Unpublished Disposition, 904 F.2d 710 (9th Cir. 1990)

MEMORANDUM^** 

The district court held that Brewer failed to establish his ineffective assistance of counsel claim. We affirm.

Greg Ainsworth was shot and killed in his home. His wife, Cheryl, was also shot, but lived. Cheryl identified Brewer as one of the assailants. Brewer was charged with murder and attempted murder. At the state court trial, Brewer's counsel told the jury: "The two men that came there to Greg Ainsworth's house came there with the specific intent to kill, to assassinate him, and they came there with the intent to get rid of any possible witnesses." Counsel proceeded to argue that: (1) Brewer was not one of the two men, (2) Brewer had no motive to assassinate Ainsworth, (3) Brewer had an alibi, and (4) the witnesses had mistakenly identified Brewer. Brewer was convicted of murder and attempted murder with great bodily injury. Brewer filed a habeas corpus petition. He asserted that he had ineffective assistance of counsel because counsel improperly conceded the issue of intent to the jury. Thus, Brewer argues that counsel relieved the prosecution of its burden of proving all of the elements of murder resulting in a Sandstrom error. See Sandstrom v. Montana, 442 U.S. 510 (1979). The district court denied Brewer's petition. Brewer, pro se, timely appealed.

The issue is whether Brewer's counsel was ineffective by choosing a defense strategy that waived the issue of intent--an element of the offenses. To succeed on an ineffective assistance claim, Brewer needed to meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, Brewer had to show that his counsel's performance was deficient; that is, that counsel's performance fell below a standard of reasonableness defined as within the range of competence demanded of attorneys handling criminal cases. Id. at 687-88. Second, Brewer had to show that actual prejudice to the defense flowed from the deficient performance; that is, but for counsel's errors the result of the proceeding would have been different. Id. at 687, 691-92. Brewer failed to meet the Strickland standards.

First, Brewer failed to prove that counsel's performance was deficient. While counsel did not dispute that a murder occurred, he did argue that Brewer was not the one who did it. The district court considered this strategy and accepted the magistrate's findings, that: "given the people's evidence, [Brewer's] only hope was to challenge his identification ... counsel properly chose this tactic." Such a finding is in accord with the Supreme Court:

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland, 466 U.S. at 689 (citation omitted).

Brewer's defense was that he was not present at the scene and that he had been erroneously identified as the murderer. It would be very difficult to make a credible argument to the jury that he was not there, but that if he was there, he didn't intend to kill the victims. The counsel had to make a tactical decision and the choice was reasonable. Brewer, therefore, failed to establish the first prong of Strickland. See Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985).

Second, Brewer needed to prove that had counsel not conceded the issue of intent, the outcome of the trial would have been different. Here, the district court held: "the undisputed facts show that what happened in the apartment on the fatal night was a planned execution carried out by two men who had prearranged to leave behind no adult witnesses." Had counsel not conceded intent, there is no reason to believe the outcome would have been any different. Brewer, therefore, also failed to meet Strickland 's second prong.

In a reasonable tactical decision, counsel removed the question of intent from the jury. This does not result in a Sandstrom error. See Connecticut v. Johnson, 460 U.S. 73 (1983).

AFFIRMED.