The opinion of the court was delivered by: Hull,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Lisa Ann Platz petitions for a writ of habeas corpus challenging her conviction for the 2001 murder of her then nine-year-old daughter. Petitioner contends her trial counsel provided constitutionally ineffective assistance when he failed to pursue a withdrawal defense to the prosecution's felony murder theory and failed to take adequate steps to make sure she testified at trial. We conclude the evidence presented by petitioner in support of her petition fails to establish she was prejudiced by any alleged ineffective assistance and deny the petition.
The tragic facts of this case are taken from our opinion on the direct appeal of petitioner's conviction, as supplemented by the appellate record, of which we take judicial notice (Evid. Code, § 452, subd. (d)), and the evidence presented in connection with petitioner's habeas corpus petition in the superior court.
Petitioner and Jose Aramburo dated for a while and together had a daughter, Rebbeca, who was born on April 4, 1992. Not long thereafter, their relationship deteriorated and Jose moved out. (People v.Platz (2006) 136 Cal.App.4th 1091, 1093 (Platz).) Jose provided limited financial support for Rebbeca and, shortly after January or February 1994, petitioner moved to Alaska, where her family lived. (Id. at p. 1094.)
"By all accounts, [petitioner] was a devoted and effective parent. Rebbeca thrived. Jose knew they had moved to Alaska and he knew [petitioner]'s parents' telephone number. He never contacted [petitioner] and Rebbeca. In March 1995 his new girlfriend, Angelina Haggard, gave birth to twin boys who lived only a few minutes. Angelina married Jose five months later." (Platz, supra, 136 Cal.App.4th at p. 1094.)
Petitioner married Robert Platz in 1996, and he established a close relationship with Rebbeca. Robert attempted to adopt Rebbeca, but Jose resisted and the adoption was denied. Jose initiated court proceedings in Alaska to obtain custody and visitation of Rebbeca, but did not serve petitioner with notice of the action until nine months later. (Platz, supra, 136 Cal.App.4th at pp. 1094, 1095.)
"In the meantime, [petitioner]'s relationship with Robert [Platz] ended and she began dating James Csucsai. Together they left Alaska, looking for work and a new life. They traveled for six months, then settled in Ohio, living across the street from James's sister. [Petitioner] was accepted to a business school and, having scored highly on her admissions test, was offered a work study job as well as admission." (Platz, supra, 136 Cal.App.4th at p. 1094.) Rebbeca continued to flourish. (Ibid.)
"Then, to [petitioner]'s shock and surprise, Jose resurfaced. Although Rebbeca had not seen or heard from her father for five years, in April 1999 Jose served [petitioner] with a verified petition for determination of custody. . . . In May [petitioner] appeared in propria persona to obtain an extension of time to file an answer, but then failed to formally respond to the petition.
"In July the Alaska court entered a temporary visitation order. On August 4, 1999, a default was entered at Jose's request. [Petitioner] participated in a telephone hearing on September 8. When asked if she would follow a court order to allow visitation, she candidly, but naively, responded: 'I would love to say, yes, if I believed that it would not damage her. But I don't know that. I cannot predict the future and I do not know how the child will react.'" (Platz, supra, 136 Cal.App.4th at p. 1095.)
Petitioner failed to follow the Alaska court's order to integrate Jose into Rebbeca's life, and her attitude toward Jose compromised her legal position in the custody case. On October 29, 1999, the Alaska court awarded custody to Jose. (Platz, supra, 136 Cal.App.4th at p. 1095.) "Just before Christmas, Jose, whom Rebbeca had not seen since she was a toddler, and her new stepmother, whom she had never met, flew to Ohio to take her from her mother. [Petitioner] tried to remove Rebbeca from school before their arrival. The school authorities called the police. [Petitioner] and Rebbeca were taken to the police station, where Jose and his wife took custody of Rebbeca." (Ibid.)
The Alaska Supreme Court ultimately reversed the custody decision, and the authorities commenced a custody investigation. (Platz, supra, 136 Cal.App.4th at p. 1095.) By this time, Rebbeca had lived with the Aramburos for about a year. Rebbeca "expressed her desire to live with her mother to every counselor and investigator who interviewed her. Yet she was only allowed to speak to her mother four times a week, and often the Aramburos were not home at the designated times for the calls." (Ibid.)
"Rebbeca spent the summer of 2000 with her mother. [Petitioner] took her to counseling to help her adjust to the change in custody. This counselor repeated what every other professional reported: the mother and child had a very strong bond and Rebbeca wanted to live with her mother. [Petitioner] returned Rebbeca to Washington at the end of the summer as ordered." (Platz, supra, 136 Cal.App.4th at p. 1095.)
In light of petitioner's bitterness toward Jose for uprooting Rebbeca, Jose's stable family relationship with his new wife and another child, and the fact petitioner and James moved around frequently, court investigators recommended that Jose retain custody. (Platz, supra, 136 Cal.App.4th at p. 1096.)
Rebbeca spent her 2001 spring break from school with petitioner. At the end of the break, petitioner failed to return Rebbeca to Jose "because Rebbeca 'begged her' not to." (Platz, supra, 136 Cal.App.4th at p. 1096.) In June 2001, petitioner was arrested for interfering with Jose's custody rights. (Ibid.)
"Life continued to unravel for [petitioner] and James. James was embroiled in his own custody battles with his ex-wife. James, a veteran, owned at least four guns. With a history of being bipolar and delusional, his family became concerned that he was highly suicidal. In fact, his sister had surreptitiously removed guns from his car and hidden them in her house. Her concern proved prescient. In an angry e-mail James sent to his ex-wife on July 10, 2001, he warned that her desire to see him destroyed would backfire: '[D]on't wish for somethiong [sic] you may not really want to see . . . . [W]hen I go, I'm going out big.' It was only [petitioner] and his kids, according to James at the time, who had kept him from falling 'over the edge.'" (Platz, supra, 136 Cal.App.4th at p. 1096.)
On July 17, 2001, the family court ordered Lisa to have no further contact with Rebbeca. (Platz, supra, 136 Cal.App.4th at p. 1096.)
"On August 13 Lisa and James, both armed, approached Rebbeca and her stepmother as they were getting out of their car at day care. Rebbeca ran to her mother and hugged her after Lisa told her to get into the car. James threatened, '[I]f he comes looking for her, I'll put a bullet through his head.' They drove away." (Platz, supra, 136 Cal.App.4th at p. 1096.)
For the next several weeks, petitioner, James and Rebbeca traveled through various states, camping along the way. At a library in Colorado, petitioner noticed James communicating with his sister via the internet. She later confronted him about it, complaining that such communications might be used to trace them. An argument ensued at their campsite and James assaulted petitioner, throwing her to the ground, sitting on her and slamming her head against the ground. A few minutes later, James got up and walked away. Later, James returned and asked how petitioner had injured herself. When petitioner told James he had done it, he said he did not remember doing so.
Petitioner decided she and Rebbeca needed to get away from James and, while James was off collecting firewood, petitioner and Rebbeca gathered some things and started walking toward a nearby town. However, James caught up with them after a short while and brought them back to the campground.
The next day, the three left their campsite and continued traveling. After a week or so, they arrived at a campground in South Lake Tahoe.
Their campsite was discovered by officers of the South Lake Tahoe Police Department at 1:00 a.m. on September 21. (Platz, supra, 136 Cal.App.4th at p. 1097.) "Within a half hour, police officers surrounded the tent and shined lights, and the police dog started barking. An officer shouted, 'There's no way out. Come on out,' and 'If you try to flee, the dog will get you.' Rebbeca started to cry. James unzipped the tent, yelling 'Get the fuck away,' and the officer saw [petitioner] with a 'concerned and surprised look on her face' and a 'very frightened' Rebbeca in the back corner of the tent." (Platz, supra, 136 Cal.App.4th at p. 1097.)
Evidence about what happened in the tent during the next nine hours is unclear. "Officer Robert Heindl testified on direct examination that shortly after the confrontation began, [petitioner] said: '"We're all prepared to die. We're all going to die in here. It's going to be your fault that we all die."' But on cross-examination, [the officer] revised [petitioner's] statement, claiming that she actually said: '"You're going to kill us if you don't go away. If you don't leave, we're all going to die."' Sergeant Terry Daniels, a 20-year veteran and the watch commander on the night of the murder, was standing about 15 feet from the tent and never heard [petitioner] speak. He attributed the statement 'We're all going to die here' to James." (Platz, supra, 136 Cal.App.4th at p. 1098.)
At some point early in the standoff, petitioner realized James had left his guns in his car. Later, James produced a knife from his backpack and cut a hole in the bottom of the tent in order to move the tent toward the car. Somewhere between 1:45 and 2:30 a.m., Officer Heindl heard a ripping sound from inside the tent and saw the tent lift off the ground and begin moving toward James's car. An officer yelled, "'Stop. We're going to shoot,'" the police dog barked, and radios started going off. Officers searched the car and found two handguns and an assault rifle. (Platz, supra, 136 Cal.App.4th at p. 1098.)
"Again, the officers differ on what happened next. Heindl testified that Rebbeca screamed, her screams became muffled, and she kicked the wall of the tent on the northwest corner. Officer Alfredo Ramirez testified the scream occurred before the tent was set down while everyone inside was yelling, and that the tent bulged mostly on the east and south sides. Heindl asked, 'Why was she screaming?' He testified that [petitioner] responded the dog was scaring Rebbeca, but that the dog did not bark until after the scream. On cross-examination, he admitted that the dog had barked when the tent started moving and the officers began shouting. The officer in charge of the dog testified the dog had barked a lot from the very beginning of the police action. This same officer also testified that the movement of the tent preceded the scream by an hour or an hour and a half. By Heindl's calculations, the scream occurred by 2:30 a.m., whereas another officer recorded that the scream occurred at 3:56 a.m. An experienced crisis negotiator, who took position behind the white car at 4:54 a.m., was certain he heard Rebbeca whining at least an hour after that time.
"An FBI agent who had been trained in hostage negotiations but had never actually negotiated a release tried to lower James's level of 'emotionality.' James, according to this agent, expressed anger at his ex-wife, Jose, and the Alaska court system. He professed his love for [petitioner] and Rebbeca and informed the agent, '"We're trying to decide whether to kill ourselves."' The police officer who relieved the agent, a woman, was unable to establish any rapport with James. After an hour, the FBI agent resumed negotiations. When James's voice became faint and they heard gurgling sounds around 10:30 a.m., the SWAT team stormed the tent." (Platz, supra, 136 Cal.App.4th at pp. 1098-1099.)
The SWAT team "found the lifeless body of nine-year-old Rebbeca with rigor mortis already established. She was lying under her mother's left side, covered by blankets. Their heads were close, facing each other. [Rebbeca's] neck had been slashed with a knife. James was bleeding severely from the neck, and Lisa was bleeding from both wrists. Both [petitioner] and James were still alive." (Platz, supra, 136 Cal.App.4th at p. 1097.)
James later hanged himself in his jail cell. Before doing so, he "made a variety of incriminating statements. On November 22 he wrote, 'They say that no one who stands poised at the doorway to eternity steps through it with a lie on his lips. They say that deathbed confessions are always to be believed. And this letter is mine. [¶] . . . [T]he only image I have of it all was of a pair of hands, a knife and an innocent child laying [sic] lifeless beneath me. My next image was of you laying [sic] next to her, you were soaked in blood, your wrist was cut, my neck was bleeding. You looked very frightened. I think you were frightened of me . . . .'
"A few days later, prison personnel moved a man into James's cell who bore some resemblance to Jose Aramburo. A deputy testified that James got very agitated and said: '"He looks just like the man who was responsible for me being here. I can't stay in there with that Mexican. I killed a little person because of a man who looks just like him. You need to ...