What is the test for failing to call an expert witness to support appellant's testimony that he never fired the gun from his car?

California, United States of America


The following excerpt is from People v. Carter, G057842 (Cal. App. 2020):

fired from his car. But it is purely speculative as to whether any such expert exists. For all we know, defense counsel did attempt to find an expert witness on this topic but came up empty-handed. Because the record is silent on this issue, we cannot say defense counsel was derelict for failing to call an expert witness to support appellant's testimony that he never fired the gun from his car. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)

Even if she was, it is debatable whether such testimony would have carried the day in light of the victims' testimony to the contrary. (See CALCRIM No. 332 [the jury is not required to accept the opinion of an expert as true or correct].) Therefore, appellant's claim also fails for lack of prejudice. (Strickland v. Washington (1984) 466 U.S. 668 [a defendant alleging ineffective assistance of counsel must not only prove deficient performance but also resulting prejudice by showing it is reasonably probable he would have obtained a more favorable result at trial absent counsel's alleged errors].)

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