What is the test for a defendant to argue that his trial counsel was ineffective in failing to object to improper character evidence in a criminal case?

Defendant is correct that his trial counsel's failure to object to this line of questioning forfeited his ability to challenge its admission on the merits on appeal. (Evid. Code, 353; People v. Alexander (2010) 49 Cal.4th 846, 912 [failure to object to improper character evidence under Evid. Code, 1101 forfeits the claim on appeal].) We nonetheless must consider whether defendant has shown his trial counsel was ineffective in failing to object.

"To show ineffective assistance of counsel, defendant has the burden of proving that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. [Citations.] [] Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected.' [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) " '[E]ven "debatable trial tactics" do not "constitute a deprivation of the effective assistance of counsel." [Citation.]' " (People v. Weaver (2001) 26 Cal.4th 876, 928.) Effective assistance is not perfect assistance.

Here, defendant's trial counsel did not object to the impeachment of defendant's daughter with her previous statements inconsistent with her trial testimony that defendant "is not a violent person" and "would not do the kind of things that he's been charged with doing in this case . . . [] . . . [] . . . [e]specially using violence towards a female." The witness's previous statements to the contrary were admissible impeachment evidence under Evidence Code section 1101, subdivision (c). (People v. Doolin (2009) 45 Cal.4th

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390, 435-438 [evidence of defendant's previous statements properly admitted to impeach defendant's inconsistent testimony].) Counsel is not ineffective for failing to make futile objections to admissible evidence. (People v. Diaz (1992) 3 Cal.4th 495, 562.)

The propriety of the People's questions concerning defendant's daughter's previous statements that defendant was defrauding the government because he was not really physically disabled initially appear to present a closer question. This argument was not directly addressed by the People, but the court's review of the record reveals defendant's daughter testified at trial that she believed her father was, in fact, disabled and that she had no reason to believe otherwise. Thus, trial counsel cannot be faulted for failing to object where the witness's previous statements to the contrary were admissible under Evidence Code section 1101, subdivision (c). (People v. Doolin, supra, 45 Cal.4th at pp. 435-438; People v. Diaz, supra, 3 Cal.4th at p. 562.)

The judgment is affirmed.

/s/_________
Blease, Acting P. J.

We concur:

/s/_________
Murray, J.

/s/_________
Renner, J.

Footnotes:

^1. Undesignated statutory references are to the Penal Code.