People v. Hernandez CA5

Filed 10/27/26 P. v. Hernandez CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F089335 Plaintiff and Respondent, (Super. Ct. No. VCF377181) v. JOSHUA ISAAC HERNANDEZ, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  Defendant and appellant Joshua Isaac Hernandez appeals following his conviction and sentencing for committing 32 crimes relating to child molestation and possession of child pornography. He claims trial counsel’s failure to object to the amendment of the information to conform to trial evidence constituted ineffective assistance of counsel (IAC), and he seeks reversal of the seven added counts. We find no error and affirm the judgment. INTRODUCTION AND PROCEDURAL BACKGROUND In 2019, defendant was arrested and charged with committing 20 sex offenses against his underage niece over a period of years, when she was between the ages of eight and 12 years old. In 2024, following amendment of the information to conform to proof at trial, defendant was convicted by jury of one count of sexual intercourse or sodomy of a child 10 years of age or younger, 11 counts of oral copulation or sexual penetration of a child 10 years of age or younger, 19 counts of committing a lewd or lascivious act on a child under 14 years of age, and one count of possessing child pornography. (Pen. Code, §§ 288.7, subds. (a) [count 1], (b) [counts 2–12], 288, subd. (a) [counts 13–31], 311.11, subd. (a) [count 32].)1 The jury also found that as to counts 13 through 28, defendant had substantial sexual conduct with a victim under 14 years of age. (§ 1203.066, subd. (a)(8).) In a bifurcated proceeding, the court found the following aggravating sentencing factors true: “The victim was particularly vulnerable”; “The manner in which the crime was carried out indicates planning, sophistication, or professionalism”; and “The defendant took advantage of a position of trust or confidence to commit the offense.” 1 All undesignated statutory references are to the Penal Code. 2. (Cal. Rules of Court, rule 4.421(a)(3), (8), (11).) Defendant was sentenced to a total term of 145 years to life in prison.2 Defendant timely appealed. His sole claim on appeal is that trial counsel’s failure to object to amendment of the information during trial to add seven additional charges under section 288.7, subdivision (b), constituted IAC. The People dispute any entitlement to relief and contend that because the amended charges were supported by evidence adduced at the preliminary hearing, defendant cannot show the trial erred in permitting the amendment or that trial counsel rendered IAC by failing to object. (§ 1009.) We find no error and affirm the judgment. FACTUAL SUMMARY3 M.C. lived with her grandparents when she was between the ages of six and 12 years old. Defendant, who is M.C.’s uncle and approximately 17 years older than she is, also lived there, along with M.C.’s younger brother, older brother, and older cousin. M.C. had her own bedroom on the second floor of the house and defendant lived in his own room in the garage. Although they were forbidden by her grandmother from entering one another’s rooms, M.C. did not trust or confide in her grandparents, and defendant was the adult she relied on to take care of her. She described him as the most important person in her life at the time. Defendant took M.C. to school and picked her up, and they did ordinary things such as play video games, watch movies, and draw. However, the entire time she lived with her grandparents, the two also had a relationship she described as romantic. She 2 The trial court imposed a mandatory term of 25 years to life on count 1, consecutive mandatory terms of 15 years to life on counts 2, 3, 6 through 8, and 10 through 12; concurrent terms of 15 years to life on counts 4, 5, and 9; concurrent middle terms of six years on counts 13 through 30, and a concurrent middle term of two years on count 32. 3 Given the nature of defendant’s appellate claim, we include only a limited summary of the trial evidence. 3. testified they said they loved each other, and because they both knew the relationship was wrong due to her age and their familial relationship, they talked about defendant either adopting her or marrying her. The incidents were so numerous that M.C. had difficulty testifying in specific detail about dates, but she testified that they French kissed all the time; defendant touched her breasts with his hands, mouth, and penis on a daily basis; she saw his penis and put her mouth on his penis more than 100 times; he put his mouth on her vagina; he put his finger in her vagina more than 50 times before she was 11 years of age and more than 50 times after she turned 11 years of age; he put his finger in her anus more than five times before she turned 11 years of age; he put his penis in her anus one time; and they had sexual intercourse one time. She also used a hairbrush handle to masturbate and after telling defendant about it, he used the hairbrush to penetrate her vagina on more than one occasion. Defendant was arrested on March 1, 2019. That morning, school officials reported a vehicle parked near the school with two people inside. A responding police officer found defendant and M.C. in the backseat of the car. Defendant identified himself as M.C.’s uncle. After M.C. was taken to school and interviewed, she eventually disclosed engagement in multiple sex acts with defendant, including sexual intercourse, oral copulation, and sexual penetration. That day, officers took defendant into custody following a vehicle stop and then executed a search warrant of his residence. In defendant’s room, officers located underwear, bras and other clothing belonging to M.C.; empty condom boxes; contraceptive strips; pregnancy tests; a lock of M.C.’s hair; a Valentine’s Day box; and handwritten notes. They also seized computers, a cell phone, a USB drive, and a Go Pro camera. Defendant’s laptop computer contained multiple photos and videos of him engaging in sexual conduct with M.C., and M.C.’s cell phone contained text messages of a sexual nature the two exchanged through a Discord app. 4.  DISCUSSION I. Trial Court Proceedings This case proceeded to trial by information charging defendant with one count of sexual intercourse or sodomy of a child 10 years of age or younger, four counts of oral copulation or sexual penetration of a child 10 years of age or younger, 20 counts of committing a lewd or lascivious act on a child under 14 years of age, and one count of possessing child pornography. Prior to the prosecution’s last witness, a psychologist who testified about Child Sexual Abuse Accommodation Syndrome, the prosecutor notified the court and defense counsel that she planned to file an amended information to conform to proof at trial. She subsequently filed an amended information alleging seven additional counts of oral copulation or sexual penetration of a child 10 years of age or younger. Defense counsel did not object and stated he would reserve any arguments for a future court date, after he reviewed the amended information. Counsel did not thereafter object to the new charges, which were tied to specific dates by videos of the charged acts. Defendant now claims that trial counsel’s failure to object to the amendment deprived him of his right to the effective assistance of counsel. Defendant does not dispute that the preliminary hearing evidence established a basis for the charges, but he argues that had counsel objected, the trial court would have been required to deny the motion to amend. II. Legal Principles To prevail on a constitutional claim of IAC, a defendant “‘must satisfy a two- pronged showing: that counsel’s performance was deficient, and that [he] was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.’” (People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff), quoting People v. Alexander (2010) 49 Cal.4th 846, 888; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “‘[T]he standard for judging counsel’s representation is a most deferential one.’ (Harrington v. 5. Richter (2011) 562 U.S. 86, 105 (Richter).) We ‘must indulge a “strong presumption” that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.’ (Bell v. Cone (2002) 535 U.S. 685, 702.) ‘Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.’ (Richter, at p. 105.)” (In re Long (2020) 10 Cal.5th 764, 773.) Therefore, a “defendant’s burden [is] ‘difficult to carry on direct appeal,’ as a reviewing court will reverse a conviction based on [IAC] on direct appeal only if there is affirmative evidence that counsel had ‘“‘no rational tactical purpose’”’ for an action or omission.” (People v. Mickel (2016) 2 Cal.5th 181, 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.) “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Strickland, supra, 466 U.S. at p. 690; accord, People v. Barrett (2012) 54 Cal.4th 1081, 1105.) III. Error Not Shown A. Section 1009 A prosecutor’s right to amend the information is governed by statute. “An information may be amended ‘for any defect or insufficiency, at any stage of the proceedings,’ so long as the amended information does not ‘charge an offense not shown by the evidence taken at the preliminary examination.’ (§ 1009.) ‘If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.’ [Citation.] If there is no prejudice, an amendment may be granted ‘up to and including the close of trial.’” (People v. Goolsby (2015) 62 Cal.4th 360, 367–368; accord, People v. Arevalo- Iraheta (2011) 193 Cal.App.4th 1574, 1580–1581 (Arevalo-Iraheta); People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters).) “The court has broad discretion to deny 6. leave to amend, and must do so if the amendment would prejudice the defendant’s substantial rights.” (People v. Birks (1998) 19 Cal.4th 108, 129.) “‘The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.’” (People v. Hamernik (2016) 1 Cal.App.5th 412, 424; accord, Arevalo-Iraheta, supra, 193 Cal.App.4th at pp. 1580–1581; People v. Bolden (1996) 44 Cal.App.4th 707, 716.) B. Mancebo, Anderson, and Vaquera4 Defendant relies on two different lines of caselaw to support his claim that counsel’s failure to object was constitutionally deficient because the mid-trial amendment deprived him of fair notice. First, defendant concedes “the preliminary hearing evidence established a factual basis for the seven new charges,” and he states all but one of the new charges was based on videos from his computer that came into evidence during that hearing.5 However, he argues that is only “one of several requirements” and does not “substitute for the constitutional imperative of fair notice.” Defendant cites Mancebo, Anderson, and Vaquera for support, but those cases, all of which related to sentencing allegations, are readily distinguishable. Vaquera explained, “A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. (People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson II); People v. Mancebo (2002) 27 Cal.4th 735, 747 (Mancebo).) In the sentencing enhancement context, the touchstone of fair notice is whether the accusatory pleading enables the defense to predict the sentence the defendant faces if convicted. To enable a 4 People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo); People v. Anderson (2020) 9 Cal.5th 946 (Anderson II); In re Vaquera (2024) 15 Cal.5th 706 (Vaquera). 5 Counts 3 through 7 and counts 10 and 11 were newly added charges. Video evidence was introduced to support counts 2 through 11 and a photograph supported count 12. 7. defendant to make this prediction, an accusatory pleading must provide the defendant with fair notice of the factual basis on which the prosecution is seeking an increased punishment and of ‘the potential sentence.’” (Vaquera, supra, 15 Cal.5th at p. 717, quoting Anderson II, at p. 956.) In Mancebo, the defendant was charged with 10 sex-related offenses committed against two victims on two separate occasions. (Mancebo, supra, 27 Cal.4th at p. 740.) As to all counts, the amended information alleged personal use of a gun under section 12022.5, subdivision (a). (Mancebo, supra, at p. 740.) Within the meaning of the One Strike law, an alternative sentencing scheme, the amended information alleged kidnapping and gun-use special circumstances as to six forcible sex offenses, and alleged gun use and tying or binding the victim as to two other forcible sex offenses. (Mancebo, supra, at p. 740, citing § 667.61, subds. (a), (e)(1), (4), (6).)6 Although the offenses involved multiple victims, the amended information did not allege a multiple victims special circumstance under the One Strike law. (Mancebo, supra, at p. 739, citing § 667.61, subd. (e)(5).)7 “[T]he One Strike law expressly mandated that the circumstance of gun use first be used in the calculation of the ‘minimum number of circumstances’ necessary to impose the One Strike indeterminate terms” (Mancebo, supra, at p. 738, citing § 667.61, subd. (f)), rendering “gun use … unavailable as a basis for imposing the 10–year enhancements under section 12022.5[, subdivision ](a)” (Mancebo, supra, at p. 738). However, “[t]he court imposed the section 12022.5[, subdivision ](a) gun-use enhancements under counts 3 and 9 in the belief it could substitute the multiple victim circumstance (§ 667.61, subd. (e)(5)) for the expressly pleaded gun-use circumstances in 6 Effective September 9, 2010, section 667.61, subdivision (e)(4) was renumbered to subdivision (e)(3), and subdivision (e)(6) was renumbered to subdivision (e)(5). (Assem. Bill No. 1844 (2009–2010 Reg. Sess.) § 16.) 7 Effective September 9, 2010, section 667.61, subdivision (e)(5) was renumbered to subdivision (e)(4). (Assem. Bill No. 1844 (2009–2010 Reg. Sess.) § 16.) 8. order to satisfy the ‘minimum number of circumstances’ requirement for One Strike sentencing (§ 667.61, subd. (f)), thereby making gun use available as a basis for imposing the section 12022.5[, subdivision ](a) enhancements.” (Id. at p. 740.) The California Supreme Court concluded, “[T]he trial court erred at sentencing when it purported to substitute the unpled multiple victim circumstances for the properly pleaded and proved gun-use circumstances in support of the One Strike terms under counts 3 and 9. The gun-use enhancements were then improperly imposed under those counts in contravention of the provisions of section 667.61, subdivision (f).” (Mancebo, supra, 27 Cal.4th at p. 754.) The court also concluded that doing so was a violation of the defendant’s basic due process right to fair notice. (Id. at pp. 739, 753.) Subsequently, in Anderson II, the prosecution amended the information during trial to add an attempted robbery count, which was not challenged. (Anderson II, supra, 9 Cal.5th at p. 950.) The prosecution also, it appeared from the record, requested a jury instruction after the close of evidence on the 25-year-to-life sentence enhancements under section 12022.53, subdivision (e), based on vicarious liability. (Anderson II, supra, at p. 951.) However, the information did not provide statutorily adequate notice of the enhancements or comport with due process; the prosecution did not seek, and was not granted, leave to amend the information; and a limited exception recognized for informal, unwritten amendment did not apply. (Id. at pp. 955, 958.) The court found the error prejudicial where “the notice given was too late to cure the defective pleading.” (Id. at p. 964.) Finally, in Vaquera, the defendant learned the prosecution intended to seek a sentence of 25 years to life under the One Strike law only days before the sentencing hearing. (§ 667.61, subd. (j)(2).) The court concluded the defendant did not receive fair notice because “[n]othing in the record here suggests [he] learned of his sentencing exposure on count 2 in time for him to take it into account in fashioning his defense strategy.” (Vaquera, supra, 15 Cal.5th at p. 726.) The court observed “the same 9. prosecutor filed the information, conducted the trial, and submitted both sentencing briefs. In the almost two years between when the prosecution filed the information and when it filed its second sentencing brief, it did not seek to amend the information or otherwise clarify it was seeking sentencing under [section 667.61,] subdivision (j)(2) rather than subdivision (b). Then, in its initial sentencing brief, the prosecution affirmatively asked the court to impose a sentence of 15 years to life on count 2 pursuant to subdivision (b). It was not until the prosecution filed its second sentencing brief, three months after the jury returned its verdict, that it first made clear its intent to seek 25 years to life under subdivision (j)(2).” (Id. at p. 727.) We do not find these cases of assistance to defendant. “‘“[I]t is axiomatic that cases are not authority for propositions not considered”’” (People v. Gray (2023) 15 Cal.5th 152, 169, fn. 5, quoting People v. Avila (2006) 38 Cal.4th 491, 566), and none of the cases involved a challenge to the amendment of a pleading during trial. To the contrary, the sentencing allegations were not pled, the defendants did not have notice of them prior to the close of evidence, and at no point did the prosecution provide notice via a request to amend the pleading. (Anderson II, supra, 9 Cal.5th at p. 951 [first indication when jury instructed on enhancement at the prosecutor’s request]; Vaquera, supra, 15 Cal.5th at p. 727 [notice via second sentencing brief filed mere days before sentencing hearing]; Mancebo, supra, 27 Cal.4th at p. 753 [notice at sentencing hearing].) Notably, the Vaquera court commented, “This would be a different case if the prosecution had provided Vaquera timely actual notice that it was seeking a 25-year-to-life sentence on count 2 and the factual basis on which it was seeking that sentence, despite its failure to provide such notice in the information.” (Vaquera, supra, at p. 727, italics added, citing People v. Houston (2012) 54 Cal.4th 1188, 1227 [the defendant was on adequate notice of the length of his sentence where the trial court commented on it during the defendant’s presentation of trial evidence].) 10.  C. Juvenile Cases Defendant also relies on juvenile cases for the proposition that “[n]o due process violation occurs when the prosecutor makes a midtrial amendment which charges an offense necessarily included in a crime already charged,” but “due process does not allow the prosecutor to add new charges which are not necessarily included, unless the minor consents to those new charges.” (Citing In re Robert G. (1982) 31 Cal.3d 437, 442–443 & 445 & In re Johnny R. (1995) 33 Cal.App.4th 1579, 1583–1584; accord, In re Roy C. (1985) 169 Cal.App.3d 912, 914–915). Defendant argues, “There is no reason why a different rule should apply in adult criminal proceedings.” Defendant’s argument disregards the fact that section 1009, which applies in criminal cases but not juvenile cases (In re Man J. (1983) 149 Cal.App.3d 475, 480–481), expressly provides that an information may not be amended “so as to charge an offense not shown by the evidence taken at the preliminary examination” (§ 1009, italics added). The preliminary hearing “‘is the touchstone of due process notice to a defendant.’” (People v. Peyton (2009) 176 Cal.App.4th 642, 657–658 (Peyton), quoting People v. Pitts (1990) 223 Cal.App.3d 606, 904–905.) While “a juvenile in a delinquency matter is entitled to the same constitutional guarantees of due process as those accorded an adult criminal defendant” (In re Jesse P. (1992) 3 Cal.App.4th 1177, 1182), “juvenile court procedures [need not] be identical to those employed in adult criminal proceedings” (ibid.). Relevant to defendant’s argument, “a juvenile does not have the right to a preliminary hearing .…” (Ibid.) Defendant fails to explain why this distinction does not foreclose his reliance on juvenile caselaw, and we find his position unpersuasive. (See Peyton, supra, at p. 654, italics added, citing Winters, supra, 221 Cal.App.3d at pp. 1006–1007 [“[W]hen no preliminary hearing is held, the defendant may not be charged with additional crimes not charged in the pleading to which he waived his right to a preliminary hearing. Allowing such an amendment violates section 1009, even if the amendment did not prejudice the defendant or the defendant had notice of the facts 11. underlying the new charges.”]; accord, People v. Rogers (2016) 245 Cal.App.4th 1353, 1360–1361.) D. No Error Shown “Counsel is presumed competent and informed as to applicable constitutional and statutory law.” (People v. Barrett, supra, 54 Cal.4th at p. 1105.) “‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish [IAC].’” (People v. Carrasco (2014) 59 Cal.4th 924, 985, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 502.) Here, counsel elected not to object to amendment of the information after taking the opportunity to review it, and nothing in the record affirmatively shows there was no tactical reason for the omission. To the contrary, the evidence supporting the new charges was introduced at the preliminary hearing and the charges did not require a new or different defense theory, as defendant concedes. Defendant does not explain how a delay would have benefitted him, had counsel successfully objected on the ground that defendant’s substantial rights were affected. (§ 1009.) This was an exceptionally strong prosecution case. The new charges were supported by videos defendant took of himself perpetrating sexual acts on M.C., and there was no dispute over the identities of the individuals in the videos or that they were stored on defendant’s computer. Further, M.C. was 18 years old at the time of trial, she was not a reluctant witness despite her discomfort with the subject matter, and her testimony was corroborated through sexually explicit text messages, photographs, and videos. Although defendant asserts that the trial court would have been required to deny amendment, his position does not find support in the law, which has long recognized that “a defendant’s due process rights are not prejudiced by amendment of the information, and the trial court may permit amendment of the accusatory pleading ‘at any stage of the proceeding, up to and including the close of trial,’ so long as [the] defendant’s substantial rights are not prejudiced.” (People v. Fernandez (2013) 216 Cal.App.4th 540, 554, quoting People v. Graff (2009) 170 Cal.App.4th 345, 361; see Peyton, supra, 176 12. Cal.App.4th at p. 654 [“the defendant may not be charged with additional crimes not charged in the pleading to which he waived his right to a preliminary hearing”].) Inasmuch as the preliminary hearing evidence supported the new charges and his trial defense was not affected, defendant fails to articulate the existence of any prejudice to him that would support his claim that trial counsel erred by failing to object. Defendant argues he might have made a different decision concerning a plea bargain, but this assertion finds no support in the record. Defendant must affirmatively demonstrate error, and trial counsel was familiar with the case, the prosecutor, the judge, and the proceedings. At the time of the preliminary hearing, defendant was facing a lengthy indeterminate sentence of 85 years to life, in excess of his natural life, but he had declined the prosecution’s offer of a still-lengthy 60-year determinate term and he was aware that once he elected to proceed with a preliminary hearing, the offer would be revoked.8 Although the new charges added significantly to his indeterminate sentence, we must presume trial counsel was aware of all the relevant circumstances concerning plea negotiations and would have objected, had there been grounds for a meritorious objection based on prior plea negotiations.9 Defendant’s speculative argument concerning what he might have done with respect to the plea offer does not suffice to demonstrate error by trial counsel. Defendant cites Peyton and Rogers as examples of cases where the appellate court found IAC. However, both cases involved the failure to object to amendment where the defendant waived the preliminary hearing. (Rogers, supra, 245 Cal.App.5th at p. 1357; Peyton, supra, 176 Cal.App.4th at p. 649.) Rogers explained, “It is well settled that where a defendant waives a preliminary hearing, the prosecution may not amend the 8 The record indicates the prosecution revoked the offer in October 2021, when the matter was set for preliminary hearing. 9 The record from the confidential Marsden hearing held on January 20, 2022, bears this out. (People v. Marsden (1970) 2 Cal.3d 118.) 13. information to add new charges. (People v. Peyton[, supra, at p.] 654 …; People v. Winters[, supra,] 221 Cal.App.3d [at p.] 1007 .…) This is so, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges.” (Rogers, supra, at p. 1360.) The court concluded the same principles barred amendment to add a new conduct enhancement. (Id. at pp. 1361–1366.) Under these circumstances, trial counsel’s failure to object constituted IAC. (Id. at pp. 1360– 1361; accord, Peyton, supra, at pp. 654–655.) Defendant did not waive the preliminary hearing in this case and that distinction is critical. At bottom, defendant asks us to forge a new path under the law. We decline to do so. “‘Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.’” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197, quoting Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) “[L]egal doctrine evolves over time, and appellate courts have the capability and the responsibility to recognize and explain such changes when they occur” (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308–309), but nothing in the recent decision in Vaquera, or in any other decision cited, signals a shift away from the longstanding legal principles we adhere to in resolving this appeal. (Vaquera, supra, 15 Cal.5th at pp. 727–728.) Accordingly, we conclude that defendant has not met his burden of demonstrating error by trial counsel. We need not analyze prejudice in the absence of error, but our discussion of section 1009 and error by counsel readily illustrates the absence of any discernible prejudice. (Woodruff, supra, 5 Cal.5th at p. 736 [prejudice shown where “‘there is a reasonable probability the outcome would have been different were it not for the deficient performance’”]; see Harrington v. Richter (2011) 562 U.S. 86, 112 [“[t]he likelihood of a different result must be substantial, not just conceivable”].) Therefore, we reject defendant’s claim of IAC and affirm the judgment. 14.  DISPOSITION The judgment is affirmed. MEEHAN, J. WE CONCUR: LEVY, Acting P. J. GUERRA, J. 15.