When will a jury find counsel incompetent in failing to oppose the admission of evidence in a criminal case on chain of custody grounds?

Even if we concluded defendant is correct that there was a flaw in the chain of custody, the record does not establish that counsel were incompetent in failing to object on this ground to the admission of the evidence. "[T]he mere fact that counsel, had he [or she] chosen another path, 'might' have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendant's burden of demonstrating [incompetence]...." (People v. Jennings (1991) 53 Cal.3d 334, 379, 279 Cal.Rptr. 780, 807 P.2d 1009.) Rather, as we have explained, a conviction will not be reversed unless the record on appeal demonstrates counsel had no rational

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As we observed in People v. Diaz, supra, 3 Cal.4th 495, 11 Cal.Rptr.2d 353, 834 P.2d 1171, it is common and proper for counsel to stipulate to the chain of custody. (Id. at p. 560, 11 Cal.Rptr.2d 353, 834 P.2d 1171.) Flaws [12 Cal.4th 446] in the chain are often mere technical omissions that competent counsel may consider unworthy of extended debate. (Ibid.) In fact, an objection on chain of custody grounds may be less productive for defendant than a decision to permit the prosecutor to establish a shoddy chain of custody that can be pointed out to the jury in the hope of giving rise to a reasonable doubt. We conclude defendant has failed to show counsel were incompetent for omitting to move to suppress the boxer shorts on chain of custody grounds.

Defendant also faults counsel for failing to argue to the jury that the evidence of the boxer shorts was unreliable. We reject the claim. Counsel did seek to undermine the impact of the boxer shorts evidence during cross-examination of prosecution witnesses by establishing that the shorts were actually discovered in the crime lab, not in defendant's home, and by eliciting testimony that the blood on the shorts was consistent with the blood of four million residents of Los Angeles County. The impeachment value of these points was relatively slight, however. We cannot fault defense counsel for failing to argue the matter in closing, when the primary defense was that defendant committed the homicides but lacked the mental state necessary to establish murder because of gross excess in ingesting drugs. (See People v. Freeman, supra, 8 Cal.4th at p. 499, 34 Cal.Rptr.2d 558, 882 P.2d 249 [difficult to defend simultaneously on grounds of total innocence and lack of intent].)

3. Closing argument.