Filed 5/11/23 P. v. Venancio CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO VENANCIO, JR.,

Defendant and Appellant.

 B320236

 (Los Angeles County

 Super. Ct. No. SA101022)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed.

Randy S. Kravis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Kenneth C. Byrne and Blake Armstrong, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

Fernando Venancio, Jr., appeals from a judgment of 

conviction after the jury found him guilty of the forcible rapes of 

Evelyn S., Tracy D., and Lisa M.; the assault of Gabriela S. with 

intent to commit rape; sexual penetration by use of force as to 

Evelyn; and petty theft as to Lisa and Gabriela. The jury also 

found true Venancio used a handgun in the commission of the 

rapes of Tracy and Lisa and the assault of Gabriela.

On appeal, Venancio contends the trial court violated his 

constitutional and statutory rights by conducting most of the trial 

in his absence after the court found he waived his right to attend 

trial by spreading feces on his body and the courthouse holding 

cell on three occasions (including after the court’s admonishment) 

and by resisting efforts to prepare him to appear in the 

courtroom. Venancio also contends his trial attorney provided 

ineffective assistance of counsel by failing to object to hearsay

statements the victims made to sexual assault response team 

nurses. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

1. Evelyn—June 15-16, 2019

Evelyn testified that on the evening of June 15, 2019

Venancio responded to her online advertisement for escort 

services.1 She agreed to meet him for $600 for one hour, and she 

drove to a location on 18th Street in Santa Monica. When she 

1 Evelyn identified the man she met in response to the 

advertisement as Venancio after being shown a six-pack 

photographic lineup. Tracy, Lisa, and Gabriela also identified 

Venancio from six-pack photographic lineups. 
3

arrived, Evelyn followed Venancio through a gate to an 

abandoned apartment with a mattress on the floor. When Evelyn 

told Venancio he needed to pay in advance for sexual services, 

Venancio said he did not have the money but would give her 

bottles of wine in lieu of payment. Evelyn refused and tried to 

leave, but Venancio blocked her path. When she tried to push 

him out of the way, he grabbed her throat and pulled her down to 

the floor. Keeping one hand on her throat and squeezing when 

she resisted, Venancio removed her clothing. Venancio got on top 

of her and partially penetrated her vagina with his penis while 

covering her mouth and nose. He tried to give her drugs, but she 

refused. Venancio then digitally penetrated her vagina with two 

of his fingers. Venancio continued to grab Evelyn by the throat

and at times choke her, making it difficult to breathe, and he 

partially, then fully penetrated her vagina and engaged in 

intercourse. When Venancio got up, Evelyn pushed him hard and 

ran out of the apartment naked, screaming for help as she ran 

into the street. 

Catherine Hedden testified she was awoken by Evelyn’s 

screams for help and went onto the balcony of the rental property 

where she was staying. Evelyn was screaming, “‘Help me. Help 

me. Somebody help me. He’s trying to kill me.’” Evelyn was 

visibly scared and shaking. Hedden dropped a t-shirt down to 

Evelyn and went downstairs. A bystander, Carol Martinez, 

called 911. She told the dispatcher Evelyn said a man was raping 

her and had choked her. Evelyn then came on the line and told 

the dispatcher she had been working at a strip club and met a 
4

man who was going to help her out with money, but he took her 

to an abandoned house and raped her.2

At 4:17 a.m. on June 16 Santa Monica Police Officer Evan 

Raleigh received a call from dispatch to respond to the scene. 

When he arrived, Evelyn was in the street in an oversized t-shirt 

and socks, and she was “shaken up” and crying. Evelyn provided 

a physical description of her assailant and told Officer Raleigh 

she had agreed to model for Venancio and possibly engage in 

sexual relations for a fee, but he attacked and raped her. Raleigh 

and other police officers searched for Venancio but did not find 

him. 

Officer Raleigh brought Evelyn to the UCLA Santa Monica 

Rape Treatment Center (rape treatment center), where she was 

examined by Page Courtemanche, a sexual assault response team 

(SART) nurse. According to Courtemanche’s report,3 Evelyn told

Courtemanche she met Venancio at a strip club and agreed to 

dance for him for $600, but after bringing her back to his 

residence, he held her down, choked her, and raped her. He also 

forced her to ingest methamphetamine. Evelyn reported 

Venancio threatened her, saying, “‘[I]f you’re good, it’s not gonna 

be as bad,’” “‘I don’t wanna slap you. You need to settle down,’” 

“‘I’m a professional,’” and “‘Give me head.’” 

During her physical examination of Evelyn, Courtemanche 

found abrasions on Evelyn’s neck and elbow. Courtemanche took 

2 A recording of the 911 call was played for the jury. 

3 Elizabeth Tighe, a nurse practitioner and supervisor at the 

rape treatment center, testified regarding Courtemanche’s 

examination of Evelyn and report. Tighe also testified about 

other SART nurses’ examinations of Tracy and Gabriela, as well 

as Venancio (after he was apprehended). 
5

swabs from various places on Evelyn’s body. Jessica Luna, a 

senior criminalist at the Los Angeles County Sheriff’s 

Department crime lab, testified that analysis of the swabs 

showed the presence of sperm cells and Venancio’s DNA on 

Evelyn’s breast, hand, chin, and genitals. 

2. Tracy—July 10, 2019

In July 2019 Tracy was unhoused and living in a van 

parked in Santa Monica. She testified that around 11:00 p.m. on 

July 10 she rode her bike to a gas station to buy cigarettes. After 

she bought the cigarettes, Venancio came up to her and offered to 

give her money for sexual acts, but she declined. However, she 

agreed to trade her cigarettes for a small amount of crystal 

methamphetamine. Tracy followed Venancio to a parking lot to 

complete the transaction. 

When they arrived at the parking lot, Venancio reached 

into his backpack and pulled out a handgun. He pointed the gun 

at Tracy’s head while wrapping his other arm around her throat, 

and she was “scared to death.” With his arm still around her 

neck, Venancio took Tracy toward the dumpsters in the back of 

the parking lot. He said he would not hurt her but was going to 

“‘fuck the shit’” out of her, and he was “‘doing God’s work’” by 

“‘teaching you girls not to trust men out here because next time 

you might not be so lucky.’” 

Venancio, while still holding the gun, ordered Tracy to 

undress and lie down on the ground. He climbed on top of her 

and penetrated her vagina with his penis, and they had 

intercourse for 10 to 15 minutes. He did not wear a condom, but 

he removed his penis before ejaculating. After he finished, he 

allowed Tracy to dress and leave. 
6

Tracy told her boyfriend about the rape but initially did not 

report it because she felt humiliated. She reported it on July 13 

after seeing an article in the newspaper. The police took her to 

the rape treatment center, where she was examined by SART 

nurse Kari Herrington. Because Tracy had wiped her vaginal 

and anal area after the intercourse and had been menstruating, 

the potential for recovery of forensic evidence was limited. DNA 

testing of swabs from Tracy’s body did not match Venancio’s 

DNA. 

 

3. Lisa—July 12, 2019

Lisa testified that at around 9:30 p.m. on July 12, 2019 she 

was outside a supermarket on Broadway in Santa Monica on the

phone with her friend Bernard, who was threatening to throw out 

the belongings she kept at his residence. She was carrying a bag 

with some clothes, a tablet computer, a cell phone charging cord,

and food. Venancio approached her and asked if she was okay. 

They talked, and Venancio seemed “really nice” and offered to 

drive her to Bernard’s apartment to retrieve her belongings. 

Venancio said they needed to walk to a nearby location to get his

car keys. He was persistent, and Lisa reluctantly went with him. 

When they arrived at the location, Lisa followed Venancio up a 

staircase into a small room with a couch and boxes. He briefly 

went into another room, and when he returned, he appeared

“agitated” and “hyper”; she believed he was high on drugs 

because he was sniffing something with a straw. 

Venancio pulled a handgun out of his bag and said, “‘I’m 

not gonna kill you. But I’m gonna make your night . . . a living 

hell.’” He spat on Lisa’s face and punched her in the eye. He 

ripped off her clothing while she tried to fight him off, and he 
7

pinned her to the couch as he penetrated her vagina with his 

penis for approximately 10 minutes without a condom. As they 

had intercourse, Lisa could see his gun that was sitting next to 

the couch, and she was so scared she defecated. Venancio 

abruptly stopped. He then gathered his belongings, took Lisa’s 

tablet and the food from her bag, and left. 

Lisa did not initially report the rape to the police because 

she was embarrassed, but a few days later a community center 

case manager referred her to the Venice Family Clinic to treat

her injuries. On July 18 nurse Nancy Pierre-Paul examined Lisa. 

Pierre-Paul testified that Lisa had a swollen black eye and 

bruising on her chest. Pierre-Paul filed a “suspicious injury 

report,” and Lisa was brought to the rape treatment center. 

Lisa’s belongings from July 12 were tested, and Venancio’s DNA 

was found on Lisa’s hoodie, tank top, bag, and water bottle, and 

on the couch in the room where the incident occurred. 

4. Gabriela—July 22, 2019

Gabriela testified that on the afternoon of July 22, 2019 a 

man responded to her online advertisement for escort services.

They agreed to $400 for one hour of sexual intercourse. He told 

her to meet him at the 18th Street location in Santa Monica. 

When she arrived, Venancio gave her a small hug and led her 

into “an old garage shack kind of thing.” Gabriela sat down on a 

mat with pillows and asked for the money. Venancio said “‘yeah’” 

and went behind a partition. 

Venancio returned, holding a handgun and a knife. 

Gabriela told him she was leaving, but Venancio said, “‘No. I’m 

gonna fuck you. I’m not done with you yet.’” He placed the knife 

against her neck and the gun to her chest. Gabriela managed to 
8

push the emergency button on her phone while it was in her 

pocket. Venancio then covered her mouth with his arm, making

it hard for her to breathe, and he punched the side of her face 

with the gun and slapped her. He climbed on top of her, and she 

tried to fight him off with her nails and a wine opener. 

Venancio then realized she had called the police on her 

phone, and he ran off with her phone and his gun and knife. 

Gabriela ran after him to try to get her phone back, but she could 

not catch him. She called 911 from a bystander’s phone, and the 

police arrived shortly thereafter to take her statement. Later 

that day Santa Monica Police Detective Brian Spencer detained 

Venancio a few blocks away based on Gabriela’s description. No 

weapons were found on Venancio.4

Gabriela was examined by nurse Cindy Swintelski at the 

rape treatment center approximately four hours after the 

incident. Swintelski prepared a SART report based on her 

examination. Tighe testified based on the SART report that 

Gabriela told Swintelski that Venancio first offered her wine and 

water and massaged her body with oil but then forced his fingers 

inside her vagina, “‘tapped’” his penis against her buttocks, and 

placed his mouth on her vagina, at which point Gabriela asked 

for her money. Venancio brought out a gun and a hammer. 

Gabriela told Swintelski that Venancio saw her press the 

emergency button on her phone and then grabbed the phone; he

struck her face and choked her; and they struggled as she tried to 

4 Detective Spencer brought Venancio to the rape treatment 

center where he was examined by nurse Lizette Castro early on

the morning of July 23. Venancio consented to an examination,

and samples were taken from his body. Castro noted an abrasion 

on his torso and lacerations on the side of his chest. 
9

get away. Gabriela reported that Venancio threatened her, 

saying: “‘You aren’t leaving until I come’”; “‘I’m trying to teach 

you a lesson’”; “‘This isn’t my first rodeo’”; and “‘I teach girls 

lessons when they are on these sites.’” Swintelski observed

bruises on Gabriela’s leg, wrist, and forearm, and an injury to her 

fingernail. Samples collected from Gabriela’s body showed

Venancio’s DNA on her breasts, exterior genitals, and perianal 

region. 

Venancio did not call any witnesses or present evidence.

B. The Verdicts and Sentencing 

On February 23, 2022 the jury found Venancio guilty of the 

forcible rape of Evelyn, Lisa, and Tracy (counts 1, 3, 7; Pen. Code, 

§ 261, subd. (a)(2));

5 sexual penetration by use of force as to 

Evelyn (count 2; § 289, subd. (a)(1)(A)); and assault with the 

intent to commit rape as to Gabriela (count 5; § 220, subd. (a)(1)). 

The jury found Venancio not guilty of the second degree robberies

of Lisa and Gabriela but guilty of the lesser included offense of 

petty theft (counts 4, 6; § 484, subd. (a)). The jury also found true 

as to counts 3, 5, and 7 that Venancio personally used a firearm

(a handgun) in the commission of the rapes of Lisa and Tracy and 

the assault of Gabriela (§ 12022.5, subd. (a)). 

In a bifurcated proceeding, on February 23, 2022 the jury 

found true as to counts 3 and 7 for forcible rape the special 

allegations under section 667.61, subdivisions (a), (c), (e)(3), and 

(e)(4), that Venancio used a firearm in the commission of the 

rapes and Venancio committed the rapes against more than one 

victim. The jury also found true the sentencing factors that 

5 Further statutory references are to the Penal Code.
10

Venancio’s crime involved the threat of great bodily harm; the 

manner in which the crimes were carried out indicated planning 

or sophistication; and Venancio engaged in violent conduct that 

indicated a serious danger to society. 

On May 9, 2022 the trial court sentenced Venancio to an 

aggregate term of 96 years to life in state prison. The court 

imposed consecutive indeterminate terms of 15 years to life on 

counts 1 and 2 and 25 years to life on counts 3 and 7.

6 The court 

imposed a 16-year term on count 5 for assault with intent to 

commit rape comprised of the upper term of six years for offense,

plus the upper term of 10 years for the firearm-use enhancement. 

On counts 4 and 6 for petty theft, the court sentenced Venancio to 

concurrent six-month terms in county jail. 

Venancio timely appealed. 

6 The 25-years-to-life sentences on counts 3 and 7 were 

imposed pursuant to the jury’s fundings under section 667.61, 

subdivisions (a), (e)(3) and (e)(4). The jury did not make specific 

findings as to counts 1 and 2 (forcible rape and sexual 

penetration of Evelyn) under section 667.61, subdivisions (b) and 

(e)(4), to support the 15-years-to-life sentences, but the same jury 

finding that Venancio was convicted of rape and/or forcible sexual 

penetration against more than one victim would apply equally to 

counts 1 and 2. Venancio does not argue the lack of specific 

findings on these counts was error.
11

DISCUSSION

A. The Trial Court Did Not Violate Venancio’s Statutory and 

Constitutional Rights To Be Present at Trial 

1. Trial court proceedings

January 5, 2022: On the date set for trial, Venancio 

refused to leave his cell in county jail. The trial court issued an 

extraction order for January 11. 

January 11: Venancio did not leave the jail because he 

reported feeling ill. The trial court ordered a medical 

examination and an extraction on January 27. 

January 27: Venancio came to the court in a “suicide vest.” 

Defense counsel stated Venancio was noncommunicative and it 

had been several months since Venancio’s last psychiatric 

evaluation. 

January 28: Venancio missed the first bus from jail, and 

Deputy Campos, the courtroom deputy, relayed information from 

the jail that Venancio claimed to be hearing voices telling him not 

to come to court. Venancio later appeared in a suicide vest, and 

when the trial court asked if he would like different clothing, 

Venancio stated, “I don’t understand what’s going on. And this 

guy right here [referring to defense counsel], he’s not helping me. 

I don’t think he’s fair. I don’t know who he is.” Venancio refused 

to respond to questions from the court or Deputy Campos. The 

court appointed psychiatrist Dr. Kory Knapke, who had 

previously examined Venancio, to examine him. 

January 31: Dr. Knapke met with Venancio in an 

interview room next to the holding cell in the courthouse 

(adjacent to the courtroom). Dr. Knapke reported to the trial 

court: “Mr. Venancio entered the interview room and he had no 
12

eye contact with me whatsoever, which is a big red flag . . . in 

terms of the potential of malingering. And he then turned 

around, and it looked like he was grabbing for something and he 

was. He was putting feces all over his face, started eating his 

feces, and then he started smearing feces all over the interview 

room.” Venancio told Dr. Knapke, “‘The demons are bothering 

me. Everyone’s against me.’” Otherwise, Venancio was 

“selectively mute,” refusing to answer Dr. Knapke’s questions

about courtroom proceedings and “only wanting to make a 

comment about his alleged psychotic symptoms, which are all 

very new symptoms based upon the jail mental health records 

that I reviewed.” Dr. Knapke opined, “[C]learly the defendant is 

malingering. His symptoms are very contrived and exaggerated, 

and I strongly believe that he’s competent to stand trial.” The 

court ordered Venancio to be transported to court the following 

day in a safety chair “where he’s strapped down and he cannot 

have the use of his hands to do what he did [before] tomorrow in 

the courtroom.” 

February 1: The trial court ruled Venancio was competent 

to stand trial based on Dr. Knapke’s oral and written report. 

Venancio appeared in the courtroom strapped into a safety chair, 

unable to move his arms. The court admonished Venancio that 

his conduct the previous day in spreading feces all over himself 

“will not be tolerated during the trial.” The court explained to

Venancio his options: He could assure the court he would not 

spread feces again and wanted to remain in the courtroom, or he 

could voluntarily absent himself and listen to the trial from a 

nearby conference room with access to his attorney. 

Alternatively, he could be restrained to prevent the same 

behavior (for example, in the safety chair), but appearing in 
13

restraints could prejudice his case. The court advised Venancio 

that if he did not say what he wanted to do, the court was “going 

to assume that [he was] going to be disruptive.” 

The trial court told Venancio they were about to start jury 

selection and the jurors were in the hallway. The court asked 

Venancio to respond “yes” or “no” as to whether he wanted to be 

present in the courtroom during trial. Venancio did not respond. 

The court gave Venancio an opportunity to talk to his attorney 

about his options. Defense counsel talked to Venancio but then 

informed the court he “got no response” to the court’s questions. 

The court addressed Venancio in making its findings: “You are 

competent and that you are malingering and that you did what 

you did yesterday because you knew this trial was starting

. . . . And so you are trying to disrupt these proceedings.” The 

court found further Venancio intentionally did not respond to the 

court’s questions, affirming he did not wish to be present. 

The trial court decided, however, that Venancio should be 

present for the swearing in of the jury so he would appreciate 

that the trial was commencing. The court, counsel, Deputy 

Campos, and Los Angeles County Sheriff’s Sergeant Davis-Linton 

(assigned to the courthouse) discussed options for restraining 

Venancio. Defense counsel did not want Venancio to appear in 

handcuffs and suggested a waist chain that would not be visible 

to jurors. But Deputy Campos noted a waist chain allowed 

Venancio access to his buttocks, and he had been wearing a chain 

when he spread his feces the previous day. Defense counsel 

requested the sheriff’s deputies dress Venancio in civilian 

clothing, but Venancio was uncooperative and “went limp” when 

deputies tried to lift his arm to change his shirt. Deputy Campos 

and defense counsel agreed it would be acceptable if Venancio 
14

remained in jail clothes and wore the waist chain. However, after 

a recess, Deputy Campos reported Venancio went limp when 

deputies attempted to remove him from the safety chair to place 

him in a waist chain. 

Defense counsel conceded the attempts to prepare Venancio 

for the courtroom were “fruitless” and stated, “It doesn’t make 

sense to me if he’s just not cooperating at all why we should make 

any additional efforts.” Ultimately, Venancio was brought into 

the courtroom in the safety chair while the trial court questioned 

jurors about potential hardships. After dismissing the hardship 

jurors, the court stated for the record, “Mr. Venancio is still in the 

chair, was facing all of the jurors, was present during this 

hearing. The court makes a finding that he understands that 

this trial is commenced and that we are engaged in the voir dire 

process.” The court asked Venancio whether he wanted to be 

present in court for the afternoon session; Venancio did not 

respond. The court again advised Venancio of his right to be 

present and asked him what he wanted to do. Venancio still did 

not respond. At the end of the day the court advised the 

attorneys that it did not believe Venancio’s refusal to respond to 

questions constituted a waiver of his right to appear, and it 

ordered that Venancio be extracted from his cell the following day 

and restrained with a waist chain, which defense counsel could 

conceal with a coat. 

February 2: Venancio was mistakenly transported to court 

in the safety chair rather than a waist chain. Deputies 

attempted to remove him from the safety chair and dress him in 

civilian clothes, but he gripped the arms of the chair and would 

not allow the deputies to lift him up. The trial court advised 

Venancio that they were trying to remove him from the chair so 
15

the jury would not see him restrained because that would be 

“very, very prejudicial” to him. The court asked defense counsel 

whether Venancio could remain in the safety chair as a “last 

resort.” Defense counsel responded, “I think he’s better off not 

being here at all, just for the record. This is a sort of chair—it’s 

like death chamber. It’s got a ton of straps. It’s very prejudicial.

It’s going to give the impression that [Venancio] is dangerous. 

He’s never done anything violent. He’s never acted out in court.” 

Deputy Campos released Venancio’s arm from the chair so 

another attempt could be made to move him, but Venancio would 

not lift up his arm and tensed up when Campos tried again to lift 

it. 

The trial court found by clear and convincing evidence that 

Venancio’s refusal to get out of the chair demonstrated a refusal 

to appear in court, explaining, “[B]y virtue of your body language 

and your holding on that chair, I am making the finding that you 

are uncooperative. You are refusing to be in the courtroom 

appropriately and engage in appropriate, conforming behavior in 

the court.” The court informed Venancio the trial would proceed 

without him but that he would be ordered back the following day, 

and he could change his mind and attend the trial if he would 

conform his behavior. The court advised counsel: “I want this [to 

be] very clear on the record—that [Venancio] is listening to 

everything. He understands everything. He’s competent to start 

this trial. He’s malingering. And he is purposefully not 

answering the court’s questions. And that is my finding by clear 

and convincing evidence considering Dr. Knapke’s report and 

everything else . . . . He’s being resistive because we can’t get 

him out of the stretcher chair or the safety chair to put him into 

the chair for trial. He needs to be in that chair for trial because 
16

I’m not going to have him—and counsel doesn’t want him—I’m 

not going to have him in horrible restraints like this in front of 

the jury.” 

The trial court ordered that Venancio be placed in a room 

that afternoon to listen to jury selection on a speaker. The court 

advised the jury, “Mr. Venancio is not present with us today. Do 

not consider that for any reason.” However, at some point during 

the afternoon session, Venancio was taken back to jail because he 

urinated on himself while in the safety chair.7 The court and 

attorneys conferred about how to proceed, and the prosecutor 

expressed concern there was “not sufficient clarity” to establish 

Venancio was voluntarily absenting himself from trial. The court 

found Venancio should not have been delivered in a safety chair, 

and it ordered that Venancio not be placed in a safety chair the 

following day. 

February 3: Venancio came to the courthouse in a waist 

chain. However, Sergeant Davis-Linton advised the court that 

while Venancio was waiting in a holding cell in the courthouse, 

he slipped off his waist chain, defecated, and smeared the feces 

all over the cell and himself. Venancio also claimed demons were 

talking to him. Sergeant Davis-Linton spoke to the sergeant at 

the county jail, who reported that Venancio had been cooperative 

and communicative while at the jail, including that morning. 

The trial court agreed with Sergeant Davis-Linton that 

Venancio’s actions appeared to be calculated. The court 

7 During the morning hearing, while Venancio was present, 

Sergeant Davis-Linton had expressed his concern that Venancio

would not ask deputies for bathroom breaks while in the lockup 

room, and as a result, “he’s almost guaranteed to urinate in his 

chair.” 
17

requested that Venancio be cleaned up in the courthouse holding 

cell and read an advisement about his right to be present,8 but 

the bailiff responsible for Venancio reported there was no way to 

sufficiently clean Venancio because there was no shower in the 

courthouse and paper towels were inadequate to remove the feces 

he had smeared all over his body. The court ruled, “I am deeming 

that he is refusing to come to court today. I find by clear and 

convincing evidence that his conduct is a refusal of coming to 

court. It’s clear that by slipping the waist chains, by defecating 

again, by smearing it all over, that he is refusing to attend his 

trial.” The court added that it would order Venancio extracted 

every day of the trial “just in case he changes his mind.” 

During the afternoon session, the trial court found, “It is 

clear to me, again, that Dr. [Knapke’s] opinion as to the 

defendant’s competency has been reinforced by virtue of the 

information that we now have; that when he is at the jail near his 

cell at county and he’s talked to, he completely responds. He has 

no problem at the jail. But as soon as he is transported to his 

trial location, that’s when he . . . presents as somebody who is 

hearing demons, and it is clear that he is malingering to this 

court.” The court continued, “He is disruptive. He is causing 

problems. He is trying to muck up our proceedings. And the 

court finds by clear and convincing evidence that he is 

voluntarily, by his behavior, absenting himself from this trial and 

that he is disruptive and nonconforming, and that this is the 

reason we’re going ahead without him.” The court resumed jury 

selection in Venancio’s absence.

8 The court ordered Sergeant Davis-Linton to advise 

Venancio daily of his right to appear and provide a recording to 

the court. 
18

February 7: Sergeant Davis-Linton informed the trial court 

that at the jail that morning, Venancio was “coherent and 

compliant and came to court. But immediately when he was put 

into a cell . . . . [h]ere at LAX court, he smeared feces 

everywhere—all over a huge cell.” The court found it was the 

third time that Venancio had smeared feces all over the holding 

cell and it was clear he was voluntarily absenting himself. The 

court asked if Venancio could be brought into the courtroom, but 

Sergeant Davis-Linton said it was not possible because Venancio 

had smeared feces “all over his face and hair” and possibly 

elsewhere on his body, and deputies would be unable to properly 

handle him. Sergeant Davis-Linton had opened the holding cell 

and asked Venancio if he wanted to appear, but Venancio was 

nonresponsive. The court found it was not necessary to bring 

Venancio into the courtroom: “He’s been advised over and over 

again about his right to attend . . . his trial. So that’s without 

question. He knows what’s going on . . . . And it is clear to me 

that his behavior is completely different when he’s at county jail 

versus when he gets here, and that’s when he starts acting up. 

So I am going to send him back to the jail. I’m going to make this 

finding throughout the trial that he does not want to be here. 

Every so often I will order him to the court. I don’t think I have 

to do it every day. But I will order him to be present every few 

days, and we’ll see if his behavior has changed.” The court 

instructed defense counsel to speak to Venancio at the jail. The 

court resumed jury selection in Venancio’s absence, instructing 

the jurors not to consider his absence for any purpose. 

February 8: After the conclusion of jury selection, Venancio 

was brought into the courtroom strapped to the safety chair 

outside the presence of the jury. Defense counsel informed the 
19

trial court that he went to the jail the previous day and waited to 

meet with Venancio, but Venancio was not brought out. Defense 

counsel did not know why. The court advised Venancio it had 

found he voluntarily absented himself and waived his right to be 

present by his behavior, but Venancio could be present if he 

changed his mind. The court continued, “But we will no longer be 

ordering you out every day because now you’ve done this on . . . 

three or four occasions. Today, you’re in the safety chair so you 

can’t do it again. . . . Do you want to conform your behavior and 

do you want to present at your trial? Do you want to be in the 

courtroom? Do you want to be in the lockup listening to your 

trial on the speaker?” Venancio did not respond. 

February 8 through February 22: Venancio was not present 

for any of the trial proceedings that began on the afternoon of 

February 8, continued on February 9, 10, 14, 15, 16, 17, and 22, 

and concluded with delivery of the verdict on February 23. As 

part of its preliminary jury instructions on February 8, the trial 

court advised the jury: “You are not to speculate as to why the 

defendant, Fernando Venancio, Jr., is not present during the 

trial. His absence is not evidence. You must not consider his 

absence in any way. You must not discuss his absence during 

your deliberations, and it must not affect your evaluation of this 

case or your decision in any way.” On February 16 the court 

ordered that Venancio be transferred to the courtroom in a safety 

chair. Outside the presence of the jury, the court asked Venancio 

if he wanted to attend the trial, and if he wished to testify. 

Venancio did not respond. 

May 9, 2022: Venancio was present and testified at his 

sentencing hearing. 
20

2. Governing law and standard of review

“‘“Broadly stated, a criminal defendant has a right to be 

personally present at certain pretrial proceedings and at trial 

under various provisions of law, including the confrontation 

clause of the Sixth Amendment to the United States 

Constitution, the due process clause of the Fourteenth 

Amendment to the United States Constitution, section 15 of 

article I of the California Constitution, and sections 977 and 

1043.”’” (People v. Sandoval (2015) 62 Cal.4th 394, 431; accord, 

Illinois v. Allen (1970) 397 U.S. 337, 338 [“One of the most basic 

of the rights guaranteed by the Confrontation Clause is the 

accused’s right to be present in the courtroom at every stage of 

his trial . . . .”]; People v. Ramirez (2022) 14 Cal.5th 176, 188 

(Ramirez) [“A criminal defendant’s right to be present at trial is 

protected under both the federal and state Constitutions.”].) 

However, a defendant’s constitutional right to be present 

“‘may be lost by consent or at times even by misconduct.’” (People 

v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez); see People 

v. Espinoza (2016) 1 Cal.5th 61, 72 [a defendant’s voluntary 

absence from trial “‘operates as a waiver of his right to be 

present,’” italics omitted]; People v. Concepcion (2008) 45 Cal.4th 

77, 82, fn. 7 [“the doctrine that a defendant impliedly waives the 

right of presence by voluntarily absenting himself from trial has 

been well established . . . for almost a century”].) “‘“In 

determining whether a defendant is absent voluntarily, a court 

must look at the ‘totality of the facts.’”’” (Ramirez, supra, 

14 Cal.5th at p. 192; accord, Gutierrez, at p. 1205.) Relevant facts

include whether the defendant was “‘“‘aware of the processes 

taking place,”’” he knew of “‘“his right and of his obligation to be 
21

present,”’” and he had “‘“no sound reason for remaining away.’”’’” 

(Ramirez, at p. 190; accord, Espinoza, at p. 74.)

“Sections 977 and 1043 implement the state constitutional 

protection.” (Gutierrez, supra, 29 Cal.4th at p. 1202.) 

Section 977, former subdivision (b)(1), in effect at the time of 

Venancio’s trial, provided, as relevant here, “[I]n all cases in 

which a felony is charged, the accused shall be personally present 

at the arraignment, at the time of plea, during the preliminary 

hearing, during those portions of the trial when evidence is taken 

before the trier of fact, and at the time of the imposition of 

sentence. The accused shall be personally present at all other 

proceedings unless they shall, with leave of court, execute in open 

court, a written waiver of their right to be personally present, as 

provided by paragraph (2).”9 (Stats. 2021, ch. 196, §1.) 

Section 1043, subdivision (a), similarly provides, “Except as 

otherwise provided in this section, the defendant in a felony case 

shall be personally present at the trial.” Subdivision (b) provides, 

however, “The absence of the defendant in a felony case after the 

trial has commenced in their physical presence shall not prevent 

continuing the trial to, and including, the return of the verdict in 

any of the following cases: [¶] (1) Any case in which the 

defendant, after being warned by the judge that they will be 

removed if they continue their disruptive behavior, nevertheless 

insists on acting in a manner so disorderly, disruptive, and 

disrespectful of the court that the trial cannot be carried on with 

the defendant present in the courtroom. [¶] (2) Any prosecution 

for an offense which is not punishable by death in which the 

9 Effective June 30, 2022 (sunsetting on January 1, 2024),

section 977, subdivision (b), was amended to provide for physical 

or remote presence for certain proceedings.
22

defendant is voluntarily absent.” Subdivision (c) provides 

further, “Any defendant who is absent from a trial pursuant to 

paragraph (1) of subdivision (b) may reclaim the right to be 

present at the trial as soon as they are willing to act consistently 

with the decorum and respect inherent in the concept of courts 

and judicial proceedings.” 

The Supreme Court in Gutierrez clarified that sections 977 

and 1043 do not conflict; rather, “under section 1043, 

subdivision (b)(2), a trial court may continue a trial in a custodial 

defendant’s absence after the trial has commenced in the 

defendant’s presence—without first obtaining the defendant’s 

written or oral waiver of the right to presence—if other evidence 

indicates the defendant has chosen to be absent voluntarily.” 

(Gutierrez, supra, 29 Cal.4th at pp. 1204, 1206.)

Our review of the trial court’s factual findings on whether 

the defendant’s absence was voluntary is deferential: “Review is 

restricted to determining whether the finding is supported by 

substantial evidence.” (People v. Espinoza, supra, 1 Cal.5th at 

p. 74; accord, Ramirez, supra, 14 Cal.5th at p. 190.) Further, the 

Supreme Court in Ramirez assumed but did not decide that “the 

clear and convincing evidence standard of proof applies to the 

trial court’s voluntary absence determination.” (Ramirez, at 

p. 190.) In applying that standard, the court explained, citing 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995 to 996, “the 

question on review is whether the record as a whole contains 

substantial evidence from which a reasonable fact finder could 

have found it highly probable that defendant’s absence was 

voluntary.” (Ramirez, at p. 190.) 
23

3. Venancio voluntarily absented himself from trial by 

spreading feces and resisting placement in a waist 

chain, making his attendance impossible 

Venancio contends the trial court violated his constitutional 

and statutory rights by conducting the trial in his absence 

because there was no evidence he refused to attend the trial; he 

was never violent; and his conduct, although “it could be deemed 

disruptive,” occurred outside the courtroom. We agree with the 

trial court that Venancio voluntarily absented himself from the 

trial, thereby waiving his constitutional and statutory rights to 

attend. (Gutierrez, supra, 29 Cal.4th at pp. 1208-1209.)

Although Venancio never expressly refused to attend the 

trial, there is substantial evidence to support the trial court’s

finding by clear and convincing evidence that he intentionally 

made it impossible to be present. On the day before jury 

selection began, during his examination by Dr. Knapke at the 

courthouse, Venancio defecated on his hands, smeared feces all 

over his face, and started eating the feces while claiming the 

“‘demons are bothering me.’” On the first day of jury selection, 

the trial court found Venancio was competent to stand trial, 

warned him that spreading feces was unacceptable in the 

courtroom, and advised him that his appearance while strapped 

to the safety chair would be highly prejudicial to his case. The 

court asked Venancio whether he wanted to be placed in a waist 

chain and commit to refrain from such conduct or to listen from 

another room, but Venancio did not respond. And when the 

deputies attempted to place him in a waist chain, Venancio made 

his body limp so it was “fruitless” to try to place him in a waist 

chain to appear in court (as defense counsel put it). On the 

second day of trial, Venancio gripped the arms of the safety chair 
24

so deputies could not lift him out of it, and defense counsel 

argued it would be worse for Venancio to appear in court in the 

chair than to be excluded because the chair had “a ton of straps” 

making it look like a “death chamber.” And when Venancio was 

placed in another room to listen to the proceedings, he urinated 

in the safety chair. On the third day of trial, Venancio was in a 

waist chain in the holding cell at the courthouse, but he defecated 

and spread feces all over himself and the holding cell, and there 

was no way to clean him to safely bring him into the courtroom. 

On the fourth day of trial, Venancio again defecated and spread 

feces in his holding cell. On each of these days—as well as on 

February 8 (day five) and 16 (day 10)—the court made findings 

Venancio’s conduct made it impossible for him to attend the trial, 

and the court repeatedly advised Venancio of his options, 

including that he could at any time assert his desire to attend the 

trial. Venancio never responded. 

Under these circumstances, Venancio voluntarily elected 

not to be present in the courtroom. Venancio could not attend the 

trial covered in feces (and the deputies could not safely escort him 

into the courtroom); he could not attend in a waist chain because 

it was insufficient to stop him from spreading feces; and he could 

not attend while strapped in the safety chair because it would 

have been “highly, highly prejudicial.” Moreover, the court made 

a finding (not challenged on appeal) that Venancio was 

malingering; the court repeatedly and clearly advised of Venancio 

of his right to be present and provided him options for being 

present; and the court found Venancio knew his conduct made it 

impossible for him to attend, yet he persisted in this conduct. 

(See Ramirez, supra, 14 Cal.5th at p. 190 [trial absence is 

voluntary where defendant is aware of the circumstances, aware 
25

of his right to be present, and has “‘“‘no sound reason’”’” for 

absenting himself].) 

Contrary to Venancio’s contention, there is no requirement 

that a defendant refuse to attend trial for the trial court to find 

he voluntarily absented himself. In Ramirez, supra, 14 Cal.5th 

at pages 181 through 192, for example, the Supreme Court 

recently affirmed a trial court’s ruling that a defendant 

voluntarily absented himself from trial when he took illicit drugs 

the night before his second day of trial and was taken to the 

hospital. The court held there might be circumstances where a 

medical emergency arising from drug use was not a voluntary 

absence, but substantial evidence supported the trial court’s 

finding by clear and convincing evidence that it was highly 

probable the defendant’s absence was voluntary in that he 

calculated his behavior to avoid going to trial (and he was not 

truly debilitated by the drugs). (Id. at pp. 190-192.) 

Similarly, in People v. Rogers (1957) 150 Cal.App.2d 403, 

411 through 412, relied on by the People, the Court of Appeal 

affirmed a trial court’s refusal to grant a continuance to a selfrepresented defendant who claimed he could not be mentally 

present on the day he was scheduled to present his defense 

because he was suffering from diabetic blackouts. The evidence, 

including a physician’s examination and a report from the jail, 

showed the defendant’s condition was self-induced, and on the 

morning in question, the defendant took a large dose of insulin 

without eating breakfast and lunch (after eating well and 

participating in the trial actively on prior days). (Id. at p. 413.) 

The court concluded, “The defendant, by his own actions, induced 

the condition existing in the afternoon of the fourth day of the 

trial. This amounted to a waiver of the right to be mentally 
26

present granted by [section 1043]. If this were not the rule, many 

persons, by their own acts, could effectively prevent themselves 

from ever being tried.” (Id. at p. 415.)

The People also rely on People v. Howze (2001) 

85 Cal.App.4th 1380, although the court there considered 

whether the defendant by his conduct waived his right to be 

present under section 977, not whether he waived his right to be 

present under section 1043, subdivision (b).10 In Howze, the

defendant refused to leave his jail cell to attend trial and “did 

everything he could to sabotage the proceedings, including 

fighting with deputies, acting as if he was being attacked by 

imaginary ‘bugs’ or people, claiming to be possessed by different 

people, claiming to have various physical maladies that 

prevented him from coming to court, not cooperating with doctors 

or mental health experts, not cooperating with his attorneys, 

stripping naked while in the holding tank to prevent having to go 

into the courtroom, and rubbing feces on himself to prevent his 

extraction from his cell when he refused to go to court.” (Howze,

at p. 1398.) On this basis, the court denied defendant’s motion 

made two days before trial to represent himself. (Ibid.) The 

court also concluded that the defendant, who had been “advised 

that a failure to leave his cell to be transported to court for the 

10 In People v. Howze, supra, 85 Cal.App.4th at page 1394, the 

defendant was not present at the commencement of trial, so 

section 1043, subdivision (b), did not apply. The case was decided 

on estoppel grounds because the defendant’s refusal to come to 

court, including his statement, “‘I’m not coming back, so do

whatever you’re gonna do,’” was not “in strict formal compliance” 

with the statutory requirements for a waiver under section 997. 

(Howze, at p. 1395.) 
27

commencement of trial would be considered a waiver of his right 

to be present, and subsequently chose not to leave his cell to be 

transported to court,” was “estopped to assert that the trial 

improperly commenced in his absence.” (Id. at p. 1396.)

Venancio argues that the cases in which defendants 

forfeited their right to be present at trial involved situations 

where they were disruptive inside the courtroom, citing People v. 

Bell (2019) 7 Cal.5th 70, 122 (nine deputies were needed to 

subdue the defendant after he started banging on the counsel 

table and tried to lift it). But Bell was a capital case, and 

section 1043, subdivision (b), allowing a trial to proceed in a 

defendant’s absence, did not apply. Here, it is immaterial 

whether Venancio smeared feces on himself in the courtroom, the 

adjoining conference room, or the courthouse holding cell. The 

undisputed evidence is that Venancio could not be cleaned up and 

safely and hygienically brought into the courtroom on the days he 

spread feces on himself.11 

Finally, Venancio argues defense counsel could not waive 

Venancio’s right to be present, citing People v. Johnson (2013) 

221 Cal.App.4th 943. In that case, the Court of Appeal concluded 

11 Venancio also argues that “most cases” in which a 

defendant has been found to have forfeited the right to be present 

at trial involved situations where the defendant engaged in or 

threatened violence, citing People v. Johnson (2018) 6 Cal.5th 

541, in which a defendant who violently attacked his attorney 

and cursed at the court in front of the jury was excluded from the 

rest of his trial under section 1043, subdivision (b)(1), without 

advance warning. The fact that a court may exclude defendants 

who are violent in the courtroom without warning does not mean 

a court may not find a voluntary absence based on nonviolent 

conduct.
28

the trial court erred (although the error was harmless) in 

allowing the bailiff to demonstrate the operation of a gun to the 

jury in the defendant’s absence after the defense attorney 

represented that the defendant was voluntarily absenting himself 

from the demonstration. (Id. at pp. 956-957.) By contrast, 

defense counsel did not purport to waive Venancio’s presence. 

The attorney simply agreed with the court’s finding the safety 

chair would be very prejudicial and argued the court should 

exclude Venancio rather than seating him in the safety chair. 

The court’s finding Venancio voluntarily absented himself was 

based on Venancio’s conduct, not a waiver on Venancio’s behalf, 

and the court personally advised Venancio of his right to be in 

court and the consequences of his conduct on at least four 

occasions. 

Moreover, to the extent Venancio contends the court should 

have ordered him to appear strapped to the safety chair instead 

of excluding him (which is not clear from his briefs on appeal), we 

agree with the People that Venancio waived this argument under 

the rule of invited error. (See People v. Waldon (2023) 14 Cal.5th 

288, 304 [“‘“The doctrine of invited error is designed to prevent an 

accused from gaining a reversal on appeal because of an error 

made by the trial court at his behest. If defense counsel 

intentionally caused the trial court to err, the appellant cannot be 

heard to complain on appeal. . . . [I]t also must be clear that 

counsel acted for tactical reasons and not out of ignorance or 

mistake.”’”]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 

49 [same].) It is clear from the comments made by defense 

counsel that he believed it was in Venancio’s best interest not to 

be present if the only option was to appear in court strapped into 

a chair that looked like one used for executions.
29

B. Venancio Has Not Met His Burden To Show Ineffective 

Assistance of Counsel in Failing To Object to the Victims’ 

Prior Statements to SART Nurses

Venancio contends his trial attorney provided ineffective 

assistance of counsel when he failed to object to statements 

Evelyn and Gabriela made to the SART nurses describing threats 

Venancio made during the rape and assault. Venancio argues 

Evelyn’s statement to Courtemanche that Venancio told her “I’m 

a professional,” and Gabriela’s statement to Swintelski that 

Venancio said “This isn’t my first rodeo,” were inadmissible 

hearsay and unduly prejudicial because they implied Venancio 

had previously raped other women. Venancio has not met his 

burden to show ineffective assistance of counsel because defense 

counsel had a rational tactical purpose for allowing the jury to 

hear the victims’ prior statements: to show inconsistencies 

between their accounts to the nurses and their trial testimony. 

To prevail on a claim of ineffective assistance of counsel, a 

defendant bears the burden to show (1) the “‘“counsel’s 

representation fell below an objective standard of reasonableness 

under prevailing professional norms”’” and (2) the defendant 

“‘“suffered prejudice to a reasonable probability, that is, a 

probability sufficient to undermine confidence in the outcome.”’” 

(People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Holmes, 

McClain and Newborn (2022) 12 Cal.5th 719, 806; see Strickland 

v. Washington (1984) 466 U.S. 668, 687-692.) 

A court reviewing a claim of ineffective assistance of 

counsel “begin[s] with the presumption that counsel’s actions fall 

within the broad range of reasonableness, and afford[s] ‘great 

deference to counsel’s tactical decisions.’” (People v. Mickel (2016) 

2 Cal.5th 181, 198; accord, People v. Lewis (2001) 25 Cal.4th 610, 
30

661 [“Because we accord great deference to trial counsel’s tactical 

decisions, counsel’s failure to object rarely provides a basis for 

finding incompetence of counsel.”].) Moreover, the defendant’s 

burden is “‘difficult to carry on direct appeal,’ as a reviewing 

court will reverse a conviction based on ineffective assistance of 

counsel on direct appeal only if there is affirmative evidence that 

counsel had ‘“‘no rational tactical purpose’”’ for an action or 

omission.” (Mickel, at p. 198; accord, People v. Woodruff (2018) 

5 Cal.5th 697, 746; see People v. Sepulveda (2020) 47 Cal.App.5th 

291, 301 [“‘On direct appeal, if the record “‘sheds no light on why 

counsel acted or failed to act in the manner challenged,’” we must 

reject the claim “‘unless counsel was asked for an explanation 

and failed to provide one, or unless there simply could be no 

satisfactory explanation.’”’”].) 

In this case, there is no need to parse the record to find 

defense counsel’s objective in not objecting to the victims’ prior 

statements. Outside of the presence of the jury—after the 

prosecutor adduced Evelyn’s statement but before Gabriela’s 

statement—the trial court asked defense counsel whether the 

court was correct in assuming he did not object to the statements 

made to the nurse at the rape treatment center “for a strategic 

reason so that you could get it all in to show whether there were 

inconsistencies in the actual narration to these medical 

personnel.” Defense counsel answered yes. 

Venancio has not shown this was not a rational objective. 

(See People v. Lewis, supra, 25 Cal.4th at p. 661 [rejecting claim 

of ineffective assistance of counsel based on failure to object to 

police officer’s testimony about defendant’s postarrest 

statements, explaining “nothing in the record suggests defense 

counsel lacked a rational tactical reason for not objecting to 
31

Officer Smith’s testimony. [Citations.] For example, counsel 

could reasonably have viewed the officer’s testimony as further 

support for the defense position that defendant did not actually 

use a weapon during the robbery.”].) It appears from the record 

that defense counsel believed the victim’s inconsistent statements 

to the nurse supported the defense position that both victims 

were escorts who fabricated details of the rape or assault to show 

a lack of consent or to conceal their own unlawful conduct. 

Indeed, Venancio’s attorney in his closing argument focused on 

discrepancies between Evelyn and Gabriela’s statements to the 

SART nurses and their testimony at trial. For example, defense 

counsel highlighted that Evelyn told Courtemanche that 

Venancio forced her to ingest methamphetamine, but she 

testified at trial that she did not take the drugs he offered. He 

likewise pointed out that Gabriela told Swintelski that Venancio 

had repeated sexual contact with her, but at trial she said the 

assault ended before any sexual contact. Gabriela also told 

Swintelski Venancio wielded a hammer, whereas at trial she said 

he had a knife. The attorney argued, “you can consider all her 

. . . inconsistent statements that she made that are different from 

the date of the incident from her testimony at trial. You can 

consider all that stuff in evaluating whether or not there’s a 

reasonable doubt as to whether Mr. Venancio either robbed or 

raped her.” 

Venancio argues his attorney had no legitimate reason not 

to object to Evelyn and Gabriela’s specific statements that 

Venancio told them, respectively, he was a “professional” and it 

was not his “first rodeo” because their trial testimony was silent 

(rather than inconsistent) on this point, and so the admission of 

the prior statements would not damage their credibility. But 
32

that is an artificially narrow view of defense counsel’s strategic 

objective. He may have felt the “first rodeo” and “professional” 

threats were histrionic and would be perceived by the jury to 

have been fabricated. Or he may have reasoned that a hearsay 

objection to those statements could have led to exclusion of the 

victims’ other prior statements that were critical to the defense 

strategy. We “begin[] with the presumption that counsel’s actions 

fall within the broad range of reasonableness,” and we find no 

“affirmative evidence that counsel had ‘“‘no rational tactical 

purpose’”’ for an action or omission.” (People v. Mickel, supra, 

2 Cal.5th at p. 198.)

Venancio also argues that defense counsel was aware that 

Evelyn’s and Gabriela’s statements were inadmissible because at 

the Evidence Code section 402 hearing, the trial court expressed 

a concern that similar proposed testimony by Hedden that Evelyn 

told her Venancio said “he had done this several times before” 

could be inadmissible hearsay and would be highly prejudicial. 

But the fact defense counsel, the trial court, and the prosecutor 

were all attuned to the hearsay and prejudice arguments 

surrounding the prior statements does not support a showing 

that defense counsel had no rational tactical purpose for not 

objecting. To the contrary, it is clear from the trial proceedings, 

including the trial court’s direct inquiry whether the attorney had 

a “strategic reason” for not bringing a hearsay objection, that this 

was not a case of inadvertence or incompetence, but a reasoned 

strategy. 
33

DISPOSITION

The judgment is affirmed. 

FEUER, J.

We concur:

PERLUSS, P. J.

ESCALANTE, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.