAY LOVELACE,

Defendant and Appellant.
D072550



(Super. Ct. No. SCD266514)

APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Reversed.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Mike Jay Lovelace guilty of one count of using the personal identifying information of another (Pen. Code, § 530.5, subd. (a)), and one count of burglary (§ 459). Lovelace was placed on formal probation for three years, with an order that he serve 365 days in local custody.
Lovelace contends (1) the trial court prejudicially abused its discretion in admitting evidence of his prior felony convictions for the purpose of impeaching his credibility; (2) defense counsel provided ineffective assistance by questioning Lovelace on direct examination about the facts underlying his 1994 burglary conviction and eliciting false testimony in doing so; (3) the prosecutor committed misconduct during closing argument; (4) the condition of probation requiring Lovelace to agree to a search of his computers and recordable media should be stricken as unreasonable and overbroad; and (5) the sentencing minute order should be corrected to properly reflect the trial court's oral pronouncement regarding waiver of past section 4019 custody credits.
We conclude the trial court did not abuse its discretion in admitting evidence of Lovelace's prior felony convictions. However, we also conclude defense counsel provided ineffective assistance by inquiring about the factual basis for Lovelace's 1994 burglary conviction—a check forgery quite similar to the charge for which he was currently on trial. Counsel then significantly magnified the initial error by eliciting false testimony from Lovelace, which opened the door for the prosecutor to conduct a devastating cross-examination on that issue to impugn his credibility, which was the central disputed issue at trial. As we reverse the judgment based on ineffective assistance of counsel, we need not, and do not, reach the remaining issues raised by Lovelace.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2016, at approximately 9:45 a.m., Lovelace entered a check cashing business in San Diego and presented a check made out to him and issued by E-Collect in the amount of $5,743.90. Lovelace made small talk with the employee who was assisting him and stated that the check was for a tax refund. The employee verified Lovelace's identity with Lovelace's driver's license. With the help of a manager, the employee successfully made a telephone call to the phone number indicated on the check to verify it and obtain a confirmation number. When the employee asked Lovelace for a telephone number as a reference, he first gave her a number that was disconnected, but then gave her his mother's telephone number, although no one answered when the employee called that number. The employee cashed the check and gave Lovelace the money.
It was undisputed at trial that the check Lovelace negotiated was a fraudulent check that was not issued by E-Collect, and the invalid check was later returned to the check cashing business. Suspicions were also raised as to the validity of the check when a different person tried to cash a similar check later on March 7, 2016, and employees noticed that there were problems with that check.
An information charged Lovelace with one count of using the personal identifying information of another (§ 530.5, subd. (a)), and one count of burglary (§ 459). The information further alleged that Lovelace had incurred nine prison prior convictions (§ 667.5, subd. (b)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12).
At trial, Lovelace testified in his own defense. Lovelace admitted to cashing the fraudulent check, but he claimed that he was forced to do so at gunpoint. Specifically, Lovelace, who described himself as a homeless methamphetamine addict, stated that he was hitchhiking with his girlfriend because they did not have enough money for bus fare to get back to the trolley station. They were picked up by two men who were nice to them and took them to Burger King to buy them food. According to Lovelace, the men also stated that they could get Lovelace a job parking cars and asked to take a photograph of his driver's license for that purpose. The men then drove to the check cashing business, and after speaking with people in another car, they pulled guns on Lovelace and his girlfriend and demanded that Lovelace go into the check cashing business and cash the fraudulent check and then give them the money. Lovelace testified that after the incident was over, he did not call the police because his girlfriend had a warrant for her arrest and the men had threatened to hurt Lovelace's mother.
The jury convicted Lovelace on both counts. In a separate proceeding, the trial court dismissed three of the prison prior convictions and then made a true finding on the remaining prison prior convictions and the prior strike. At sentencing, the trial court struck the prior strike and two of the prison prior convictions and reduced the remaining prison prior convictions to misdemeanors. The trial court placed Lovelace on formal probation for three years, with an order that he serve 365 days in local custody.
II.
DISCUSSION
A. Lovelace's Challenge to the Admission of His Prior Felony Convictions to Impeach His Credibility

We first consider Lovelace's contention that the trial court abused its discretion in admitting evidence of Lovelace's prior felony convictions for the purpose of impeachment. According to Lovelace, evidence of some of the prior convictions should have been excluded pursuant to Evidence Code section 352 because they were remote in time and for the same offense (burglary) that was charged in this case.
1. Relevant Proceedings
To assess Lovelace's argument, we first review the relevant proceedings at trial relating to the admission of Lovelace's prior felony convictions.
During motions in limine, the People filed a motion to admit evidence of certain of Lovelace's prior felony convictions for the purpose of impeaching his credibility in the event he chose to testify at trial. Specifically, the People sought permission to introduce evidence of seven different burglary convictions (§ 459) between 1982 to 1998; four petty-theft-with-a-prior convictions (§§ 484, 666) between 1985 and 2003; and a felon in possession of a firearm conviction (former § 12021) from 1985.
Defense counsel filed a corresponding motion in limine to exclude such evidence pursuant to Evidence Code section 352. Defense counsel argued in her motion in limine that the convictions should be excluded under Evidence Code section 352 because they were remote in time, were similar to the instant case, and their admission for the purposes of impeachment would substantially impact Lovelace's decision whether to testify.
During the in limine hearing, the trial court stated that although it was not in a position to give a final ruling on the admissibility of the prior convictions until after Lovelace's direct examination testimony, "unless something else comes up to persuade me otherwise, he will be impeached with all of the things that [the prosecutor] has requested." The trial court explained that it would be admitting the prior convictions only for the purpose of impeachment, and not "for the factual basis underneath them under [Evidence Code section] 1101[, subdivision] (b)."
The trial court rejected defense counsel's argument that the prior convictions should be excluded pursuant to Evidence Code section 352, explaining that it did not believe that the temporal remoteness of the convictions required their exclusion because Lovelace's criminal history showed "constant law breaking over a 30-year period of time without any substantial breaks," and "unless the jury is told about that with regard to the witness, they may have a false sense of the reliability or the credibility of the witness's testimony."
The trial court also rejected defense counsel's argument that the prior convictions should be excluded because they involved "similar conduct" in that one of the current charges was burglary, as were some of the prior convictions. In describing the prejudice attributable to the admission of the burglary convictions, defense counsel argued that if the jury learned of the prior burglary convictions, there was a risk that the jury would infer that Lovelace "just goes into check-cashing places all the time, and I don't think that that's the case." In rejecting the argument, the trial court explained, "I have no idea whether the facts are similar in any way, shape or form. Nor will the jury." The trial court further pointed out that Lovelace "can certainly testify . . . that he doesn't go to check cashing places all the time," and "to the extent that he wants to clear up any kind of ambiguity, he's certainly welcome to do that while he's on the stand."
During the in limine hearing, defense counsel stated that "[t]ypically, I think its good defense practice in many scenarios to deal with priors that are coming in on direct examination." Counsel then asked for "as much notice as humanly possible" regarding the trial court's final ruling "because I have to prepare his defense in the best way possible."
As the trial proceeded, defense counsel did not ask for a final ruling on whether the trial court would admit evidence of Lovelace's prior felony convictions. Instead, after conducting a direct examination of Lovelace on other topics, and not pausing to obtain a final ruling from the court on the admissibility of the prior convictions, defense counsel proceeded, at the conclusion of Lovelace's direct examination, to inquire about the facts underlying Lovelace's prior convictions.
"Q. Okay. And throughout your adult life, you have definitely acquired some theft convictions; is that right?

"A. Yes, many theft . . . convictions. Yes, I have.

"Q. And I want to just kind of go through them, lay it out there and go through them with you, okay?

"A. Many.

"Q. You've been in trouble quite a few times, right?

"A. Many.

"Q. Okay. So in 1985, you got a petty theft, correct?

"A. Yes, I have. I do a lot of shoplifting. I did.

"Q. And in 1989, you got a burglary where it's like going into a store and shoplifting type of stuff?

"A. Yes.

"Q. Okay. And in 1990, you also had a burglary, going into a store and shoplifting?

"A. Yes.

"Q. Okay. Another one in 1990, same thing, going into a store and shoplifting?

"A. Yes.

"Q. Okay. Another one in 1994, basically the same thing?

"A. Basically the same thing.

"Q. Okay. And another one after that in 1994, correct?

[¶] . . . [¶]

"[A]. That's correct.

[¶] . . . [¶]

"Q. And I think there's another one in 1980; is that right?

"A. That is correct.

"Q. And that's also like a petty type thing?

"A. Everything is theft.

"Q. . . . And then in 1982, that's the only one where you actually—you went into a residence in 1982 to steal, correct?

"A. Yeah. Major mistake.

"Q. And in 2003, you got another petty theft, right?

"A. Yes, ma'am, I did.

"Q. . . . And then you also, . . . in 1985, you did plead guilty to being someone who's been convicted of a felony who had a firearm in his car?

"A. It was in the car that I was driving, yes."

During cross-examination, the prosecutor asked Lovelace about some of his prior convictions and elicited testimony from Lovelace that he had "been convicted of numerous commercial burglaries." A conviction upon which the prosecutor especially focused was the 1994 burglary conviction. The prosecutor confronted Lovelace with the complaint related to that conviction and established that the same complaint charged Lovelace with "check forgery or check fraud." After reviewing the complaint related to the 1994 burglary, Lovelace agreed that the burglary "wasn't for shoplifting, it was for check fraud and check forgery."
In the middle of the prosecutor's cross-examination of Lovelace regarding the prior convictions, the trial court instructed the jury that the fact of a witness's prior felony convictions could only be used "in evaluating the credibility of the witness's testimony" and not "for any other purpose." The trial court again instructed the jury prior to deliberations with the standard instruction on the limited use of a defendant's prior felony convictions "only in evaluating the credibility of the witness's testimony."
2. The Trial Court Did Not Abuse Its Discretion
We now proceed to consider whether the trial court erred in admitting the evidence of Lovelace's prior felony convictions to impeach Lovelace's credibility over defense counsel's objection that Evidence Code section 352 required their exclusion.
"Article I, section 28, subdivision (f), of the California Constitution—which was adopted on June 8, 1982, when the voters approved an initiative measure designated on the ballot as Proposition 8—declares in pertinent part that 'Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding.' " (People v. Clair (1992) 2 Cal.4th 629, 653-654.) Further, Evidence Code section 788 provides, with certain exceptions that are not relevant here, that "[f]or the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony." Accordingly, a witness may be impeached with any prior felony conviction "subject to the trial court's exercise of discretion under Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).)
Section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (Clark, supra, 52 Cal.4th at p. 931.)
"A trial court's discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion." (People v. Lewis (2001) 26 Cal.4th 334, 374.) In particular, "[b]ecause the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (Clark, supra, 52 Cal.4th at p. 932.)
Lovelace argues that the trial court abused its discretion in admitting evidence that he had incurred five prior convictions for commercial burglary because (1) the convictions were remote in time; (2) burglary was the same crime that Lovelace was charged with in this case; and (3) admission of the prior convictions would consume an undue amount of time and confuse the jury. As we will explain, we are not persuaded that the trial court abused its discretion.
In conducting the balancing required under Evidence Code section 352, the initial consideration is the probative nature of the evidence. It is well established that "prior convictions for burglary . . . are probative on the issue of the defendant's credibility." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza).) Further, Lovelace's credibility was a central issue at trial, given that Lovelace's defense depended on the jury believing his testimony that he was forced at gunpoint to negotiate the fraudulent check. Accordingly, the trial court reasonably could view the evidence of Lovelace's prior convictions as highly probative of a central disputed issue at trial.
Turning to the issue of undue prejudice, Lovelace first contends that because burglary was charged in this case, it was prejudicial for the jury to learn that Lovelace had been convicted of prior burglaries. As Lovelace properly points out, admitting evidence that the defendant was previously convicted of an identical crime may create a risk of prejudice because of " 'the inevitable pressure on lay jurors to believe "if he did it before he probably did so this time" ' " and to treat the prior conviction as propensity evidence rather than to use it solely to assess the defendant's credibility. (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle).) However, as our Supreme Court has recently explained, "[a]though the similarity between the prior convictions and the charged offenses is a factor for the court to consider when balancing probative value against prejudice, it is not dispositive." (Clark, supra, 52 Cal.4th at p. 932.) Thus, " '[t]he identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.' " (People v. Green (1995) 34 Cal.App.4th 165, 183 (Green).) " 'While before passage of Proposition 8 [in 1982], past offenses similar or identical to the offense on trial were excluded, now the rule of exclusion on this ground is no longer inflexible.' " (People v. Hinton (2006) 37 Cal.4th 839, 888.) The trial court was accordingly within its discretion to admit the evidence of the prior burglary convictions despite their similarity to the charged offense, based on the highly probative nature of the evidence.
According to Lovelace, the trial court also was required to exercise its discretion to exclude the prior burglary convictions because they were remote in time. Specifically, the last of the burglary convictions was incurred in 1998, although Lovelace's last felony conviction was in 2011 for alien smuggling and he had other felony convictions and prison terms in intervening years. The remoteness of a prior conviction, standing alone, does not require exclusion under Evidence Code section 352. (Mendoza, supra, 78 Cal.App.4th at p. 925 ["convictions remote in time are not automatically inadmissible for impeachment purposes"]; People v. Burns (1987) 189 Cal.App.3d 734, 738 ["there may be no conviction that is per se too remote to be used for impeachment"].) Remoteness of a prior conviction tends to favor exclusion only "if it occurred long before and has been followed by a legally blameless life." (Beagle, supra, 6 Cal.3d at p. 453, italics added.) Thus, "[d]espite its age" a conviction may nonetheless be admitted when the defendant "did not subsequently lead a blameless life." (Green, supra, 34 Cal.App.4th at p. 183.) This is because "the systematic occurrence of defendant's priors over a [long] period creates a pattern that is relevant to defendant's credibility." (People v. Muldrow (1988) 202 Cal.App.3d 636, 648.) Accordingly, because Lovelace continued to commit crimes after his more remote burglary convictions were incurred, the trial court properly rejected remoteness as a factor requiring exclusion of the prior burglary convictions.
Lovelace next argues that the trial court abused its discretion in not excluding the convictions because their admission "risked unduly consuming time" and "confusing the issues and misleading the jury." Lovelace points out that the prosecutor's questioning about the prior convictions consumed "seven pages" of the reporter's transcript, comprising 40 percent of the prosecutor's cross-examination of Lovelace. We are not persuaded by this argument, as it is an exaggeration to call seven pages of a reporter's transcript from a two-day long trial an undue consumption of time. The admission of the prior convictions did not unduly prolong the trial. Lovelace also contends that there was a risk that the jurors would be confused by the admission of the prior convictions because they may not understand that they were permitted to use them only to assess Lovelace's credibility. However, the jury was twice instructed that the evidence could be used only for that purpose, and the trial court was entitled to presume that jurors are capable of following instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
In sum, we conclude that the trial court was within its discretion to admit Lovelace's prior felony convictions for the purpose of impeaching his credibility.
B. Lovelace Has Established Ineffective Assistance of Counsel Arising From Defense Counsel's Inquiry into the Facts Underlying His 1994 Burglary Conviction and Eliciting of False Testimony from Lovelace

Lovelace next contends that his trial counsel was ineffective because she questioned Lovelace about his prior convictions on direct examination, and in so doing, elicited false testimony from Lovelace about the nature of the 1994 burglary conviction. As Lovelace points out, because defense counsel elicited false testimony from him about the 1994 burglary conviction, the prosecutor was able to establish on cross-examination (1) that Lovelace had lied to the jury about the nature of his 1994 burglary conviction; and (2) the burglary conviction was based on "check forgery or check fraud," like the instant case.
As we have explained, as shown by documents introduced into evidence during the bifurcated court proceeding regarding Lovelace's prior convictions, in 1994 Lovelace pled guilty to a burglary based on a complaint that also charged him with "forgery of a check" (§ 470) and "possession of a completed check with intent to defraud" (former § 475a). During Lovelace's direct examination, defense counsel asked Lovelace about the factual basis for his prior convictions, including asking Lovelace about the 1994 burglary conviction.
"Q. Okay. And in 1990, you also had a burglary, going into a store and shoplifting?

"A. Yes.

"Q. Okay. Another one in 1990, same thing, going into a store and shoplifting?

"A. Yes.

"Q. Okay. Another one in 1994, basically the same thing?

"A. Basically the same thing.

"Q. Okay. And another one after that in 1994, correct?

[¶] . . . [¶]

"[A]. That's correct."

Although defense counsel elicited testimony from Lovelace that the 1994 burglary conviction was "basically the same thing" as the earlier convictions for "going into a store and shoplifting," that testimony was not true, as the prosecutor demonstrated to the jury during his cross-examination of Lovelace. Specifically, the prosecutor began his cross-examination by asking if, despite Lovelace's testimony on direct examination, he was "actually charged with check fraud and check forgery" in 1994, not shoplifting. Lovelace responded, "I don't think so." However, the prosecutor then showed Lovelace the 1994 complaint and asked him to read it to himself. The prosecutor asked if it was true that the 1994 burglary conviction "wasn't for shoplifting[;] it was for check fraud and check forgery." Lovelace answered, "Yes, it was."
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Frye (1998) 18 Cal.4th 894, 979.) To establish ineffective assistance "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) "An ineffective assistance of counsel claim fails if the defendant makes an insufficient showing on either one of these components. (Strickland, at p. 687.) "It is defendant's burden to demonstrate the inadequacy of trial counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only 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. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, 57 Cal.4th at p. 1009.) " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' " (People v. Weaver (2001) 26 Cal.4th 876, 925.) " 'However, "deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. '[D]eference is not abdication' [citation]; it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions." ' [Citation] 'Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance.' " (In re Jones (1996) 13 Cal.4th 552, 561-562 (Jones).)
Lovelace argues that defense counsel was ineffective because, in asking him about the facts underlying the 1994 burglary conviction, she unnecessarily embarked on a line of questioning the natural tendency of which was to inform the jury that the 1994 burglary involved precisely the same type of misconduct with which Lovelace was currently charged. (See ante, fn. 6.) He claims she compounded the error by inviting Lovelace (by means of a leading question) to incorrectly testify the 1994 case involved shoplifting rather than check forgery, thus "open[ing] the door for the prosecutor to show Lovelace testified falsely." According to Lovelace, defense counsel's act of eliciting false testimony enabled the prosecutor to conduct a "devastating cross-examination," in which he showed that check forgery, rather than shoplifting, was the basis for the 1994 burglary conviction and proved that Lovelace lied to the jury about that conviction.
We begin with the observation that Lovelace correctly describes the harmful impact of the defense counsel's direct examination. Specifically, in eliciting false testimony from Lovelace about his 1994 burglary convictions, defense counsel opened the door for the prosecutor to demonstrate two damaging points to the jury during cross-examination. First, the jury was informed that Lovelace had a prior conviction for burglary based on conduct that was very similar to the present case, in that it involved check forgery and check fraud. Second, the prosecutor was able to show that Lovelace was not credible because he had just lied to the jury about the factual basis for his 1994 burglary conviction.

Defense counsel attempted on the record at trial to explain why she questioned Lovelace about his prior convictions on direct examination. First, defense counsel explained to the trial court during motions in limine that "[t]ypically, I think its good defense practice in many scenarios to deal with priors that are coming in on direct examination." Second, after closing argument, defense counsel stated, "just for the record, I went into some of the conduct . . . for the reason that I expressed when we were assessing it out in limine. We talked about how the burglary is identical to the charge here and that that was a problem, and your honor suggested that, well, I'm free to get into it how I see fit. So, strategically I did do that." However, defense counsel provided no explanation for why, during her direct examination of Lovelace, she chose to ask a leading question about the 1994 burglary conviction, which resulted in Lovelace agreeing that the conviction was based on "going into a store and shoplifting," when, in fact, the conviction was based on check forgery and check fraud.
Even accepting, based on defense counsel's statements, that she made a tactical decision to ask Lovelace about the factual basis for his prior convictions, it is nevertheless appropriate for us to resolve the ineffective assistance issue on direct appeal in this case. As we will explain, we perceive no possible "rational tactical purpose" for defense counsel to have elicited false testimony from Lovelace about the factual basis for his 1994 conviction (Mai, supra, 57 Cal.4th at p. 1009), and there "simply could be no satisfactory explanation" for her conduct under any set of circumstances. (Ibid.)
In analyzing whether there could be any rational tactical purpose for defense counsel's conduct, we focus on the two possible scenarios under which defense counsel may have decided to inquire into the circumstances underlying the 1994 conviction: (1) either she was not aware of the factual basis for the 1994 burglary conviction; or (2) she knew the 1994 burglary conviction was based on check forgery and check fraud, but she nevertheless decided to mischaracterize it as shoplifting. As we will explain, under either scenario, defense counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms." (Mai, supra, 57 Cal.4th at p. 1009.)
First, it is possible that defense counsel did not realize that the 1994 burglary conviction was based on check forgery and check fraud because she had not reviewed the complaint underlying the 1994 conviction, and she therefore assumed it was for shoplifting, and unwittingly elicited false testimony about that conviction from Lovelace. In that case, defense counsel's conduct fell below a competent professional standard of care because she did not adequately investigate the relevant facts before formulating her direct examination. "Although . . . trial counsel must be accorded wide latitude and discretion regarding trial tactics and strategy, 'the exercise of that discretion must be a reasonable and informed one in light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.' " (Jones, supra, 13 Cal.4th at p. 566.) "[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation." (In re Marquez (1992) 1 Cal.4th 584, 602.) Here, before taking the step of eliciting testimony from Lovelace about the 1994 burglary conviction, characterizing it as "going into a store and shoplifting," any reasonable attorney would first satisfy herself that, in fact, the 1994 burglary conviction was based on shoplifting. If defense counsel acted without conducting a sufficient investigation to confirm that she was not eliciting false testimony from Lovelace about the 1994 burglary conviction, she acted below the applicable standard of care.
Second, it is possible that defense counsel did understand that the 1994 burglary conviction was based on check forgery and check fraud rather than shoplifting, but that she nevertheless made an affirmative decision to mischaracterize the conviction, have Lovelace agree, and gamble that the prosecutor would not focus on that testimony in cross-examination. There is no possible rational tactical purpose for defense counsel to have done so. Although defense counsel explained on the record that she thought it was best to have the jury hear about Lovelace's prior convictions for the first time on direct examination, and not from the prosecutor, the way in which she implemented that strategy actually magnified the problem she was attempting to address and was highly damaging to Lovelace's credibility. Because defense counsel elicited false testimony from Lovelace that the 1994 burglary conviction was based on shoplifting, the door was opened for the jury to hear for the first time from the prosecutor that Lovelace had a prior conviction for burglary based on check forgery and check fraud. Moreover, because of defense counsel's direct examination, the prosecutor was able to portray Lovelace as a liar who should not be believed by the jury.
We can conceive of no worse scenario for the presentation of the fact of the 1994 burglary conviction to the jury. Although the trial court ruled that the prosecutor could introduce the fact of the 1994 burglary conviction, had defense counsel not opened the door by asking about the factual basis for that conviction, the jury would have learned nothing more than that Lovelace incurred a burglary conviction in 1994 and would not have known that the conviction was based on check forgery and check fraud. (See McClellan, supra, 71 Cal.2d at p. 809 ["The permissible scope of inquiry into a defendant's prior felony record includes the right to question the defendant as to the number of felonies of which he has been convicted and when they were committed"]; People v. Shea (1995) 39 Cal.App.4th 1257, 1267 [although " '[t]he scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense' " "if in 'admitting' the prior felony conviction 'the defendant first seeks to mislead a jury or minimize the facts of the earlier conviction' . . . he may properly be questioned further"].) Further, had defense counsel not elicited false testimony about the factual basis for the 1994 burglary conviction, the prosecutor would not have been able to establish that Lovelace lied to the jury during his direct examination about his most damaging prior conviction. In short, defense counsel's decision to elicit false testimony from Lovelace about the 1994 burglary conviction greatly magnified any prejudice to Lovelace that would have resulted from the jury learning about the 1994 burglary conviction in any other manner.
The remaining question is whether defense counsel's deficient representation of Lovelace caused prejudice. In this context, "[p]rejudice is shown when 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." (People v. Williams (1997) 16 Cal.4th 153, 215.)
Here, defense counsel's act of eliciting false testimony about the 1994 burglary conviction was especially damaging because the only truly disputed issue at trial was whether Lovelace was telling the truth when he testified that he was forced at gunpoint to go into the check cashing business and negotiate the fraudulent check. There was no evidence presented at trial by the People that would conclusively disprove Lovelace's version of events. As such the jury's assessment of Lovelace's credibility was crucial, but because of defense counsel's deficient representation of Lovelace, she opened the door to a cross-examination of Lovelace by the prosecutor that destroyed Lovelace's credibility in the eyes of the jury. Moreover, the jury was expressly instructed that it could use evidence of Lovelace's past convictions to assess his credibility, and that it could also consider whether a witness lied on the stand in deciding whether to believe any of the witness's testimony. In the absence of any evidence that would conclusively disprove Lovelace's claim that he acted under duress, the jury likely followed those instructions to rely on Lovelace's dishonesty on the stand and the fact of his prior conviction involving check forgery and check fraud to negatively assess the credibility of the story that he offered.
In our analysis of whether defense counsel's deficient representation caused prejudice to Lovelace, we are mindful of the fact that People had the burden to disprove that Lovelace acted under duress. As the jury was instructed, "The People must prove beyond a reasonable doubt that the defendant did not act under duress." The jury asked a question during deliberations showing that it was focused on the fact that the People had the burden on that issue. Absent the damaging cross-examination of Lovelace made possible by defense counsel's act of eliciting false testimony from him about the 1994 burglary conviction, the jury may well have concluded that although it was possible that Lovelace was not being truthful, the People did not meet their burden to disprove duress beyond a reasonable doubt.
Finally, the prosecutor's comments during closing argument lend further support to our conclusion that, without defense counsel's act of eliciting false testimony from Lovelace about the 1994 burglary conviction, it is reasonably probable that the jury would have found that the People did not meet their burden to disprove duress. The prosecutor's closing argument was focused on the assertion that Lovelace had lied to the jury in claiming that he was forced at gunpoint to negotiate the fraudulent check. As the prosecutor argued, "The defendant is a liar, and I will tell you why." In his rebuttal closing argument, the prosecutor focused on the fact that Lovelace had given false testimony about the 1994 burglary conviction, portraying that testimony as a failure to take responsibility for his actions.
"Now, when I was trying to show the defendant on the stand his 1994 prior for burglary and check fraud, the defendant almost kind of tried to minimize things and tried to refuse to even read that part in the complaint about forgery and check fraud. Why is that? Because he knows it's going to make him look bad in front of you guys that he's done it before.

"That's all this is, is blaming other people and not taking ownership of your—the responsibility for what you have done. The defendant is not taking responsibility. He still isn't.

"The defendant took the stand, tried to blame two African-American guys, tried to create a girlfriend that doesn't exist, tried to not read the complaint when I showed him his own certified prior for commercial burglary."

The prosecutor commented, "This defendant is a career criminal. He's been doing it for a long time. He knows the game." The prosecutor then concluded by stating the following: "Now, why are—why are those prior convictions important? Because, yes, it does go to credibility . . . . All this case is is that the defendant committed a crime and lied about it multiple times to us and to you. Call him out on those numerous lies. Go back into the deliberation room, reflect on all of those lies, talk about it, and then come back with verdicts of guilty . . . ."
Here, because the prosecutor argued to the jury that Lovelace had lied to them multiple times, used Lovelace's false testimony about the 1994 burglary conviction as an illustration of Lovelace's dishonesty, and further asked the jury to use Lovelace's prior convictions when assessing Lovelace's credibility, it is likely that the jury focused on Lovelace's false testimony about his 1994 burglary conviction to find that Lovelace lacked credibility and to reject his claim that he acted under duress in this case. The prosecutor would not have been able to make that argument had defense counsel not elicited false testimony from Lovelace about the 1994 burglary conviction.
In sum, we conclude that Lovelace has met his burden on direct appeal to establish (1) that defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, with no possible satisfactory explanation for her conduct; and (2) it is reasonably probable that without defense counsel's deficient performance, Lovelace would have obtained a different result at trial. Accordingly, we will reverse the judgment based on ineffective assistance of counsel.


DISPOSITION
The judgment is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the clerk of this court is directed to forward to the State Bar a copy of this opinion upon issuance of the remittitur. The clerk shall also notify defense counsel, Emily Rose-Weber, that she has been referred to the State Bar. (Id., § 6086.7, subd. (b).) We express no view on whether a State Bar disciplinary action is warranted.


IRION, J.

WE CONCUR:




BENKE, Acting P. J.




DATO, J.