Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County Super. Ct. No. CRF19498. Eric L. DuTemple, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
OPINION
A jury convicted appellant, Steven Leon Colvin, of transportation of a controlled substance (count I/Health & Saf. Code, § 11379, subd. (a)), possession of a controlled substance (count II/Health & Saf. Code, § 11350, subd. (a)), possession of a smoking device (count III/Health & Saf. Code, § 11364), possession of a switchblade knife (count IV/Pen. Code, § 653k), possession for sale of a controlled substance (count V/Health & Saf. Code, § 11378), and possession of a controlled substance while armed with a firearm (count VI/Health & Saf. Code, § 11370.1). The jury also found true allegations in counts I and V that in committing those offenses, Colvin was armed with a firearm within the meaning of Penal Code section 12022, subd. (c)). On October 5, 2006, the court sentenced Colvin to an aggregate term of seven years eight months as follows: the middle term of three years on count I with a four-year arming enhancement in that count, a consecutive eight-month term on count II, concurrent six-month terms on counts III and IV, and stayed terms on count V and VI. On appeal, Colvin contends he was denied the effective assistance of counsel and his right to due process. We will affirm.
FACTS
The Prosecution Case
The prosecution’s evidence established that in the early morning of October 30, 2005, California Highway Patrol Officer Jason Austin and his partner, Officer Jesse Udovich, responded to a call of a hit and run accident at the Black Oak Casino in Tuolumne County. The officers located one of the vehicles, a Dodge pickup belonging to Colvin, parked in the casino parking lot with Colvin sitting on the passenger’s seat asleep. They knocked on Colvin’s window but were unable to rouse him. Austin walked to the driver’s door, which was unlocked, and used its electronic controls to unlock the door on the passenger’s side allowing Udovich to open it and wake Colvin.
Colvin appeared very intoxicated and fell to the ground as the officers tried to get him out of the truck. Austin retrieved a switchblade knife from Colvin’s front pocket and walked him to the patrol car. He removed Colvin’s wallet to look for his identification and found a zip-lock baggie containing a small amount of cocaine.
Austin found a camouflage bag in the bed of the truck. In a pouch in the bag, he found a plastic baggie containing methamphetamine and an envelope addressed to Colvin at his residence in Galt.
In the truck’s cab, Austin found a large, soft, briefcase-type bag that contained three zippered compartments inside. He opened the middle compartment and found a loaded .45 caliber handgun. After arresting Colvin, Austin continued searching the briefcase and found a removable pouch under where the handgun had been. Inside the pouch were four clear bags containing 89 grams of methamphetamine. Under this pouch Austin found a box of baggies and a scale. Detective William Burr removed a baggie containing three grams of methamphetamine and a glass pipe from a zipper compartment on the outside of the briefcase.
Officer Austin testified he found the black briefcase on top of the center console towards the rear of the truck.
The Defense Case
Benjamin Cruz testified that in late October 2005, he met a woman in Stockton who drove him to Oakley in east Contra Costa County where they went barhopping for approximately eight hours. Cruz denied taking any drugs that day and claimed he had not used methamphetamine in five years. Cruz was walking in Oakley when he saw a paper grocery bag on the ground, picked it up, and glanced inside. Even though he did not inspect the bag’s contents, he concluded it contained methamphetamine because it had a strong odor. Cruz became paranoid and did not want to “get shot for picking up someone else’s drugs.” He noticed some people in a car looking at him so he shoved the bag down his pants. When the car passed him again, he became more nervous so he approached an open, bright yellow truck at a construction site intending to leave the bag there temporarily. Cruz took a large plastic zip-lock bag out of the paper bag and placed it in the truck in a black bag that did not have side pockets. He did not move anything in the black bag while placing the plastic bag there. Cruz returned after sunset and found the yellow truck gone.
Cruz was familiar with methamphetamine because he had used it in the past.
Cruz also testified he did not know what he was going to do with the drugs.
Cruz later heard on the street in Stockton that somebody’s drugs were picked up and that Colvin was being prosecuted. He contacted defense counsel after getting his phone number from the telephone book.
On cross-examination, Cruz testified he heard on the street “somebody was looking for drugs, that someone picked up some drugs and that some drugs were planted in someone else’s vehicle.” In an internet newspaper, Cruz read an article he thought was about the drugs he took. He came forward on his own and testified because he was afraid for his safety and that of his family and did not want to get killed over the drugs. He wanted the people whose drugs he took to know that although he took the drugs, he did not end up with them. Cruz was impeached with a felony conviction.
Colvin testified he worked as an underground foreman for J & M, Inc. and used a bright yellow company pickup for work. He would leave the company truck open so workers could get tools from it or drive it if necessary.
In late October 2005, Colvin was working in Oakley. The week before his arrest, Colvin carried the camouflaged bag and black briefcase in his work truck. On Saturday, October 29, 2005, Colvin and his friend, Josh Northrop went hunting from approximately 5:00 a.m. until 2:00 p. m. Prior to leaving, Colvin removed the camouflage bag and briefcase from his company truck and placed the briefcase behind the driver’s seat of his pickup and the camouflage bag in the truck’s bed. While hunting, Colvin retrieved ammunition from the camouflage bag but he did not see any baggies or white powder in the bag. Afterwards, he and Northrop went to Jamestown where Colvin began drinking. Eventually they wound up at the Black Oak Casino and Colvin went to sleep in the parked truck.
The Subsequent Proceedings
After Colvin testified, defense counsel asked to play a surveillance tape from the Black Oak Casino that purportedly showed that the black briefcase was not on his truck’s console as Officer Austin testified. The defense then rested subject to playing the video for the jury and the court allowed the prosecutor to present a rebuttal witness out of turn.
District attorney investigator, Alan D’Hondt, testified he interviewed Cruz on May 31, 2006. Cruz told him that he had gone to an area that he thought was Oakley. However, he was not sure it was and for all Cruz knew “it could have been Texas.” Cruz also stated that he and the woman were under the influence of alcohol and drugs. Cruz said he placed the bag containing drugs in a duffle bag. He became aware of Colvin’s case by reading an article in the Union Democrat on his computer.
After D’Hondt testified, the court discussed with counsel playing the casino’s surveillance video. Defense counsel advised the court that he could not play the video without a certain software program owned by the casino. The prosecutor responded he could make arrangements to play the video but not over the lunch hour.
After lunch, defense counsel agreed that in lieu of the video he would have Northrop testify to the location of the briefcase in the truck. Northrop testified Colvin usually kept the black briefcase behind the seat or behind the center console of the seat. He did not see it at all the day Colvin was arrested.
On August 21, 2006, defense counsel moved for a new trial alleging, in pertinent part, that the prosecution’s statement that the software necessary to view the video was unavailable resulted in the suppression of material impeachment evidence. At a subsequent hearing, defense counsel submitted several still images from the surveillance video that appeared to show there was no black briefcase on the console when the officers first contacted Colvin in his truck in the casino parking lot.
On October 2, 2006, the court denied the motion.
DISCUSSION
Colvin contends the casino’s surveillance video showing there was no black briefcase on his truck’s console when he was arrested was very important to impeach Officer Austin and to corroborate his testimony that he kept the briefcase behind the driver’s seat. Thus, according to Colvin, he was denied his right to the effective assistance of counsel and to due process by his attorney’s failure to present this evidence, requiring his convictions in counts I, III, and VI be reversed. We will reject these contentions.
“To prevail on [an ineffective assistance of counsel] claim, [a defendant] must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.)
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”’ [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different. [Citations.]” (People v. Mesa, supra, 144 Cal.App.4th at p. 1008.)
Here, it was undisputed that methamphetamine was found in the black briefcase and the camouflage bag belonging to Colvin. Colvin’s defense was that Cruz placed a plastic zip-pock bag with four baggies containing methamphetamine in the briefcase when the briefcase was in Colvin’s work truck and Colvin unwittingly transferred the briefcase to his personal truck, where it was found by the officers. However, Cruz’s testimony did not account for the methamphetamine found in the camouflage bag, the methamphetamine and pipe found in the side pocket of the briefcase, or the scale and papers found in briefcase’s middle compartment. His testimony was also contradicted by Officer Austin who testified that the methamphetamine in the briefcase was found in a pouch, not a zip-lock bag, and was located under Colvin’s handgun, not on top of it as would be expected from Cruz’s testimony that he merely stuffed the zip-lock bag in the briefcase.
Further, Cruz’s testimony was inherently implausible. Cruz claimed he feared for his safety after discovering the methamphetamine. Nevertheless, he stuffed it in his pants and walked away with it even after seeing a car he believed could be carrying the angry owners of the drug. His veracity was further undermined by his testimony that he no longer used methamphetamine and did not know what he was going to do with it because he did not explain why he would risk his personal safety for no apparent reason.
Cruz’s explanation for coming forward was equally troubling. Cruz claimed he came forward to testify because he did not want whoever lost the methamphetamine to hurt him or his family. By testifying, Cruz wanted to let them know that although he picked up the methamphetamine, he did not end up with it. However, he did not explain why he believed whoever lost the methamphetamine would not be just as upset with him for taking the methamphetamine as the person who ultimately wound up with it.
Cruz was also impeached with statements he made to investigator D’Hondt and a prior felony conviction.
In contrast to the problems with Colvin’s defense, the impeachment value of the video contradicting Officer Austin’s testimony was minimal. As noted above, Colvin did not present evidence disputing that methamphetamine was found in the locations testified to by the prosecution witnesses. Further, the possibility Officer Austin may have been wrong regarding the location of the briefcase in the Colvin’s truck did not affect these undisputed facts. Additionally, the video’s corroboration of Colvin’s claim that he placed the briefcase behind his seat did little to shore up the shortcoming of his defense. As discussed above, these shortcomings included the failure of Colvin’s defense to account for all the methamphetamine found in his belongings and its reliance on a witness whose testimony was severely impeached. Thus, we reject Colvin’s ineffective assistance of counsel and denial of due process claims because Colvin was not prejudiced by the failure to play the casino video to the jury.
DISPOSITION
The judgment is affirmed.