In re E.S.,







Filed 3/10/09




CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re E.S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. E. S., Defendant and Appellant.	A118547 (Humboldt County Super. Ct. No. JV060084)

STORY CONTINUE FROM PART I….

The Dispositional Hearing
On April 25, 2007, a little more than two months after the motion for new jurisdictional hearing had been filed but before the hearing on that motion, appellant’s new counsel filed an ex parte application for an order authorizing funding for expert services to assist her in connection with appellant’s motion for a new jurisdictional hearing. The court granted the request, directing payment from the county general fund to pay Dr. Andrew Renouf $1,500 for his services. Dr. Renouf’s report emphasizes that his assessment of appellant was complicated by “the undetermined validity of the charges” against appellant, and the fact that “in many ways [E.S.] does not fit the typical personality or historical profile for juvenile sex offenders.” The report acknowledges that appellant “comes from an extremely dysfunctional family background and has likely gravitated towards gang involvement as a way for substituting for his missing family members and helping him survive on the streets,” but at the same time he “was going to school, performing well academically, and participating in team sports. He reportedly was liked by his coach and high school principal, and is liked by Regional Facility staff. He was described as respectful of authority, a strong participator in treatment groups, and a positive peer leader. In addition, [appellant] passed a polygraph test denying he committed the index offense, reportedly engaged in age-appropriate sexual activity when he had the opportunity, has generally good impulse control, and no unusual sexual preoccupations revealed by psychological testing results or history.” Dr. Renouf repeatedly points out that appellant “adamantly” and “consistently denied the allegations against him of molest” and notes “that the abilities to not confess when faced with a polygraph test and to maintain one’s innocence over an extended period of time imply a level of psychological sophistication which test results suggest [appellant] does not possess.”
Dr. Renouf concluded that, “[if] the allegations of sexual molest are unfounded, [E.S.] would not require sex-offending treatment.” However, assuming, as did Judge LaCasse, that appellant committed the alleged molestation, Dr. Renouf felt compelled to recommend a treatment program designed to “break-down [E.S.’s] denial and have him assume responsibility for his behavior.” Like the probation department, Dr. Renouf recommended placing appellant in a suitable residential treatment program. He felt medication was not required but that drug and alcohol treatment programs would be appropriate.
At the commencement of the disposition hearing conducted on June 8, 2007, Judge Wilson stated that he had read the original and supplemental disposition reports and, upon counsels’ submission of the issue to the court, ordered residential treatment and counseling or sex offender treatment. Judge Wilson expressed concern that he did not have a Penal Code section 288.1 evaluation of appellant, but felt “Dr. Renouf’s evaluation suffices in that respect.” Presumably on the basis of that evaluation, Judge Wilson concluded that “I don’t consider [appellant] to be necessarily a danger to the community by way of potential for sexual offense. But I do consider him to be a danger to the community by way of his lack of impulse control and substance abuse and also the unavailability of adequate familial support.” (Judge Wilson noted that Dr. Renouf disagreed with his conclusion that appellant lacked impulse control.)
At that point in the dispositional proceedings, appellant’s counsel sought leave to renew the motion for a new jurisdictional hearing, basing the request on several statements in Dr. Renouf’s report, including the statements that appellant “does not fit the typical personality or historical profile for juvenile sex offenders” and lacked the “psychological sophistication” to maintain his innocence in the face of a polygraph test and then pass the test. The district attorney opposed the request to renew the motion for a new jurisdictional hearing, and the court denied it, stating that a different evaluator “might see [appellant] differently, I suppose.” Judge Wilson noted that although “my experience with Dr. Renouf is that he’s straightforward and objective [and] [t]here’s no reason for me to doubt his evaluation in any respect. [¶] . . . I found the victim’s testimony and recitation to be straightforward [and] I, frankly, agreed with the Judge who presided over the jurisdictional hearing.” Agreeing that appellant’s offense was not “an aggravated, sexual-type assault,” but “an instance of poor impulse control and poor judgment,” Judge Wilson denied the request to renew appellant’s motion for a new jurisdictional hearing.
The court found: the maximum time of confinement was 7 years 3 months 19 days; appellant’s continuance at the home would be contrary to his welfare; reasonable efforts had been made to prevent his removal from that home and enable his return thereto. Accordingly, the court ordered that appellant be retained as a ward of the court, committed to the care and custody of the probation officer, and that all previous probation orders remain in force. As noted, appellant was placed in a residential treatment facility to receive counseling or sex offender treatment.
Discussion
The principles that guide our analysis were set forth by our Supreme Court more than 20 years ago in People v. Ledesma (1987) 43 Cal.3d 171 [233 Cal.Rptr. 404, 729 P.2d 839] (Ledesma), and are still applicable:
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. (E.g., Strickland v. Washington (1984) 466 U.S. 668, 684-685 [104 S.Ct. 2052, 80 L.Ed.2d 674] [(Strickland)] [discussing federal constitutional rights]; People v. Pope [(1979)] 23 Cal.3d 412, 422 [152 Cal.Rptr. 732, 590 P.2d 859] [(Pope)] [discussing both state and federal constitutional rights].) The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its results. (See, e.g., Strickland, supra, at pp. 684-687 . . ; Pope, supra, 23 Cal.3d at pp. 423-425.) [¶] Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. (E.g., Strickland, supra, 466 U.S. at p. 686 . . . ; Pope, supra, 23 Cal.3d at pp. 423-424.) Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ (United States v. De Coster (D.C. Cir. 1973) 487 F.2d 1197, 1202, italics deleted; accord, Pope, supra, at p. 423; see, e.g., Strickland, supra, at pp. 686-689 . . . .) [¶] Under this right, the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (See, e.g., In re Hall (1981) 30 Cal.3d 408, 426 [179 Cal.Rptr. 223, 637 P.2d 690]; People v. Frierson (1979) 25 Cal.3d 142, 166 [158 Cal.Rptr. 281, 599 P.2d 587]; see also Strickland, supra, 466 U.S. at pp. 690-691 . . . .) If counsel fails to make such a decision, his action—no matter how unobjectionable in the abstract—is professionally deficient.” (Ledesma, supra, 43 Cal.3d at p. 215)
The test to determine whether a criminal defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction consists of two prongs. First, the defendant must show that counsel’s performance was deficient in that it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” (Strickland, supra, 466 U.S. at p. 688; accord, Pope, supra, 23 Cal.3d at pp. 423-425.) If counsel’s performance has been shown to be deficient, the defendant is entitled to relief only if it can additionally be established that he or she was prejudiced by counsel’s deficient performance. (Strickland, supra, at pp. 691-692; accord, Ledesma, supra, 43 Cal.3d at p. 217.) As to these issues, the defendant bears the burden of proof. (Pope, supra, at p. 425.)
We shall conclude that Hauschild’s performance was deficient in that he (1) failed to investigate potentially exculpatory evidence, (2) sought an inadequate continuance based on a mistake of law, and, (3) failed to move for a substitution of counsel knowing he was unable to devote the time and resources necessary to properly defend appellant. Further concluding that these deficiencies were prejudicial, we shall reverse the judgment.
I.
Emphasizing the duty of defense counsel “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (Strickland, supra, 466 U.S. at p. 691), appellant correctly points out that a defense attorney who fails to investigate potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation. (See, e.g., In re Jones (1996) 13 Cal.4th 552, 564-565 [54 Cal.Rptr.2d 52, 917 P.2d1175]; Reynoso v. Giurbino (9th Cir. 2006) 462 F.3d 1099, 1112; Rios v. Rocha (9th Cir. 2002) 299 F.3d 796, 805; Hart v. Gomez (9th Cir. 1999) 174 F.3d 1067, 1070; Sanders v. Ratelle (9th Cir. 1994) 21 F.3d 1446, 1456.) California case law makes clear that counsel has an obligation to investigate all possible defenses and should not select a defense strategy without first carrying out an adequate investigation. (In re Gay (1998) 19 Cal.4th 771, 790 [80 Cal.Rptr.2d 765, 968 P.2d 476]; In re Visciotti (1996) 14 Cal.4th 325, 334 [58 Cal.Rptr.2d 801, 926 P.2d 987]; In re Vargas (2000) 83 Cal.App.4th 1125, 1133 [100 Cal.Rptr.2d 265]; Rios v. Rocha, supra, 299 F.3d at pp. 805-806.)
It bears noting that appellant was charged with a violation of Penal Code section 288, subdivision (a), a serious and violent felony and a potential strike (Pen. Code, §§ 1192.7, subd. (c)(6), 667.5, subd. (c)(6), 1170.12, subd. (b)(1)), and an offense exposing him to sex offender registration requirements. (Pen. Code, § 290.008; In re G.C. (2007) 157 Cal.App.4th 405 [68 Cal.Rptr.3d 523].) While we do not intend to imply that any criminal charge is insignificant, reasonable counsel certainly would have appreciated the need to devote adequate time and resources to appellant’s defense.
From the police report and his discussions with appellant, Hauschild must have been aware at the outset that the prosecution’s case rested almost entirely on the credibility of T.S., who had just turned 10, because she was the only witness to the alleged offense and there was no physical evidence corroborating her claim. The information Jason S. provided Hauschild less than a week after he was appointed to represent appellant included not only that T.S. had been molested by an uncle and perhaps also her father, and therefore had been exposed to more sexual conduct than most 10 year olds, but also that on a specific occasion she threatened to lie in order to work her will. Jason also provided the names of others who could corroborate this information, and told Hauschild how he could contact these individuals. Additionally, Jason informed Hauschild that Sherry was angry with appellant because of his relationship with Jason and for this reason, as well as her sensitivity about the molestation of her children by other relatives, had threatened appellant that she would “send him back to juvenile hall.” Despite the potential use of this information to impeach T.S. and Sherry, Hauschild made no investigatory efforts.
The sexual experiences of not just T.S. but also her siblings could have been used by the defense to advantage if the information Jason provided had been investigated and verified, even in part. For example, T.S.’s prior molestation by an uncle, who allegedly also molested I.S., and evidence that S.S. had been found “sucking the penis” of another child, suggests T.S. may have been aware of this form of child molestation. Jason testified that he gave Hauschild the address of the daycare center at which S.S. was found sucking the penis of another child, and the name of the daycare employee to talk to, but Hauschild never contacted that person because, as he explained in his declaration, he had neither the time nor the investigatory resources.
In In re Vargas, supra, 83 Cal.App.4th 1125, in which the petitioner was charged with forcible lewd conduct upon a child, the expected defense was that the petitioner’s daughter and ex-wife concocted the story of molestation out of revenge because he was leaving his ex-wife and his daughter did not want to move with him to another state. Although many family friends had apparently agreed to testify on the petitioner’s behalf, his attorney called none of them as witnesses. The attorney claimed that neither the petitioner nor many members of his family with whom she spoke were able to identify such willing witnesses. This representation was contested and the court ordered an evidentiary hearing to ascertain whether an investigation was warranted, whether the attorney conducted an investigation, and whether any investigation was sufficient or perfunctory. (Id. at p. 1138.) The doubt presented in Vargas as to whether defense counsel conducted an adequate investigation does not exist in the present case, as Hauschild fully acknowledges he received information warranting an investigation he failed to conduct.
In Williams v. Washington (7th Cir. 1995) 59 F.3d 673, as here, the credibility of the complaining witness was the central issue. The petitioner, who had been convicted in state court of indecent liberties with her 13-year-old adopted daughter, asserted the denial of effective assistance of counsel at trial. The only persons who testified at the bench trial were the child, a police officer, the petitioner, and her husband. Aside from airing the petitioner’s denials and those of her husband, defense counsel called no witnesses and produced no evidence in favor of the petitioner despite the existence of school files suggesting the child victim “ ‘had a problem telling the truth.’ ” (Id. at pp. 675-676.) Though defense counsel admitted he conducted no investigation other than speaking with his clients, the state insisted this behavior was objectively reasonable “because this case was a ‘simple’ credibility contest.” (Id. at p. 681.) The court disagreed. Pointing out that the excluded witnesses would have bolstered the testimony of the petitioner and her husband and undercut that of the child, the court concluded that “[b]ecause investigation into this matter might have revealed evidence bearing upon credibility (which counsel believed was the sole issue in the case), the failure to investigate was not objectively reasonable.” (Ibid., citing Chambers v. Armontrout (8th Cir. 1990) 907 F.2d 825, 830-831, cert. den. sub nom. Armontrout v. Chamgers (1990) 498 U.S. 950 [111 S.Ct. 369, 112 L.Ed.2d 331].)
Here, the district attorney did not argue that Hauschild would have been unable to corroborate the information Jason wanted to provide him and use this evidence to impeach T.S.’s credibility. Her argument was that this would have been a risky strategy and Hauschild had a good tactical reason for not pursuing it. According to the district attorney, pursuing the incest and sexual acts of Sherry and the sexual experiences of her children would have been a strategic mistake, because “it’s reasonable that a trier of fact, perhaps not properly, . . . may, nonetheless, conclude that a young man who is in a family that has multiple incidences of molest may be more likely to himself have committed a molest. I think that was probably a door that, frankly, Mr. Hauschild properly chose not to open . . . .” This argument is self-defeating, for it ignores Hauschild’s duty to anticipate the very danger the district attorney described; namely, that, for the reasons given by the district attorney, the prosecution might introduce the regularity of sexual molestation within appellant’s family—as indeed it did through Sherry’s direct testimony that molestations were commonplace in her extended family, which included appellant.
Hauschild concedes in his declaration, and it seems to us clearly the case, that he had no tactical justification for his failure to investigate and “much more should have been done in defending this case.” As we have seen, the reasons Hauschild offers for the deficiencies in his representation of appellant pertain solely to the magnitude of his caseload, which assertedly made “it impossible for me to thoroughly review and litigate each and every case, several of which were serious and violent felonies, including [appellant’s] PC 288 strike case,” as well as the inadequate investigative and other resources of the Mendocino Public Defender’s Office. Hauschild’s attempt to obtain such resources and/or obtain relief from the competing demands of his many other cases were assertedly rebuffed by his supervisor, and Hauschild feared he “would lose my job” if he continued to push these requests, as would also happen “if I requested or attempted to demand funding for a polygraph for my client.”
Acknowledging Hauschild made “errors,” the court found the evidence he was ineffective inadequate because it consisted primarily of Jason S.’s testimony that he provided Hauschild information potentially useful to appellant’s defense which Hauschild failed to pursue. The trial judge disregarded Jason’s testimony because he believed it consisted of “multiple layers of hearsay” and was not credible due to the fact Jason is an ex-felon. Jason S.’s testimony cannot be so easily dismissed.
To begin with, Jason’s credibility was not to be measured from the perspective of a trier of fact at a trial on the merits, as the court did, but from that of an attorney charged with the duty to defend a client against criminal charges. The question before the court was not whether Jason’s claims were true, but whether Hauschild’s failure to inquire into their truth was reasonable; that is, would a reasonable attorney in Hauschild’s shoes have felt a professional duty to his client to verify those claims‌ Given Jason’s long relationship with and knowledge of appellant, Sherry, and T.S. and her siblings, the specificity and facial significance of the information he provided, and his identification of others who would assertedly corroborate his claims and how such persons could be contacted, no reasonable defense attorney would have declined to investigate the information he provided simply because it contained hearsay and Jason was an ex-felon (especially one who had been released from custody six years earlier and was presently gainfully employed).
As our Supreme Court has observed, “ ‘ “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” ’ ” (In re Thomas (2006) 37 Cal.4th 1249, 1258 [39 Cal.Rptr.3d 845, 129 P.3d 49]; see also Pope, supra, 23 Cal.3d at pp. 424-425.) As we have explained, the People offer no persuasive strategic reason for Hauschild’s admitted failure to investigate.
The trial court’s failure to assign any significance to, or even to mention, Hauschild’s lengthy and detailed admission of his own deficiencies and explanation of the reasons he failed to provide appellant the diligent advocacy to which appellant is constitutionally entitled is inexplicable.
II.
Hauschild states in his declaration that he knew the seven-day continuance he sought and received was inadequate to permit him to fully investigate and competently defend appellant, but declined to seek a longer continuance because he believed Welfare and Institutions Code section 682 did not permit a continuance longer than seven days. One of the tests of whether counsel has provided effective representation is whether he or she “effectively suppl[ied] to a defendant those skills and legal knowledge which we can reasonably expect from any member of the bar.” (People v. Cook (1975) 13 Cal.3d 663, 672-673 [119 Cal.Rptr. 500, 532 P.2d 148], italics added, cited with approval in People v. Pope, supra, 23 Cal.3d at p. 421.)[1] Hauschild’s understanding of section 682 is incorrect. That statute provides that upon a showing of good cause a continuance may be granted “for that period of time shown to be necessary by the moving party at the hearing on the motion.” (Welf. & Inst. Code, § 682, subd. (b), italics added; see also Pen. Code, § 987.05.) Subdivision (e) of section 682—which provides that “the hearing shall commence on the date to which it was continued or within seven days thereafter whenever the court is satisfied that good cause exists [for a further continuance] and the moving party will be prepared to proceed within that time”—does not limit the period for which the initial continuance may be granted on a showing of good cause. So far as we can ascertain from the record, the seven-day continuance Hauschild sought (for the purposes of allowing inspection of juvenile court records pertaining to T.S. or Sherry) was the initial continuance sought at the jurisdictional hearing.
Moreover, even if Welfare and Institutions Code section 682 imposed the time limitation Hauschild erroneously thought it did, he still could have requested a continuance to a jurisdictional hearing date beyond the statutorily prescribed period, which would be deemed a waiver of speedy trial rights. (See, e.g., People v. Griffin (1971) 15 Cal.App.3d 442, 447, 450 [continuances totaling six months properly granted on the basis of defense counsel’s representation that “further investigation is required”]; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Criminal Trial, §§ 319-321.)
Given the paramount responsibility of a judicial officer to assure the provision of a fair trial, we will not assume Judge LaCasse would have denied appellant an adequate continuance or other appropriate relief if the request was based on an adequate showing that Hauschild’s excessive caseload and the limited resources of the public defender’s office made it impossible for him to effectively represent appellant.
III.
Even if a request for an adequate continuance was denied, or would not solve the funding problem that apparently prevented Hauschild from competently defending appellant, Hauschild had other means by which to protect appellant’s right to effective representation. A court, before trial, may address a defendant’s claim that he or she is receiving ineffective assistance of counsel and a motion allowing counsel to withdraw from the case and substitute other counsel. (People v. Stankewitz (1990) 51 Cal.3d 72, 87-88 [270 Cal.Rptr. 817, 793 P.2d 23] [“the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when ‘there is a sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if [the defendant’s] request was denied’ ”]; see also State v. Peart (La. 1993) 621 So.2d 780, 787.) The question is whether Hauschild’s failure to take that course, or perhaps more saliently that of his supervisor, fell below an objective standard of reasonableness under prevailing professional norms relating to the responsibilities of public defenders and other publicly-funded lawyers representing indigent accused persons.
The conduct required of attorneys in this state is determined not just by the Rules of Professional Conduct, the State Bar Act (Bus. & Prof. Code, § 6000 et seq.) and judicial opinions, but also by consideration of “[e]thics opinions and rules and standards promulgated by other jurisdictions and bar associations.” (Rules of Prof. Conduct, rule 1-100(A).)[2] The American Bar Association (ABA) has devoted much attention to the obligations of a public defender in the predicament in which Hauschild found himself. [3] On May 13, 2006, the ABA issued its Formal Opinion 06-441, entitled “Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere with Competent and Diligent Representation” (ABA Com. on Ethics, opn. No. 06-441 (2006) p. 1 (ABA Opinion).) Noting that, as under the California Rules of Professional Conduct (see rule 1-100(B)(1)(d)), a public defender’s office “is considered to be the equivalent of a law firm” and “responsibility for handling [a] case[] . . . falls upon [the] office as [a] whole,” the opinion makes clear that the ethical obligations of public defenders and other publically funded attorneys who represent indigent persons charged with crimes are no different from those of privately retained defense counsel. (ABA Opinion at p. 5, fn. 16.) Under the ABA Opinion, a deputy public defender whose excessive workload obstructs his or her ability to provide effective assistance to a particular client should, with supervisorial approval, attempt to reduce the caseload, as by transferring non-representational responsibilities to others, refusing new cases, and/or transferring cases to another lawyer with a lesser caseload. If the deputy public defender is unable to obtain relief in that manner the ABA Opinion provides, he or she must “file a motion with the trial court requesting permission to withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.” (Id. at p. 5.) In support of the motion, counsel “should provide the court with information necessary to justify the withdrawal, while being mindful of the obligations not to disclose confidential information or information as to strategy or other matters that may prejudice the client.” (Id. at p. 6, fn. 23; see also In re Order on Motions to Withdraw Filed by Tenth Circuit Public Defender (Fla.Dist.Ct.App. 1992) 612 So.2d 597 (en banc) [public defender’s office entitled to withdraw due to excessive caseload from representing defendants in 143 cases].) If the request to withdraw is denied by the trial court, the attorney should pursue appellate review. (See Iowa Supreme Court Bd. Of Professional Ethics & Conduct v. Hughes (Iowa 1996) 557 N.W.2d 890, 894; see also Ligda v. Superior Court (1970) 5 Cal.App.3d 811 [85 Cal.Rptr. 744].) The conduct prescribed by the ABA Opinion, which is fully consistent with the California Rules of Professional Conduct,[4] may also be statutorily mandated.
Under the Penal Code, a public defender may not be assigned to represent an indigent defendant in a case in which he or she has a conflict of interest (Pen. Code, § 987.2, subds. (a)(3), (d) & (e)), and a conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing. (In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender (Fla. 1990) 561 So.2d 1130, 1135.) As we said in a different but related context in Ligda v. Superior Court, supra, 5 Cal.App.3d 811 at pages 827-828, “[w]hen a public defender reels under a staggering workload, he . . . should proceed to place the situation before the judge, who upon a satisfactory showing can relieve him, and order the employment of private counsel [citation] at public expense. Such relief, of necessity, involves the constitutional injunction to afford a speedy trial to a defendant. Boards of supervisors face the choice of either funding the costs of assignment of private counsel and often, increasing the costs of feeding, housing and controlling a prisoner during postponement of trials; or making provision of funds, facilities and personnel for a public defender’s office adequate for the demands placed upon it.” (See also Pen. Code, § 987.2, subd. (a) [reasonable compensation of assigned counsel to be paid out of county general fund].)[5]
Hauschild’s declaration makes clear his awareness that his heavy caseload and the inadequate resources of the Mendocino Public Defender’s Office made it “impossible for me to thoroughly review and litigate [appellant’s] case.” Hauschild avers that he brought this problem to the attention of his supervisor, the Mendocino Public Defender, but to no avail. Nor did the public defender himself independently seek the withdrawal of his office in appellant’s case, as he might have done.[6] (See Ligda v. Superior Court, supra, 5 Cal.App.3d 811.) In short, if the undisputed representations set forth in Hauschild’s declaration under penalty of perjury are true, as for present purposes we must assume, Hauschild (and seemingly his supervisor) was not only aware the Mendocino Public Defender’s Office could not provide appellant effective representation, or should have been aware of this, but failed to take reasonable steps to avoid reasonably foreseeable prejudice to appellant’s rights.
For the foregoing reasons, we conclude that the representation provided appellant by the Mendocino Public Defender’s Office was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Thus we turn to the second prong of the applicable test: whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” keeping in mind that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
IV.
The frailty of the juvenile court’s finding that Hauschild provided appellant effective assistance is reflected in the fact that the court felt it necessary to explain why appellant suffered no prejudice even if the assistance he received from Hauschild was ineffective. With respect to that issue the court placed special emphasis on the observations in Ledesma, supra, 43 Cal.3d 171 about the “the danger of second-guessing in reviewing claims of ineffective assistance,” namely the practical difficulty for judges in assessing the reasonableness of counsel’s acts and omissions, and “the adverse consequences that systematic ‘second-guessing’ might have on the quality of legal representation provided to criminal defendants and on the functioning of the criminal justice system itself.” (Id. at p. 216.)
The juvenile court failed, however, to consider the Ledesma court’s caveat “that 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. Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance.” (Ledesma, supra, 43 Cal.3d at p. 217.) Despite the fact that, unlike the present case, the defense attorney in Ledesma offered no explanation for why he acted or failed to act in the manner challenged, and the appellate record shed no light on the matter (id. at p. 218), the Ledesma court held that counsel provided ineffective assistance by failing to investigate the viability of a diminished capacity defense. The court rejected the Attorney General’s argument that the failure to make this investigation was justified by the defendant’s insistence on relying instead on an alibi defense. Even if the defendant had insisted on an alibi defense, the court explained, the Attorney General’s contention would still lack merit, because “[c]ounsel’s first duty is to investigate the facts of his client’s case and to research the law applicable to those facts. ‘Generally, the Sixth Amendment and article I, section 15 require counsel’s “diligence and active participation in the full and effective preparation of his client’s case.” [Citation.] Criminal defense attorneys have a “ ‘duty to investigate carefully all defenses of fact and law that may be available to the defendant . . . .’ ” ’ [Citation.] . . . That counsel . . . may be compelled to yield to his client’s right to insist on the presentation of a defense of his own choosing [citation] does not excuse him from his duty to investigate and research other defenses so as to make an informed recommendation to his client [citation].” (Id. at p. 222.)
Ledesma, supra, 43 Cal.3d 171, does not support but undermines the ruling below. Unlike the defendant in Ledesma, appellant did nothing to discourage Hauschild from investigating the information Jason provided; indeed during the jurisdictional phase appellant was not even aware Jason provided or sought to provide Hauschild any information on his behalf. Moreover, unlike the defense attorney in Ledesma, Hauschild did not remain silent but acknowledged his failure to investigate and made clear it was not the result of any tactical calculation. That unusual admission and the reasons given by Hauschild for his deficient representation clearly warranted judicial attention.
The remaining reason Judge Wilson found appellant was not prejudiced by Hauschild’s representation was that, while Judge LaCasse’s jurisdictional determination was based on the credibility of the testimony of T.S., Judge Wilson felt that Sherry’s testimony was also credible because Jason corroborated her statement that she phoned him and his wife before calling the police. Sherry’s testimony was, however, relatively insignificant: The critical witness in this case was T.S., and Hauschild failed to subject her to any voir dire, made no inquiry into her ability to appreciate the difference between truth and falsity and to tell the truth; nor even asked her to promise to tell the truth, as may be required of a child her age. (Evid. Code, § 710.) Judge LaCasse made clear that, as he said at the hearing, “what it comes down to is whether the child is credible or not,” and his finding that T.S. was credible does not appear to have rested at all on Sherry’s credibility, which he had ample reason to question given the information provided in the sealed records he reviewed in camera. (See discussion, ante, fn. 1). Moreover, had Hauschild subjected Sherry to cross-examination regarding her startling revelation that, over three generations, she was one of only two people in her extended family who had not been molested as a child—which opened the door to examination of the molestations and attempted molestations of T.S. and I.S., and the sexual acts of S.S. on another minor, as well as Sherry’s own sexual acts with minors—her testimony would likely have been seen in a very different light.
Nor did Hauschild do anything to buttress appellant’s testimony. The theory of Hauschild’s defense was that appellant had no reason to molest T.S. and was not the sort of person likely to do so. As he emphasized in closing argument, at the time of the alleged molestation appellant was “turning his life around”; he had completed a drug treatment program, ended his past gang involvement, was regularly attending school, playing football, spending time with his 17-year-old girlfriend, and assisting Sherry with the raising of her children and the running of her household. Hauschild also emphasized appellant had never been charged with a sex offense of any sort. However, Hauschild failed to offer any testimonial or other evidence supporting this argument, such as Dr. Relouf’s opinion that appellant “does not fit the typical personality or historical profile for juvenile sex offenders” and “lacked the psychological sophistication” necessary to maintain his innocence in the face of a polygraph test and then pass the test.
Acknowledging that the prosecution’s case boiled down to the question “why would a ten-year-old child make this up‌”, Hauschild’s only response was “well, its not the defense’s burden to—to provide an answer to that question. And I don’t think that anyone would have an answer to that question.” But Jason had provided Hauschild several potential answers. First, Hauschild was given information suggesting T.S. may have obtained her knowledge of the sexual act she claimed appellant perpetrated not from his actions but from other sources. As Jason claimed (and Sherry corroborated), T.S. had previously been molested twice by adult members of her family and at least one of her siblings may have committed on another child the same type of molestation she claimed appellant committed on her. Jason also provided Hauschild information which, if verified, would cast doubt on T.S.’s credibility, including a specific example of her threatening to make a false accusation to get her way. (Evid. Code, § 780.) Jason further gave Hauschild reason to believe Sherry had threatened to send appellant back to juvenile hall, and that her anger at him may have stemmed from prior molestations and attempted molestations of T.S. and I.S. by her uncle and ex-husband. Despite Jason’s report and provision of contact information for others who could provide similar evidence, all these possibilities were left wholly unexplored. This omission, of course, was exacerbated by Hauschild’s failure to voir dire T.S. regarding her sexual experiences and the false accusation Jason said she threatened to make.
To prevail on his claim of ineffective assistant of counsel, appellant must show not just that Hauschild’s deficiencies had some conceivable effect on the outcome of the proceeding, but that “there is a reasonable probability that, but for counsel’s professional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at pp. 693-694.) Specifically, “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695.) “Finally, the burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.” (Ledesma, supra, 43 Cal.3d at p. 218, citing In re Imbler (1963) 60 Cal.2d 554, 560 [35 Cal.Rptr. 293, 387 P.2d 6].)
Mindful of the foregoing guidelines, we conclude that Hauschild’s deficient performance prejudiced appellant within the meaning of Strickland. First, the case must be considered a close one because there was no eyewitness or physical evidence and the matter turned almost entirely on credibility. Second, the evidence made available to Hauschild by Jason was germane to the central issue of the victim’s credibility. Third, Hauschild failed to produce available evidence indicating that appellant does not fit the typical personality or historical profile for juvenile sex offenders and lacks the psychological sophistication necessary to steadfastly maintain his innocence over a long period of time and in the face of a polygraph test.
We conclude appellant has shown that, as a result of Hauschild’s deficient performance, the jurisdictional proceedings conducted in the Mendocino Superior Court were fundamentally unfair and unreliable (Strickland, supra, 466 U.S. at p. 684) and that there is “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695.)
Disposition
For the foregoing reasons, the judgment is reversed and the matter is remanded to the juvenile court with directions to conduct a new jurisdictional hearing.


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Kline, P. J.


We concur:


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Haerle, J.


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Lambden, J.


Trial Courts: Humboldt County Superior Court
Mendocino County Superior Court

Trial Judges: Hon. Christopher G. Wilson
Hon. Leonard LaCasse

Attorneys for Appellant: Kathryn Ann Seligman
Melanie Martin DelCampo

Attorneys for Respondent: Edmund G. Brown, Attorney General
Dane R. Gillette, Chief Asst. Attorney General
Gerald A. Engler, Senior Asst.
Attorney General
Martin S. Kaye, Supervising Deputy
Attorney General
Christina Vom Saal, Deputy Attorney General


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