4DCA Division 2 Oral Argument 2026/02/03 Morning Session - Feb 03, 2026

argument

4DCA Division 2 Oral Argument 2026/02/03 Morning Session

California Fourth District Court of Appeal, Division Two 4h 8m 7 chapters transcribed 8 days ago official recording ↗

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Transcript generated automatically by AI and may contain errors.

What does the court’s opening introduce and who appears for the first case (Cortez)?

Manuel Ramirez 7:48

There are actually a lot of people in the courtroom by our standards. Like the old days. Very much so. Good morning to all of

Unknown 7:54

you. Good morning.

Manuel Ramirez 7:55

Thank you. And it's always a pleasure, always an honor for me to introduce my colleagues that are appearing before you. And this is panel one on the summary index, Madam Clerk. Is that correct? Yes. And appearing before you on my left is Justice Fields. Good morning. And I normally do it by seniority. The seniority chair is vacant. He is appearing with us, albeit remotely. Justice McKinster, good morning.

Justice McKinster 8:22

Good morning, everyone. I apologize. I'm required to appear remotely.

Manuel Ramirez 8:27

Yeah. And so he's there, and I think you saw him. And he looks as good as ever. Madam Clerk, good morning. Good morning. Officer Doyle, good morning to you as well. And so with that, my name is Manuel Ramirez, and I'll preside over the entire calendar this morning. with panel members jumping on and off the bench. Madam Clerk, we have cases that have waived or are off calendar for this panel. Is it number two and number four? Do I recall

Unknown 8:55

correctly?

8:58

I believe so, yes.

Manuel Ramirez 8:59

The second case submitted. Okay. Very good. So with that, let's call case number one, the matter involving Cortez. Let's have counsel in that matter step forward, please. Welcome to the court, and again, very nice to see you. in person. Can we get the appearances for the record, please? Spell the last name, please.

Laura Babican 9:21

Laura Babican, V as in Victor, A as in Apple, V as in Victor, A as in Apple, K-I-N, for Appellant, David Cortez.

Unknown 9:33

Good morning.

Christina Murias 9:34

Good morning. Christina Murias, R-A-M-I-R-E-Z, for Respondent.

Manuel Ramirez 9:41

Did you say R-A-M-I-R-E-Z? I had a little bit of a problem following that name. So with that, counsel, are you ready to proceed? And would you like to set aside some time in order to respond?

Laura Babican 9:55

I think three minutes should be

Manuel Ramirez 9:56

good. Madam Clerk notes that. Time remaining, three minutes. With that, you may proceed.

Laura Babican 10:02

Thank you, Your Honors. This Court's tenet of opinion affirming Mr. Cortez's conviction understates both the prejudicial impact of the uncharged conduct evidence and

Christina Murias 10:14

the

Laura Babican 10:14

ineffectiveness of defense counsel's representation. This morning, however, I want to focus on two key issues regarding the ineffective assistance of counsel claim. First, that defense counsel had no sound tactical reason to elicit testimony about sexual intercourse with AP. And second, the court's take that the prejudicial impact of counsel's ineffectiveness. Defense counsel had no sound tactical reason to elicit evidence of sexual intercourse. The court's tentative opinion suggests defense counsel may have. And this was to essentially argue in closing argument that there was DNA evidence that wasn't uncovered. Appellant disagrees. When defense counsel cross-examined AP, he specifically asked, without getting into the specific language, whether they had sexual intercourse.

Laura Babican 11:09

This testimony about sexual intercourse had not previously been elicited by the prosecution. Prior to this, the prosecution had presented evidence that appellant touched AP's breasts, that there was digital penetration, and oral sex. The court's tentative opinion suggests counsel may have elicited testimony to challenge AP's credibility by arguing and closing that there was no DNA evidence to corroborate her claims. Because counsel could have made the same DNA argument based on the evidence of oral copulation or digital penetration already in the record, I think this comes back to there was no sound practical reason. In this case, eliciting testimony about sexual intercourse was objectively unreasonable because the evidence was highly inflammatory and prejudicial.

Laura Babican 12:02

The same DNA argument could have been made based on the oral copulation evidence already in the record and the digital penetration as well. The testimony introduced the more serious form of sexual misconduct unnecessarily escalating the severity of the uncharged conduct. Secondly, there is a reasonable probability of a different result.

Justice Fields 12:25

Council, I'm not saying it's not more serious, but certainly what we had before already was very serious.