Filed 3/12/14 P. v. Cooksey CA5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JUSTIN JACOB COOKSEY, 

 Defendant and Appellant. 

F066535 

(Super. Ct. No. CRF38682) 

O P I N I O N

THE COURT

 APPEAL from a judgment of the Superior Court of Tuolumne County. James A. 

Boscoe, Judge. 

 William I. Parks, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari 

Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

 Before Gomes, Acting P.J., Franson, J., and Peña, J. 
2 

 A jury convicted appellant, Justin Jacob Cooksey, of assault with a deadly weapon 

(count 1/Pen. Code, § 245, subd. (a)(1)),1 battery with serious bodily injury 

(count 2/§ 243, subd. (d)), misdemeanor battery (count 3/§ 242), and misdemeanor 

vandalism (count 4/§ 594, subd. (a)). The jury also found true a great bodily injury 

enhancement (§ 12022.7, subd. (a)) in count 1. 

 On January 17, 2013, the court sentenced Cooksey to an aggregate seven-year 

term, the upper term of four years on count 1, a three-year great bodily injury 

enhancement in that count, a stayed, concurrent four-year term on count 2, a concurrent 

six-month term on count 3, and a concurrent one-year term on count 4. 

 On appeal, Cooksey contends he was denied the effective assistance of counsel by 

defense counsel’s failure to: 1) object to certain hearsay evidence and character 

evidence; 2) properly cross-examine a prosecution witness; and 3) object to improper 

remarks by the prosecutor during closing arguments. We affirm. 

FACTS 

The Prosecution Case 

 Rochelle Deutsch (Rochelle) testified that on May 27, 2012, she and her husband, 

Leonard Deutsch (Leonard) decided to take their two children, ages six and two, in their 

pickup truck to Don Pedro Lake. As Leonard drove south on Highway 132 from 

Coulterville toward La Grange a white Chevy sedan came up behind them honking its 

horn and flashing its lights. The car then passed them at a “blind corner” where Merced 

Falls Road dead ends at Highway 132 and where there was a double yellow line on the 

highway. According to Rochelle, the car had five occupants including the right rear seat 

passenger, who Rochelle later learned was Cooksey and the driver, who Rochelle later 

learned was Cooksey’s sister, Bailey Cooksey (Bailey). 

 

1 Unless otherwise indicated, all further statutory references are to the Penal Code. 
3 

 The car traveled a short distance farther and turned into Don Pedro Market. 

Although the Deutsches had not intended to stop at the market, they followed the car into 

the parking lot and parked next to it in order to confront the occupants about the way 

their car had passed them. As Bailey got out of the driver’s side and started walking to 

the market, the Deutsches started yelling things like, “What the hell? Why are you 

passing us like that?” Cooksey then got out of the car, stood right in front of Leonard’s 

face and yelled “What the F?” The Deutsches replied, “Why are you passing us like 

that?” Delia Doiron, a clerk at the market, soon came out of the store and told Cooksey, 

“God damn it, Jacob, don’t start this shit again or I’m calling the f-ing cops.” 

 At that point, the Deutsches got back into their truck, drove south on Highway 132 

a short distance, and parked in a turnout next to Don Pedro Lake. Leonard then got out of 

the truck and began releasing the truck seat to let the children out. As Rochelle was 

undoing her seat belt, she saw something out of the corner of her eye and heard Leonard 

hit the side of the truck. Rochelle looked and saw a man whom she identified in court as 

Cooksey2 swing a tire iron at Leonard twice.3 She finished undoing her seat belt, got out 

of the truck, and ran to her husband who by then was lying unconscious on the ground 

with his head and right shoulder under the bed of the truck. Rochelle said, “What the 

fuck?” Cooksey turned around, dropped the tire iron and made a growling sound. He 

then stepped toward Rochelle and punched her once on the head. Rochelle said, “What 

the F? I’m a girl.” Cooksey replied that he did not care and punched her again. Rochelle 

protested that her kids were in the truck and was struck on the back of the head by Bailey. 

 

2 Rochelle also identified Cooksey in court as the man with whom they argued in 

the market parking lot. 

3 According to Rochelle, the tire iron, which was L shaped, had been on the truck’s 

floorboard before the assault and Leonard must have kicked it out of the truck when he 

got out. 
4 

As Bailey ran back to her car, Cooksey picked up the tire iron and threw it at the 

windshield of the Deutsches’ truck, leaving a large shattered area on the driver’s side and 

two cracks that extended to the passenger’s side. Cooksey then ran toward his car and 

after he and the other riders got in, the car drove off.4 

 Meanwhile, Rochelle tried unsuccessfully to wake Leonard. She then flagged 

down a truck with two male occupants, one of whom assisted her with Leonard while the 

other one left to call the sheriff’s department. Eventually, the fire department and an 

ambulance arrived and Leonard was transported to a hospital. 

 Rochelle was told by fire department personnel that she could not drive the truck 

because of the damage to the windshield. However, Rochelle knew one of the firemen 

and he drove the truck with her and her children back to the market. While the fireman 

sat with her children in the truck, Rochelle walked inside the market with blood on her 

hands looking like she had been crying. Doiron saw her and asked what was wrong. 

Rochelle replied that Leonard had been attacked. When Doiron asked by whom, 

Rochelle replied, “That f-ing prick from the parking lot.” Doiron told Rochelle that the 

man they encountered earlier in the parking lot was Cooksey and that the woman driving 

the car Cooksey had been in was his sister, Bailey. 

 Two days after the assault, Tuolumne County Sheriff’s Deputy Matthew Stuart 

showed Rochelle a photographic lineup and she unequivocally picked Cooksey out of the 

lineup as the man who assaulted her and Leonard. 

 Doiron testified she worked at Don Pedro Market and knew Cooksey because he 

was a customer there. On the day of the incident in the market’s parking lot, she heard 

arguing outside and went to check. Upon seeing Cooksey and Leonard arguing, she 

 

4 Although all the car’s occupants got out of the car and were “standing there,” only 

Cooksey and Bailey participated in the assault. 
5 

yelled out to Cooksey, “Fuck no, Jake. I don’t want any of your shit here. Go inside, get 

your beer, and go.” A few more words may have been exchanged before Cooksey 

walked into the market and Leonard got into his truck. Doiron apologized to the 

Deutsches and they left. Cooksey was in the store a short while before his group drove 

off.5 

 That evening Rochelle returned to the market. She was a mess and seemed very 

agitated when she asked Doiron if she had a minute. Doiron asked if something was 

wrong and if she was okay. Rochelle said no and was about to cry when Doiron said, 

“They followed you.” Rochelle replied affirmatively. 

 The following day a deputy showed Doiron a photo lineup and she identified 

Cooksey as the man she saw arguing with Leonard in the parking lot. 

 Leonard testified he and Rochelle were driving to Don Pedro Lake to go fishing 

when a gray car that was honking and driving crazy passed them near the intersection of 

Merced Falls Road where there is a double yellow line painted on the highway. Leonard 

followed the car less than a quarter mile to Don Pedro Market and parked next to it. 

After they began arguing with a man and a woman from the car, a cashier came out and 

started yelling at the man and woman. Leonard then continued driving south on Highway 

132 and stopped at a turnout. Leonard did not recall anything that happened after he 

stopped there. 

 As a result of the assault Leonard suffered fractures around one eye, his sinuses 

were smashed, he suffered various cuts and abrasions, he received stitches over his right 

 

5 On redirect examination, Doiron testified that he might have been in there as long 

as seven minutes. Also, according to Doiron, Cooksey was in a light, possibly silver, 

four-door Chevy sedan. 
6 

eye and on his left lower jaw, and some of his teeth were broken.6 Leonard identified 

Cooksey in court as the man he argued with that day. 

 Deputy Stuart testified that on May 27, 2012, at 9:50 p.m. he was able to obtain a 

statement from Leonard at Sonora Regional Medical Center. Although he was having 

difficulty speaking, Leonard told him that when he drove into the turnout he saw the gray 

vehicle “from the market.” 

 On May 29, 2012, Deputy Stuart showed a photographic lineup to Rochelle and 

she positively identified Cooksey as the man who assaulted them. 

 Deputy Stuart spoke with Cooksey on June 3, 2012. Cooksey told the deputy he 

was with his cousin, Hailee Smith; his sister, Bailey; and Joseph Santana on the day he 

got in an argument at the market with some people in a white truck. According to 

Cooksey, after the clerk came out and yelled, he went in the store. After leaving the 

market, Cooksey’s group went to Cooksey’s residence in La Grange. Cooksey did not 

see the white truck again. 

 Deputy Stuart attempted to contact Bailey and Santana and left messages for them 

to call him back but neither of them ever did. He was, however, able to contact Smith. 

 During cross-examination, Deputy Stuart testified that Rochelle told him the car’s 

occupants were honking and yelling. She also told him that the turnout was a dirt turnout 

and that the other car was gray. 

The Defense 

 Bailey testified that in the early afternoon of May 27, 2012, she drove north on 

Highway 132 from Cooksey’s house on Jalapa Way to Don Pedro Market in a silver 

 

6 Leonard’s medical records apparently indicated he had a .163 blood alcohol 

content when he was treated for his injuries. 
7 

Ford.7 On the way, her car was behind a small white truck when it swerved off the road 

to the right. The truck then overcorrected, almost hit an R.V. going in the opposite 

direction, and drove into a dirt turnout on the left side of the road. Bailey heard the R.V. 

honk and she kept driving. After parking at the market, Bailey saw the white truck 

parked next to her. When she got out she heard a woman yelling and screaming at her 

and the man in the truck confronting Cooksey. The woman was yelling that she and the 

driver were locals and that Bailey’s group was not allowed to honk their horn at them. 

Bailey was certain the truck was the same one she had seen earlier and she denied 

honking her horn at the woman’s truck. According to Bailey, a woman from the market 

came out and told Bailey’s group they needed to go in the store to make their purchase 

and she told the people in the truck to leave. The truck left while Bailey was in the store 

with Santana and Cooksey buying drinks for their barbeque. After leaving the market, 

Bailey and her group drove south on Highway 132 back to Cooksey’s house. She did not 

stop anywhere between the market and Cooksey’s house. Although she saw other cars in 

the turnouts she passed, she did not see the white truck. Bailey did not hear the woman 

from the store apologizing to the people in the truck or making any statements to 

Cooksey. Bailey also testified that she called Deputy Stuart back, once leaving a voice 

mail, but she was not able to get a hold of him. 

 Santana testified he went with Bailey, Smith, and Cooksey from Cooksey’s house 

to Don Pedro Market. On the way an R.V. honked at a white truck that veered off the 

road, came back on it, and cut off the R.V. After they pulled into the store parking lot, 

some people in the truck began causing trouble. Doiron “kicked them out” and told 

Santana and his group to go in the store and get what they needed. Afterwards, Santana’s 

 

7 Cooksey’s house was located off of Highway 132 south of Don Pedro Market in 

La Grange. 
8 

group got on Highway 132 and went back to Cooksey’s house. They did not stop and 

Santana did not see the white truck on the way. Santana denied that Doiron made any 

statement to Cooksey or yelled at him. He also initially testified that although he never 

spoke with Deputy Stuart he called him and left a message a few times. Later in his 

testimony he claimed he actually spoke with the deputy, that Stuart only asked a couple 

of questions, and all he wanted to know was whom Santana had been with. 

 Smith testified she rode in the front passenger’s seat when they went to the 

market. On the way a white pickup swerved, overcorrected, and almost hit an R.V. At 

the market, before anyone got out of the car she was in, a woman got out of a small white 

pickup and was yelling that Cooksey’s group could not honk at them because they were 

locals. Doiron then walked out of the market and told the people in the truck that they 

needed to leave or else she would call the police. Smith did not go into the store. The 

group did not stop anywhere on the way back to Cooksey’s house and Smith did not 

recall seeing the white truck. During cross-examination, Smith admitted she did not 

mention anything about an R.V. when Deputy Stuart interviewed her. She also admitted 

she told Deputy Stuart she too had gone in the store. Smith denied that Doiron told 

Cooksey anything and she did not recall Doiron apologizing to the couple. 

Rebuttal 

 Deputy Stuart testified in rebuttal that during his interviews of Smith and Cooksey 

a few weeks after the incident at the market, neither of them mentioned anything about an 

R.V. Deputy Stuart also testified that Santana never spoke with him, that he checks his 

voice mail almost every day, and that he never received a voice mail from anyone, 

including Bailey, regarding the case. 
9 

DISCUSSION 

Introduction 

 Cooksey contends he was denied the effective assistance of counsel by defense 

counsel’s failure to object to the following statements which he claims were inadmissible 

hearsay and character evidence: 1) Rochelle’s testimony that while she and Leonard 

were arguing with Cooksey and his sister in the market parking lot, Doiron came out of 

the market and stated, “God damn it, Jacob, don’t start this shit again or I’m calling the 

f-ing cops[]”; 2) Doiron’s testimony that she came out of the market and stated, “Fuck 

no, Jake. I don’t want any of your shit here. Go inside, get your beer, and go[;]” and 

3) Doiron’s testimony that when Rochelle returned to the market after the assault, Doiron 

stated, “They followed you.” Cooksey further contends he was denied the effective 

assistance of counsel by defense counsel’s failure to cross-examine Rochelle about her 

ability to perceive events the day the assaults occurred, and by her failure to object to 

improper comments by the prosecutor during closing arguments. 

 According to Cooksey, these instances of defense counsel’s failure to object were 

prejudicial because the prosecution case was weak in forensic evidence, investigation, 

and credible witnesses, and during closing arguments the prosecutor exploited these 

inadmissible statements when she argued: 

“... and she testified that she apologized to the couple for [Cooksey]. [¶] 

Why would she be apologizing for him? Makes you wonder if she’s had 

other incidents with him, right? Because why would she be apologizing for 

his actions? [¶] ... [¶] Miss Doiron looks at [Rochelle] and says, ‘They 

followed you.’ [¶] Miss Doiron knows it right from the get go. She knows 

exactly what happened. Her very first inclination is that they followed 

them and did this. Why would she say that unless the defendant is capable 

of this behavior? That came out of the -- the first thing out of her mouth is, 

‘They followed you, didn’t they?’ Why would she say that?” 

 “We have previously explained that, ‘[i]n order to demonstrate ineffective 

assistance of counsel, a defendant must first show counsel’s performance was “deficient” 
10 

because his “representation fell below an objective standard of reasonableness ... under 

prevailing professional norms.” [Citations.] Second, he must also show prejudice 

flowing from counsel’s performance or lack thereof. [Citations.] Prejudice 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.” [Citations.]’” (In re 

Avena (1996) 12 Cal.4th 694, 721.) 

 “[However,] a court need not determine whether counsel’s performance was 

deficient before examining the prejudice suffered by the defendant as a result of the 

alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground 

of lack of sufficient prejudice, which we expect will often be so, that course should be 

followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697.) 

The Failure to Object to Certain Evidence and a Portion of the Prosecutor’s Closing 

Argument 

 Evidence Code section 1200 provides: 

 “(a) ‘Hearsay evidence’ is evidence of a statement that was made 

other than by a witness while testifying at the hearing and that is offered to 

prove the truth of the matter stated. 

 “(b) Except as provided by law, hearsay evidence is inadmissible.” 

 Evidence Code section 1101 provides: 

“(a) Except as provided in this section and in Sections 1102, 1103, 

1108, and 1109, evidence of a person’s character or a trait of his or her 

character (whether in the form of an opinion, evidence of reputation, or 

evidence of specific instances of his or her conduct) is inadmissible when 

offered to prove his or her conduct on a specified occasion. 

 “(b) Nothing in this section prohibits the admission of evidence that 

a person committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake or accident, ...) other than his or 

her disposition to commit such an act. 
11 

 “(c) Nothing in this section affects the admissibility of evidence 

offered to support or attack the credibility of a witness.”

 Rochelle and Doiron both testified that Doiron essentially told Cooksey in the 

parking lot to get his beer and leave, whereas the defense witnesses claimed that Doiron 

told the Deutsches to leave. Therefore, Rochelle’s testimony that Doiron told Cooksey 

not to “start this [] again” was admissible to impeach the defense witnesses, 

notwithstanding that it contained hearsay or character evidence and may have been 

otherwise inadmissible. In any event, when Doiron allegedly made this statement, 

Cooksey and his sister were arguing with Rochelle and Leonard in the market parking lot. 

Given the context in which it was uttered, the prejudice to Cooksey from this statement 

was minimal because, at most, it implicated Cooksey only in a prior argument with 

someone in the market parking lot. 

 Doiron’s testimony that she told Cooksey she did not want “any of [his] shit here” 

even assuming it was a different statement than the one attributed to her by Rochelle and 

that it was character evidence, was also admissible to impeach the defense witnesses’ 

claim that Doiron ran the Deutsches out of the parking lot and did not yell at Cooksey. 

Further, the prejudicial impact of this second statement was even less than that of the first 

statement because it referred to Cooksey’s conduct at the time, did not suggest prior 

similar conduct by him, and the only matter it asserted for its truth was Doiron’s state of 

mind, i.e., that she did not want him to act the way he was acting at the time. 

 Further, Doiron’s testimony that she told Rochelle, “They followed you,” occurred 

after Rochelle had already testified that upon returning to the market she told Doiron her 

husband had been attacked by “that f-ing prick from the parking lot.” Thus, it should 

have been clear to the jury from the context of Doiron’s statement that it was not based 

on her personal knowledge and was merely a conclusion she reached based on Rochelle’s 

statements to her. Further, this statement by Doiron did not add anything to the 

prosecution case because if the jury believed Rochelle’s statement that her husband had 
12 

been attacked by the man in the parking lot, they would have had to conclude, as Doiron 

obviously did, that Cooksey and his group followed them. On the other hand, if they did 

not believe this statement by Rochelle, they would have to conclude that Doiron’s 

statement that Cooksey’s group followed the Deutsches was wrong because it obviously 

was a conclusion Doiron reached based on Rochelle’s statement. Thus, even assuming 

Doiron’s statement, “[t]hey followed you” was inadmissible hearsay or character 

evidence, its admission did not prejudice Cooksey. 

 The prosecutor’s comments during closing argument, however, are more 

problematic. “A prosecutor may fairly comment on and argue any reasonable inferences 

from the evidence. [Citation.]” (People v. Woods (2006) 146 Cal.App.4th 106, 112.) 

However, “[a] prosecutor may not suggest the existence of “‘“facts”’” outside of the 

record by arguing matters not in evidence. [Citation.]” (Id. at p. 113.) 

 Here, the prosecutor’s statement that Doiron’s statement “[m]akes you wonder if 

she’s had other incidents with him ...” suggests the existence of facts outside the record, 

i.e., that Doiron had experienced prior incidents where Cooksey had argued with market 

patrons. Further, the prosecutor’s statement that Doiron knew exactly what happened and 

her rhetorical question, “Why would she say [‘they followed you’] unless the defendant is 

capable of this behavior” suggested Doiron knew, based on facts outside the record, that 

Cooksey was capable of committing a brutal assault. The defense forfeited any issue of 

prosecutorial misconduct with respect to these portions of the prosecutor’s closing 

argument by defense counsel’s failure to object, move to strike the statement, and seek a 

curative admonishment. (People v. Tully (2012) 54 Cal.4th 952, 1010.) Nevertheless, we 

must examine whether there is any prejudice inherent in these statements in order to 

resolve Cooksey’s ineffective assistance of counsel claim. 

 It was undisputed at trial that within minutes after Cooksey and his sister were 

involved in a heated argument with the Deutsches, the couple stopped at a turnout and a 
13 

man brutally attacked Leonard with a tire iron and that Rochelle was punched by the 

same man and a woman. Further, the encounter at the market and the assault occurred in 

the daytime and both incidents lasted long enough for Rochelle to get a good look at 

Cooksey at the market and at the man who attacked them at the turnout. Within hours of 

the assault Rochelle returned to the market and unequivocally identified the man whom 

the Deutsches argued with at the market as the man who assaulted her and Leonard. Two 

days later she positively identified Cooksey as the man who assaulted her and Leonard 

when she picked his photo out of a photo lineup and she repeated her identification at 

trial. Additionally, Leonard told Deputy Stuart that after leaving the market he saw the 

car Cooksey was in stop at the turnout where he and Rochelle stopped. 

 Moreover, Doiron was a neutral witness and she corroborated Rochelle’s 

testimony that at the market Doiron yelled at Cooksey and apologized to the Deutsches 

for Cooksey’s behavior. By doing so, she also contradicted claims by defense witnesses 

that she ran the Deutsches out of the parking lot, did not apologize to them, and did not 

yell anything at Cooksey. 

 Further, two defense witnesses testified that the Deutsches complained to Cooksey 

about his group honking at them. Under the defense version of events, there was no 

reason for the Deutsches to argue with Cooksey and Bailey about being honked at. Thus, 

this testimony bolstered the prosecution’s case because it corroborated a key detail of the 

Deutsches’ version of events, i.e., that while traveling south on Highway 132 they 

followed Cooksey’s group to the market because Cooksey’s group had flashed their lights 

and honked at the Deutsches as they passed them in an unsafe manner. It also 

undermined the credibility of the defense witnesses because they claimed that the 

encounter occurred on Highway 132 south of the market and that Bailey did not honk at 

the Deutsches. 
14 

 It was also undisputed that the Deutsches were assaulted at a turnout just south of 

Don Pedro Market. And several defense witnesses testified that the Deutsches’ truck was 

the same white truck they saw ahead of them veer off the road, overcorrect, and almost 

crash head-on with an R.V. Given the recency and emotional impact of the white truck 

almost hitting an R.V. head-on and the alleged involvement of that truck’s occupants in a 

heated argument with Cooksey and Bailey, the claim by several defense witnesses that 

none of them saw the Deutsches’ white pickup truck stopped at the first turnout south of 

the market was simply incredible. 

 Additionally, Santana changed his testimony on the stand. First, he testified that 

he returned Deputy Stuart’s calls but was not able to get a hold of him. Then, he testified 

that he called the deputy and spoke to him once. However, Santana’s testimony was 

contradicted by Deputy Stuart’s testimony that Santana never returned his calls. It was 

also dubious because Santana claimed that when he spoke with Deputy Stuart all the 

deputy wanted to know was who he was with the day of the assault. However, it is 

inherently improbable that a deputy investigating a serious crime, as occurred here, 

would ask a potentially crucial witness only whom he was with around the time the crime 

occurred. 

 Finally, we note that Deputy Stuart contradicted Bailey’s testimony that she called 

him back and left a voice mail message and that the defense version of events was further 

undermined by the failure of Cooksey and Smith to mention anything about an R.V. 

when they were interviewed by Deputy Stuart. In sum, the prosecution’s evidence 

established that Cooksey had a motive for the assault and that the assault occurred shortly 

after the event giving rise to the motive. It also included strong identification evidence 

by a victim/witness whose testimony was corroborated in significant part by a neutral 

witness and the undisputed fact that the argument at the market included complaints 

about Cooksey’s group honking at the Deutsches. In contrast, the defense version was 
15 

fraught with the numerous problems discussed above. Thus, we conclude it is not 

reasonably probable Cooksey would have received a more favorable outcome even if 

defense counsel had objected to the challenged statements and improper remarks by the 

prosecutor and the court had excluded them. 

The Failure to Cross-Examine Rochelle About Her Ability to Perceive Events 

Cooksey contends his defense counsel provided ineffective representation by her 

failure to cross-examine Rochelle regarding her “ability to perceive events” the day she 

and Leonard were assaulted. We disagree. 

“‘As to whether certain witnesses should have been more rigorously crossexamined, such matters are normally left to counsel’s discretion and rarely implicate 

inadequacy of representation. [Citations.] Defendant identifies no exculpatory or 

impeachment evidence that counsel could have revealed by further questioning of 

prosecution witnesses [or examination of defense experts] and that would have produced 

a more favorable result at trial. [¶] ... Such claims must be supported by declarations or 

other proffered testimony establishing both the substance of the omitted evidence and its 

likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged 

deficiencies in counsel’s representation solely on defendant’s unsubstantiated 

speculation.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 334, italics added.)

 Cooksey appears to contend that certain circumstances suggested that the day 

Rochelle and Leonard were assaulted, Rochelle was under the influence of alcohol to the 

extent it affected her “ability to perceive events.”8 He further appears to contend that this 

should have prompted defense counsel to cross-examine her in that regard and that he 

was denied the effective assistance of counsel by his counsel’s failure to do so. However, 

 

8 For example, he suggests that Rochelle’s conduct in allowing Leonard to drive 

even though he had apparently been drinking and had a high blood alcohol content may 

indicate that she did not drive because she was more intoxicated than he was. 
16 

it was undisputed that the encounters in the parking lot and at the turnout occurred during 

daylight hours and that each one lasted long enough for Rochelle to get a good look at 

Cooksey and at the man who assaulted her and Leonard. Further, even though Rochelle 

was not previously acquainted with Cooksey, within hours she was able to identify “the 

... prick from the parking lot” (Cooksey) as their assailant and two days later she 

unequivocally picked Cooksey’s photo out of a photo lineup. Given these circumstances, 

even if defense counsel had established through cross-examination that Rochelle 

consumed alcohol prior to being assaulted, it is doubtful counsel could also have 

established that it adversely affected Rochelle’s ability to perceive or remember who 

assaulted her and Leonard. 

 Accordingly, we conclude that Cooksey has failed to show that his defense 

counsel’s performance was deficient because she failed to cross-examine Rochelle 

regarding her alcohol consumption and how it might have affected her ability to perceive 

and remember. Alternatively, we conclude that Cooksey was not prejudiced by defense 

counsel’s failure to cross-examine Rochelle in this regard because, as discussed earlier, 

the prosecution presented a strong case and the defense case was undermined by the 

numerous problems discussed earlier. Moreover, we further conclude that even if the 

errors complained of are considered cumulatively, they did not prejudice Cooksey. It 

follows that Cooksey was not denied the effective assistance of counsel. 

DISPOSITION 

 The judgment is affirmed.