1

Filed 8/7/15 P. v. Campos CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL GILBERT CAMPOS,

Defendant and Appellant.

E061387

(Super.Ct.No. SWF1102822)

OPINION

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, 

Judge. Affirmed.

Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. 

Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted defendant and appellant, Manuel Gilbert Campos, of assault with 

a deadly weapon or instrument other than a firearm (Pen. Code, § 245, subd. (a)(1),

1

count 1), and the trial court sentenced him, after enhancements, to 35 years to life in state 

prison.

2

Defendant appeals his conviction on the grounds that the prosecution failed to 

present substantial evidence that: (i) anyone used a deadly weapon in the assault; (ii) it 

was defendant, rather than a second attacker, who used such a weapon; and (iii) 

defendant knew of the weapon’s existence and had the requisite intent for purposes of 

finding he aided or abetted the second attacker.

In addition, defendant contends his conviction should be overturned on the ground 

that his attorney denied him effective assistance by informing the jury that the other 

attacker had pled guilty to assault with a deadly weapon.

For the reasons post, we affirm the judgment.

I

FACTUAL BACKGROUND

On August 26, 2011, defendant and a second inmate engaged in an altercation 

with a third inmate in a common area of the Southwest Detention Center in Riverside. A 

deputy sheriff who witnessed the altercation described the events to the jury. The deputy 

 

1 All further unlabeled statutory references are to the Penal Code.

2 The clerk of the Riverside County Superior Court erroneously indicated in 

the abstract that defendant was convicted by the court rather than a jury.
3

also described the events as captured by two surveillance cameras while the prosecution 

showed the video recordings to the jury.

The altercation began when deputies remotely unlocked the doors to a tier of cells, 

allowing the inmates to enter a common area. Defendant emerged from cell No. 24 and a 

second inmate emerged from the adjacent cell No. 22. Both moved immediately to the 

left and entered cell No. 10, where the victim was housed. Within seconds, all three 

inmates burst out of cell No. 10. Defendant and the second inmate pursued the victim, 

striking him repeatedly. The victim withdrew into the center of the common room and 

the two other inmates briefly stopped attacking him.

According to the testifying deputy, he did not observe the initial skirmish, but 

began watching the three inmates after they were in the common room. Most of the 

subsequent fighting occurred in a blind spot of the surveillance cameras. However, the 

deputy witnessed the fighting from an unobstructed position in a raised observation 

station about 15 to 20 feet away. The deputy testified that the second attacker faced the 

victim and was “fighting like you would normally expect someone to fight in a boxing 

stance,” throwing “overhead punches” at the victim’s face and upper torso. The deputy 

saw defendant striking at the victim too, but testified he “wasn’t in a normal boxing 

stance.” Instead, “he was picking his spots,” “kind of hitting like in a stabbing or 

slashing-type motion” by swinging his right fist “from the side from [his] hip” and “up 

towards the shoulder.” On redirect examination, the deputy recognized on viewing the 

video that when defendant came out of the victim’s cell after the first skirmish, he threw 

an “overhead punch,” but insisted that thereafter defendant’s punches “were different 
4

because he was pulling his hand . . . in a sideways motion from his hip.” The deputy 

testified that he did not observe any weapons, but that it appeared from “the way he was 

holding his hand that [defendant] was holding something.”

The deputy testified that he used the intercom to tell the inmates to stop fighting 

and “lock it down.” Defendant and the second attacker broke off the fight, walked 

through the common room, and reconvened in front of the door to cell No. 6. The deputy 

testified initially that “it looks like they grab something out of cell 6.” Later, he testified 

while viewing the surveillance video that only the second attacker was near cell No. 6 at 

the time. He later testified that it did not appear to him that either inmate had taken 

anything from the cell.

After a momentary pause, defendant and the second attacker approached the 

victim again, backed him up to a position in front of the same sliding door, and resumed 

fighting. The second attacker resumed “punching [the victim] again in that boxing 

stance” using “overhead punches . . . with both hands.” Defendant also resumed fighting, 

according to the deputy, by “continu[ing] to make that jabbing motion.” Though he 

testified defendant held his hand in a fist and appeared to be holding something, the 

deputy admitted he did not see anything in defendant’s hand. In describing defendant’s 

motion on cross-examination, the deputy testified, “I have seen many, many fights, 

ma’am. And I have never seen anything like that. The only time I have seen it was 

consistent in the shankings and different things like that that I have seen.”
5

All together, the fighting lasted just over one minute.

3

 The deputy testified that the 

victim defended himself throughout. The video shows vigorous fighting on the part of all 

three inmates. The deputy described the victim as having been hit “a lot.”

When additional deputies arrived, defendant and the second attacker left the victim 

again. They first walked toward the left side of the common room, where a group of 

other inmates had congregated, and then took up positions outside the doors to their cells 

on the right side of the common room. The surveillance video shows that defendant’s 

cellmate opened the door to cell No. 24, defendant reached toward the door, and the 

cellmate closed the door again. The deputy testified that the inmates complied with an 

order to lie on their stomachs. The deputy testified, and the surveillance video confirms, 

that defendant then took off his orange overshirt and stuffed it under the door of his cell. 

It appeared that defendant’s cellmate pulled the shirt inside.

Once the deputies had secured the room and inmates, they examined the victim. 

He had suffered several injuries, the worst of which were cuts on his right cheek and his 

left shoulder blade. The deputy described “very clean . . . smooth cut[s]” whose “edges 

were smooth” and “not jagged.” The deputy testified that the cut to the victim’s cheek 

was not “very deep . . . just enough to make it bleed.” He described the cut to the 

victim’s back as being “like a deep paper cut.” Photographs taken at the time and shown 

to the jury are consistent with his description. The deputy testified that, in his experience, 

 

3 The video recordings of the altercation include a timer, which shows the 

three skirmishes occurred between 7:04:08 p.m. and 7:04:19 p.m., 7:04:53 p.m. and 

7:05:11 p.m., and 7:05:47 p.m. and 7:06:16 p.m.
6

the victim’s cuts were consistent with cuts suffered by slashing victims and cuts caused 

by sharp instruments in prison fights. A second deputy testified that injuries suffered in 

the approximately one dozen prison shanking incidents he has seen are “[u]sually . . . a 

slice wound or a real sharp cut. Occasionally it’s a—a stab or like a puncture.”

At trial, the parties stipulated that the victim spoke to the deputy on August 26, 

2011, after the attack, and stipulated to the content of his statement. The victim said he 

did not know why the attack happened and could not think of a reason the two inmates 

would attack him. The victim also told the deputy that he did not see what the two 

inmates “attacked him with.” At trial, the victim appeared under duress and testified he 

did not know defendant, did not remember an altercation with defendant and the second 

attacker, and that he had suffered the injuries shown in the photographs in two separate 

falls in a prison shower in 2005.

The deputies also examined and searched defendant, the second attacker, and the 

common room area. They did not find anything that could have been used as a weapon 

on the inmates’ persons. There was blood on the second attacker’s shirt and hands and he 

had cuts on his hand. There were abrasions but no cuts on defendant’s hands, and there 

was no blood on his undershirt, pants, or hands.

An investigating deputy found an altered toothbrush, a handle broken off a plastic 

spoon, and some droplets of blood on the floor of the common room near where the 

fighting took place. The prosecution introduced photographs of these instruments 

through the testimony of the investigating deputy, but did not introduce the instruments 

themselves. The toothbrush appears to have been burned on the brush end and broken 
7

and burned on the grip end. The piece of plastic spoon is about one-inch long (the length 

of three lines of ruled paper as depicted in the photograph) and has no black marks that 

would indicate burning. The investigating deputy testified that the instruments did not 

have blood on them.

The deputy testified that both instruments could be made into shanks and inmates 

commonly use them for that purpose. He testified that “normally you have something 

sharp on the edges of . . . both of these.” The toothbrush the deputy found does not 

appear to have sharp edges, and the deputy testified it is not a working shank in the state 

in which it was found. He testified that to make a toothbrush into a weapon inmates “will 

melt [the toothbrush] and they will melt a razor blade into the . . . end.” He testified that 

a spoon handle can be made into a shank by “melt[ing] or sharpen[ing] [it] into a point 

. . . or they can insert the razor blade into the end to hold the razor blade.” The deputy 

testified that he searched the whole common area, but did not find a razor blade or any 

other sharp or metal object that could have been used to turn the instruments into 

functioning shanks. He also testified that he conducted a search of the other inmates in 

their cells, but did not find any razor blades or sharp objects.

Both defendant and the second attacker were charged with using a deadly weapon 

to assault the victim. The second attacker pled guilty, but defendant went to trial to 

contest the charge. Defendant contended at trial that (i) no deadly weapon was used in 

the fight, (ii) the second attacker, not defendant, used a deadly weapon, and (iii) 

defendant did not know the second attacker used or planned to use a deadly weapon.
8

At a hearing the day before trial began, defendant’s counsel requested that the trial 

court take judicial notice and inform the jury that the second attacker had pled guilty to 

the charge of assault with a deadly weapon. His counsel explained: “It is our position 

that it’s the codefendant who assaulted with a deadly weapon, and my client didn’t have 

knowledge that he intended to do that, or in fact knowledge that he was using a weapon.” 

The trial court raised the objection that doing so was contrary to the standard jury 

instruction against jurors considering whether anyone else involved in a crime had been 

or would be prosecuted. Defendant’s attorney responded that “the relevance is that the 

codefendant has already pled guilty to the assault with a deadly weapon. He didn’t plead 

guilty to assault with force likely. He didn’t plead guilty to simple assault. And I think it 

is entirely relevant as to whether or not my client used a weapon or not.”

The court again questioned the relevance of the plea, and asked whether the 

second attacker would be testifying. Defendant’s attorney said she did not plan to call 

him as a witness. The court then asked for the prosecution’s position. The prosecution 

responded that it agreed with the court, understood the defense counsel’s position, but 

had mixed feelings. When the court expressed its inclination to disallow the request, 

defendant’s attorney objected stating, “When I discussed this matter with [the 

prosecutor], I asked her if she was going to object. It was one of the reasons that I—and 

she said no. It was one of the reasons I answered ready for trial and opted not to bring 

the codefendant down, otherwise I would certainly put him on the stand.” The prosecutor 

indicated that she had “mixed feelings,” but did not object, and the court indicated it 

would take notice of the guilty plea and inform the jury.
9

Later at the hearing, the prosecution moved to dismiss a second count against 

defendant alleging assault to commit mayhem under section 220. The prosecution 

explained that “I will actually state for the record that I have made a tactical decision not 

to bring the codefendant down. The filing of the 220 would have changed that 

decision . . . .”

After the final witness had been called, defense counsel “ask[ed] the Court to take 

judicial notice of the conviction of [the second attacker].” The trial court instructed the 

jury as follows: “Ladies and gentlemen, the Court is going to take judicial notice of the 

following: [The second attacker] was accused of and charged with a violation of Penal 

Code Section 245, Subdivision (a), Subsection (1), the same charge that’s pending here 

against [defendant], in that on or about August 26th, 2011, in the County of Riverside, 

State of California, he did willfully and unlawfully commit an assault upon [the victim] 

with a deadly weapon other than a firearm. [¶] This accusation and charge arose from 

the same incident the defendant . . . is currently accused and charged with. [¶] And on 

January 4, 2012, [the second attacker] entered a plea of guilty to this charge. [¶] Now, 

when a Court takes judicial notice of something, what basically I am saying is I reviewed 

my own records here, and by my own records, I mean the Court records, the official 

records. And these records show that indeed what I just read to you occurred. So you 

can—the same thing, you are to accept that as a proven fact without any additional 

testimony.”

At closing, both the defense and the prosecution relied on the plea to argue that a 

deadly weapon was used in the assault. Defendant’s attorney argued: “What you have, 
10

in fact, though, is [the second attacker’s] admission. He pled guilty to the charges, not 

guilty to a simple assault. There is no evidence that he pled guilty as an aider and abettor. 

He pled guilty to the assault of [the victim] with a deadly weapon.” She also argued that 

“[t]here is no evidence that my client knew, in fact, that [the second attacker] had a 

weapon” though “we know that he did . . . because he has already pled guilty to it.” The 

prosecution agreed, arguing that “[t]his is assault with a deadly weapon. And we know 

that based on [the second attacker’s] plea.”

However, defendant’s attorney also contended that there was no shank. She 

argued that the victim “wasn’t shanked” and there was no evidence anyone had a shank 

or sharp object that could have been used to make a shank out of the instruments found at 

the scene. She also contended “no one came in and told you that those specific weapons 

were such of nature [sic] that they have the capability of causing great bodily injury or 

death” and no one testified that if one of the inmates “had slit [the victim’s] throat with a 

blunt toothbrush, or piece of spoon, that in fact that’s going to cause any sort of injury, 

other than the scratches [that] you saw.” She did not attempt to explain how the 

conclusion that there was no shank fit with her concession that the second attacker had 

used one. Nor did she attempt to harmonize those positions by explicitly arguing them in 

the alternative.

The prosecution urged the jury to use its common sense and discount the defense 

counsel’s arguments as inconsistent. She argued “they move from that to, ‘Okay, 

[defendant] is guilty, but he is guilty of a simple misdemeanor assault. But nobody had a 

shank’ . . . ‘It wasn’t a shank.’ Then they go with, ‘Okay. There was a shank, but [the 
11

second attacker], he is the one who had it. See, he pled guilty to assault with a deadly 

weapon.”’ She argued that “[t]he fact that [the second attacker] pled guilty to assault 

with a deadly weapon only proves that [the victim] was, in fact, assaulted with a deadly 

weapon.” Finally, she contended that the second attacker could have pled guilty as an 

aider and abettor if defendant was the perpetrator and that defendant should be found 

guilty as an aider and abettor even if the jury concluded the second attacker was the 

perpetrator.

During deliberations, the jury asked the court, “Have the items found on the floor 

. . . been ID’d as deadly weapons or is that up for question?” The trial court responded, 

“[t]hat is a question only you folks can answer” and referred the jury to the definition of a 

deadly or dangerous weapon in the jury instructions. The relevant instruction explains, 

“A deadly weapon other than a firearm is any object, instrument, or weapon that is 

inherently deadly or one that is used in such a way that it is capable of causing and likely 

to cause death or great bodily injury.”

The jury returned a verdict finding defendant guilty of assault with a deadly 

weapon.

II

ANALYSIS

1. Sufficiency of the Evidence of Assault With a Deadly Weapon

Defendant argues his conviction should be reversed because the prosecution 

presented insufficient evidence to sustain a finding that he committed an assault with a 
12

deadly weapon and the trial court erred in denying his section 1118.1 motion.

4

He 

contends there was insufficient evidence that a deadly weapon was used in the assault as

well as that he was culpable for the use of any such weapon.

On a challenge to the sufficiency of evidence supporting a conviction or to support 

the denial of a section 1118.1 motion, we ‘“examine the whole record in the light most 

favorable to the judgment to determine whether it discloses substantial evidence—

evidence that is reasonable, credible and of solid value—such that a reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We 

presume in support of the judgment the existence of every fact the trier could reasonably 

deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases 

in which the prosecution relies primarily on circumstantial evidence . . . .” (People v. 

Houston (2012) 54 Cal.4th 1186, 1215; accord, People v. Hajek and Vo (2014) 58 Cal.4th 

1144, 1182-1183 (Hajek and Vo).) “‘If the circumstances reasonably justify the trier of 

fact’s findings, the opinion of the reviewing court that the circumstances might also be 

reasonably reconciled with a contrary finding does not warrant a reversal of the 

judgment.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 668 (Holt).) This 

standard is high, requiring an appellate court to “accept logical inferences that the jury 

 

4 The People point out defendant brought his section 1118.1 motion for 

judgment of acquittal after the trial court had submitted the case to the jury, which makes 

it untimely. (§ 1118.1, subd. (a)(1).) This irregularity does not change our analysis 

because the error was harmless.
13

might have drawn from the evidence even if the court would have concluded otherwise.” 

(People v. Combs (2004) 34 Cal.4th 821, 849.)

a. Use of a deadly weapon

Defendant argues there was no substantial evidence that either defendant or the 

second attacker used a deadly weapon in the assault. He points out the deputy who 

observed the altercation admitted he did not see a weapon during the attack, deputies did 

not find a weapon on defendant or the second attacker after the attack, and the only items 

located near the scene were portions of a plastic toothbrush and a plastic spoon. 

Defendant argues the evidence shows these items could not be used as shanks without 

alteration and that deputies did not find a razor blade or other sharp object that could have 

turned them into shanks. He concludes “the record does not contain sufficient, solid, 

credible evidence that [the victim] was assaulted with a deadly weapon.” We disagree.

For purposes of the section 245, subdivision (a)(1) proscription against 

“commit[ing] an assault upon the person of another with a deadly weapon or instrument,” 

a deadly weapon is any “object, instrument, or weapon which is used in such a manner as 

to be capable of producing and likely to produce, death or great bodily injury.”

5

 (People 

 

5 The People point out section 245, subdivision (a)(1) proscribed assaults 

carried out by “any means of force likely to produce great bodily injury” in addition to 

those carried out “with a deadly weapon.” That provision is not in issue here, however, 

because the complaint, the information, and the jury instructions focused exclusively on 

whether the assault was committed with a deadly weapon. We note that effective January 

1, 2012, the proscription against assaults carried out “by any means of force likely to 

produce great bodily injury” has been moved from subdivision (a)(1) to its own 

subdivision, (a)(4). (Stats. 2011, ch. 183, § 1.)
14

v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).) Objects such as the altered 

toothbrush and spoon handle found at the scene of this assault are “not deadly per se,” but 

“may be used, under certain circumstances, in a manner likely to produce death or great 

bodily injury.” (Id. at p. 1029.) The jury was charged with deciding, among other things, 

whether defendant or the second attacker used these instruments in a sufficiently 

dangerous manner. (See, e.g., People v. Cook (1940) 15 Cal.2d 507, 516 [holding a piece 

of a two-by-four was a deadly weapon when used to strike the victim over the head]; 

People v. Helms (1966) 242 Cal.App.2d 476, 486-487 [holding a pillow was a deadly 

weapon when used in an attempt to smother the victim]; People v. Russell (1943) 59 

Cal.App.2d 660, 664-665 [holding a fingernail file was a deadly weapon when used to 

strike the victim in the face].) In making that determination, the jury was free to 

“consider the nature of the object, the manner in which it is used, and all other facts 

relevant to the issue.” (Aguilar, supra, at pp. 1028-1029.)

The prosecution presented sufficient evidence for the jury to conclude that the 

altered toothbrush and spoon handle could be used to make deadly weapons. The jury 

heard the testimony of the deputy who investigated the scene of the assault after the 

inmates had been removed. The deputy described finding blood on the floor near “a 

piece of toothbrush that [he] believed to be a weapon.” He also found a spoon handle in 

the same area. The deputy explained that it is common for inmates to make weapons out 

of prison-provided plastic spoons and toothbrushes by melting the plastic and then 

melting a blade or other sharp object into the plastic. The toothbrush had been altered by 

melting.
15

Neither instrument was attached to a blade or other sharp object when the deputy 

found the instruments, and he did not find any sharp objects in his subsequent search. 

However, the jury had sufficient evidence to infer that defendant was using a weapon 

during the fight and acted to conceal a blade afterward. The deputy who observed the 

altercation witnessed most of the fight through a window in an observation post about 15

to 20 feet away. He testified that defendant “was picking his spots,” striking at the victim

with a “stabbing or slashing-type motion.” The deputy also testified that it appeared from 

“the way he was holding his hand that [defendant] was holding something.” He also 

testified, “I have seen many, many fights,” but had “never seen anything like” 

defendant’s motion except “in the shankings and different things like that that I have 

seen.” The surveillance video of the fight is inconclusive because the recordings have 

poor resolution and most of the fighting took place in a blind spot of the surveillance 

cameras. Those portions of the video recordings that do show the fight appear to be 

consistent with the testimony of the deputy who observed the altercation. The jury could 

reasonably credit that testimony and conclude defendant used some object to strike at the 

victim.

In addition, the nature of the victim’s injuries are consistent with his being cut by a 

blade or other sharp object attached to either the toothbrush or spoon handle found at the 

scene. The deputy who observed the altercation testified, and photographs presented to 

the jury confirm, that the victim suffered two long, smooth cuts. That deputy testified 

that, in his experience, the victim’s cuts were consistent with cuts suffered by slashing 

victims in prison fights. The deputy who investigated the scene after the fight testified 
16

that injuries suffered in the prison shank incidents that he has seen are “[u]sually . . . a 

slice wound or a real sharp cut.” The jury could reasonably conclude from the injuries 

that one of the inmates had some object with a sharp edge to strike at the victim.

Finally, the jury had sufficient evidence that one of the inmates disposed of a razor 

blade or other sharp object. The surveillance video shows that after the fighting, both 

inmates moved into a crowd of other inmates before proceeding to their own cells. Once 

defendant reached his cell, his cellmate opened the cell door, and defendant reached 

toward the door with one hand. The deputy testified and the video recording clearly 

shows that defendant then removed his outer shirt and stuffed it under the door to his cell. 

The deputy testified, and the video recording corroborates, that defendant’s cellmate 

pulled the shirt under the crack of the door and into the cell. It was reasonable for the 

jury to conclude that the inmates sought to conceal evidence. Taken together with the 

evidence of defendant’s manner in the attack, the nature of the injuries, and the fact that 

the toothbrush found on the scene had been melted in a way indicating to experienced 

deputies that it had been altered to be used as a shank, the jury could reasonably conclude 

that one of the two inmates took one of those opportunities to conceal a razor blade or 

other sharp object. Thus, this evidence provides a substantial basis for the jury to find 

that a deadly weapon was used in the assault.

Defendant objects that the victim’s injuries were “not commensurate with being 

attacked and struck repeatedly with a shank or deadly weapon.” It is true that the 

testimony and photographic evidence reveal that the victim suffered shallow cuts rather 

than puncture wounds or deep gashes. As defense counsel argued in her closing 
17

argument to the jury, those injuries could have been caused by the sharp edge of an 

instrument such as the broken plastic spoon the deputies found at the scene. But they 

could also have been caused by a sharper instrument like a razor blade. One deputy 

testified that injuries suffered by shank victims were, in his experience, “[u]sually . . . a 

slice wound or a real sharp cut” and only “[o]ccasionally . . . a stab or like a puncture.” 

The jury may reasonably have concluded that one of the attackers possessed and used a 

fully functional shank. Though we might reach a different conclusion, we are not 

permitted to substitute our own judgment for the judgment of the jury. (People v. Banks

(2014) 59 Cal.4th 1113, 1156.)

b. Defendant’s culpability

Defendant contends there was no substantial evidence that he “was the one with 

the deadly weapon.” We disagree.

The evidence recounted ante provides an adequate basis for the jury to conclude 

that defendant himself used a deadly weapon in the assault. Much of the evidence points 

directly to defendant as the perpetrator. The witnessing deputy testified that the 

defendant attacked the victim by employing “slashing” and “jabbing motions” and that he 

appeared to be holding something in his hand. According to the deputy, the other 

attacker did not fight in the same fashion. Instead, he punched the victim from a boxer’s 

stance. Moreover, it was defendant, not the second attacker who appeared to hand 

something to his cellmate and then remove his shirt and stuff it under his cell door. 

Those actions gave the jury reason to infer that defendant was trying to avoid being 

caught with the missing blade.
18

Defendant argues the victim’s “injuries to his shoulder and cheek are not 

consistent with the upward and sideways swinging punches” which, according to the 

deputy, characterized defendant’s fighting. He argues that, if he had possessed a weapon, 

the victim would have “substantial penetrating injuries in his lower torso . . . not 

superficial cuts to his face or his upper shoulder,” and concludes that “no reasonable juror 

could find that [defendant] inflicted the cuts to [the victim] with a shank.” We disagree. 

As the deputy testified and the video evidence shows, the three men fought vigorously, 

the fight was fluid, and the victim actively defended himself. We must interpret the 

evidence in the light most favorable to the judgment, which includes presuming “the 

existence of every fact the trier could reasonably deduce from the evidence.” (Hajek and 

Vo, supra, 58 Cal.4th at p.1183.) A reasonable jury could conclude that the victim’s 

injuries were consistent with the free-wheeling fight described by the deputy and depicted 

in the surveillance video.

In view of the fact that the jury’s verdict is supported by substantial evidence that 

defendant used a shank to attack the victim, we need not consider whether there was also 

substantial evidence that he aided and abetted the second attacker in doing so.

2. Effective assistance of counsel

Defendant contends his attorney provided inadequate representation by convincing 

the court to take judicial notice and inform the jury that the person with whom he 

committed the attack had already pled guilty to assault with a deadly weapon. He argues 

that this decision was constitutionally defective because it effectively withdrew his 
19

strongest factual defense—that the attack was a simple assault because there was no 

deadly weapon—without providing any conceivable benefit. We disagree.

The Sixth Amendment to the United States Constitution and article 1, section 15 

of the California Constitution entitle criminal defendants to competent representation. 

(Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland); People v. Lucas (1995) 

12 Cal.4th 415, 436.) The right to effective assistance of counsel “is meant to assure 

fairness in the adversary criminal process.” (United States v. Morrison (1981) 449 U.S. 

361, 364.) A defendant can expect his counsel to make rational and informed decisions 

on strategy and tactics that are grounded on adequate investigation and preparation. (In 

re Hall (1981) 30 Cal.3d 408, 426; People v. Frierson (1979) 25 Cal.3d 142, 166.) For 

defendant to prevail on his claim that he has been denied effective assistance, he must 

establish: “(1) that counsel’s representation fell below an objective standard of 

reasonableness; and (2) that there is a reasonable probability that, but for counsel’s 

unprofessional errors, a determination more favorable to defendant would have resulted. 

[Citations.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; accord, Holt, supra, 15 

Cal.4th at p. 703.)

a. Deficient performance of counsel

In evaluating a claim of deficient performance, we give great deference to 

counsel’s tactical decisions. (People v. Frye (1998) 18 Cal.4th 894, 979.) We evaluate 

trial counsel’s decisionmaking in the context of the available facts, and generally do not 

find tactical errors at trial to be cause for reversing a judgment. (People v. Farnam

(2002) 28 Cal.4th 107, 148.)
20

We hesitate to find ineffective assistance on direct appeal because often the record 

is not developed enough to evaluate the attorney’s conduct. (People v. Pope (1979) 23 

Cal.3d 412, 426 [“Where the record does not illuminate the basis for the challenged acts 

or omissions, a claim of ineffective assistance is more appropriately made in a petition 

for habeas corpus”].) Resources would be wasted if appellate courts reversed judgments 

for ineffective assistance, only to have “new defense counsel on retrial . . . do exactly 

what the original counsel did” based on some “informed tactical choice” not apparent in 

the appellate record. (Id. at pp. 425-426.) On direct appeal, we will “reverse convictions 

on the ground of inadequate counsel only if the record on appeal affirmatively discloses 

that counsel had no rational tactical purpose for his act or omission.” (People v. Zapien

(1993) 4 Cal.4th 929, 980 (Zapien) [quoting People v. Fosselman (1983) 33 Cal.3d 572, 

581].)

The precedents are clear that attorneys may reasonably adopt trial tactics even if 

they entail making damaging admissions. In Farnam, the California Supreme Court held 

it was not ineffective assistance for defense counsel to admit at the guilt phase of a capital 

murder trial that defendant had a prior murder conviction. (Farnam, supra, 28 Cal.4th at 

pp. 148-150.) Trial counsel made that choice, despite the substantial risk of prejudice, 

because he reasonably feared jurors would react negatively toward defendant if they 

learned about the prior conviction for the first time during a later phase of the trial. (Id.) 

Similarly, in People v. Welch, the high court held it was not ineffective assistance for 

counsel to abjure an actual innocence defense in favor of the defense that the murder was 

not premeditated where the evidence of guilt was overwhelming. (People v. Welch 
21

(1999) 20 Cal.4th 701, 728 (Welch).) Thus, trial counsel does not perform deficiently if 

there is a rational purpose that supports the challenged trial tactic, even if that choice 

involves making a damaging admission.

In this case, the defense counsel introduced the second attacker’s guilty plea to 

support the conclusion that defendant did not wield the shank if the jury decided, despite 

counsel’s arguments to the contrary, that someone did use a shank in the attack. 

Introducing the second attacker’s guilty plea supported that conclusion by providing a 

basis for the jury to find the second attacker was the perpetrator. Before the jury learned 

of the guilty plea, there was no direct evidence the second attacker had wielded a weapon 

and the deputy who witnessed the attack testified that defendant, not the second attacker, 

fought as if he was using a weapon.

6

Introducing the guilty plea to the jury at least made 

plausible what otherwise would have been speculative. This change in the state of the 

evidence was important because defendant’s contention that he did not know there was a 

weapon was consistent with other evidence about the fight. The deputy who observed the 

fight testified that he did not see a weapon, and the victim told deputies immediately after 

the fight that he did not see what the other inmates had used to attack him. The second 

 

6 Defendant contends there was evidence the second attacker had picked up a 

weapon from someone in cell No. 6 before the final skirmish. The witnessing deputy testified 

that “it looks like they grab something out of cell 6” and on cross-examination admits only the 

second attacker was near cell No. 6. But the deputy later testified while viewing the surveillance 

video that it did not appear either inmate had picked anything up from cell No. 6. Even if that 

testimony and the video recording provided some support for finding the second attacker had a 

weapon, introducing the guilty plea lent support to a conclusion that otherwise had little support 

in the evidence elicited at trial.
22

attacker’s guilty plea therefore gave the jury a way to conclude that defendant was guilty 

of nothing more than simple assault.

In addition, defense counsel did not make much of a concession by introducing the 

guilty plea. Though circumstantial, the evidence that someone had used a shank in the 

attack was strong. The jury saw pictures of the victim’s long, smooth cuts and heard 

testimony from experienced deputies that such injuries were consistent with injuries 

suffered by victims of shank attacks. Defense counsel could reasonably have feared that 

evidence was so powerful the jury would react negatively to defendant if he simply 

denied its import. On that basis, she may have concluded the jury would be more likely

to credit defendant’s denial that he used or knew about a shank if he acknowledged the 

evidence tended to show someone had used one. We conclude defense counsel could 

reasonably have concluded that introducing the guilty plea of the second attacker offered 

her client the best chance of a conviction for the lesser included misdemeanor offense of 

simple assault. Though defense counsel’s tactic evidently did not succeed, it is exactly 

the kind of tactical trial decision we are hesitant to label deficient, especially on direct 

appeal. (Zapien, supra, 4 Cal.4th at p. 980.)

Defendant argues his trial attorney’s decision was deficient because it did not 

show the second attacker wielded the weapon and introducing the guilty plea therefore 

“served no effective purpose other than to inform the jury that [the second attacker] 

pleaded guilty to assaulting [the victim] with a deadly weapon.” We acknowledge that 

trial counsel said she believed the guilty plea tended to show it was the second attacker 

and not her client who used a shank. And we agree, strictly speaking, that view is 
23

mistaken. Both men could be guilty of assault with a deadly weapon if one used a deadly 

weapon and the other aided him, as the trial court explained to the jury. The jury heard 

no evidence to indicate that the second attacker pled guilty specifically as the perpetrator 

and not as an accomplice. Thus, the guilty plea did not tend to show that the second 

attacker was the perpetrator. However, as we held above, we do not agree there was no 

conceivable benefit to making the concession. Defense counsel may have introduced the 

guilty plea because, in her judgment, the evidence that someone used a shank in the fight 

was significant and the jury was more likely to believe defendant did not know of the 

weapon if he acknowledged the import of that evidence. We cannot say the trial tactic 

could not serve the defendant’s interests.

Defendant also argues his trial attorney’s decision to admit the second attacker’s 

guilty plea was deficient because it “provid[ed] support for a contested element of the 

prosecution’s case.” As discussed above, the acknowledgement of the existence of a 

deadly weapon was not much of a concession because of the strength of the 

circumstantial evidence that someone had used a deadly weapon. Furthermore, the 

California Supreme Court decision in Welch establishes that an attorney may decide for 

tactical reasons to forgo a defense entirely. (Welch, supra, 20 Cal.4th at p. 728.) We 

believe it follows that an attorney may, as happened in this case, decide to pursue one 

defense theory in a way that does damage to another defense theory. Defendant relies on 

People v. Moreno (1987) 188 Cal.App.3d 1179, 1190-1191 for the contrary position, but 

the lesson of that case is far narrower. In Moreno, the defendant was charged with 

driving while intoxicated, but disputed that he was the driver of the vehicle. (Id.) 
24

Defense counsel failed to object when the prosecution introduced hearsay testimony that 

defendant was the driver, evidence that was a prerequisite for the prosecution introducing 

defendant’s extrajudicial confession. (Id.) The Moreno court held that allowing the 

evidence to enter the trial was deficient because it was inadmissible, it enabled the 

prosecution to introduce defendant’s confession, and the court could “conceive of no 

tactical reason whatsoever which might have dictated trial counsel’s decision not to 

object.” (Id. at p. 1191.) Thus Moreno stands for the narrower proposition that defense 

counsel performs deficiently by allowing improper evidence that tends to prove an 

element of the charge where the admission of the evidence does not provide any benefit 

to the defendant. For reasons we have explained above, defense counsel’s decision in 

this case does not violate that principle.

b. Prejudice

We have already held that, without considering the guilty plea, a jury could 

reasonably have found beyond a reasonable doubt that defendant used a deadly weapon 

to commit the assault. We must now decide whether there is a reasonable probability that 

without that evidence the jury would have had a reasonable doubt that defendant was 

guilty. (See Strickland, supra, 446 U.S. at p. 695.)

“Given this court’s limited role on appeal, defendant [bore] an enormous burden in 

claiming there was insufficient evidence to sustain his conviction . . . .” (People v. 

Sanchez (2003) 113 Cal.App.4th 325, 330 [Fourth Dist., Div. Two].) Defendant’s burden 

in challenging a conviction based on ineffective assistance of counsel is not so heavy. 

Defendant “need not show that counsel’s deficient conduct more likely than not altered 
25

the outcome in the case.” (Strickland, supra, 466 U.S. at p. 693.) “Rather, the defendant 

must establish a reasonable probability that, but for counsel’s errors, the result would 

have been more favorable to the defendant.” (In re Wilson (1992) 3 Cal.4th 945, 956; see 

Ledesma, supra, 43 Cal.3d at pp. 217-218.) A reasonable probability is simply a 

probability sufficient to undermine confidence in the outcome. (Strickland, supra, at p. 

693.) We find no reason to disturb the jury’s verdict.

Though the evidence that defendant used a functional shank in the assault is 

circumstantial, it is strong. First, deputies found pieces of a toothbrush and plastic spoon 

handle at the scene of the fight near droplets of blood. One deputy testified inmates often 

use such implements to fashion shanks by melting them and embedding a razor blade or 

other sharp object in the plastic. The deputy testified that his first reaction was that the 

toothbrush, which was melted on both ends, “was fashioned into a weapon.” Second, the 

deputy who observed the fight testified defendant appeared to be holding something in 

his hand during the attack and struck at the victim by jabbing and slashing. He also 

testified he had seen fighting methods like those defendant used only in other shank 

attacks. Third, though deputies were not able to locate a razor blade or other sharp object 

of a sort that would have been embedded in the toothbrush, other circumstantial evidence 

suggests defendant concealed that evidence. When deputies broke up the fight, both 

defendant and the second attacker withdrew into a crowd of other inmates before taking 

up positions in front of their own cells. Once defendant was at his cell, his cellmate 

opened the door, and defendant reached one hand back toward the door. After the 

cellmate closed the door, defendant removed his outer shirt and stuffed it under his cell 
26

door. All of these actions imply that defendant was attempting to conceal evidence. 

Finally, a deputy testified that the victim’s injuries were consistent with injuries he had 

witnessed in other inmate fights involving sharp instruments. Nearly everything about 

the incident implies that defendant used a shank in the attack. Only the razor blade or 

other sharp object is missing. We do not believe that there is a reasonable probability 

that the jury would have failed to convict defendant of assault with a deadly weapon if it 

had entered deliberations with this evidence alone and without knowledge of the second

attacker’s guilty plea.

Defendant points out that “the jury asked whether the toothbrush and spoon handle 

had been identified as deadly weapons,” and argues that we know from its query that it 

was “the most significant issue raised by the evidence.” Defendant also argues that the 

jury’s question indicates the jury “understood the significance of [the second attacker’s] 

guilty plea” and “that at least one juror was not convinced that the prosecution had met its 

burden regarding the deadly weapon element, and that at least one other juror believed 

the guilty plea answered that issue.” We disagree. We know only that the jury 

considered whether the implements found at the scene were used as deadly weapons and 

was unsure whether it was a factual question for them to resolve. Anything more is 

speculation. It may be that the jury considered whether the guilty plea established that 

the instruments found at the scene were deadly weapons. Even if they did, the trial 

court’s response more likely led the jurors away from relying on the guilty plea and 

toward relying on the other record evidence. It was defendant’s burden to undermine 

confidence in the verdict. (Ledesma, supra, 43 Cal.3d at p. 218.) Pointing to an isolated 
27

question from the jury does not meet that burden when other record evidence amply 

supports it.

III

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.