Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F0150
DAVIS, Acting P.J.
Defendant Thomas Robert Estampa was convicted by a jury of receiving stolen property in violation of Penal Code section 496, subdivision (a). The trial court denied defendant’s motion for new trial. After finding the prior prison term allegation true, the court sentenced defendant to three years in state prison.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends his trial counsel was prejudicially ineffective for violating discovery rules and for failing to present the testimony of an exculpatory witness. We shall affirm the judgment.
Facts and Procedural History
On February 15, 2005, Robert Cope, part owner of Cope and McPhetres Marine, prepared for an upcoming boat show by loading boating equipment and accessories into a U-Haul truck. Cope padlocked the U-Haul and went home.
At approximately 3:30 a.m. on February 16, 2005, police discovered that the U-Haul had been broken into and about $4,000 in merchandise had been stolen.
At approximately 4:10 a.m. on February 16, 2005, Deputy Sheriff Andrew Buchanan noticed a pickup truck make a suspicious turn onto Ramsey Drive, a residential street in the northwest part of Sacramento. When Buchanan turned onto Ramsey Drive, he saw the truck parked on the side of the road. Buchanan slowed down, activated his passenger side alley light and illuminated the cab of the truck. As he drove by, he saw the defendant, whom he recognized but could not “place a name to the face,” sitting in the driver’s seat.
Buchanan drove down the street and turned around, losing sight of the truck for approximately 15 to 20 seconds. As he passed the pickup truck again, he activated his driver’s side alley light and again illuminated the cab of the truck, which was now unoccupied.
Buchanan parked behind the truck and got out to investigate. The bed of the truck contained water skiing equipment and apparel with the price tags still attached. Buchanan ran the license plate and learned the truck was registered to Eugene Estampa (defendant’s father). Buchanan identified defendant as the driver when he recalled having arrested defendant several months prior and having spent at least an hour with defendant transporting him to jail. He confirmed that defendant was the person he saw driving the truck when he returned later to the police station and had one of the detectives pull up defendant’s mug shot.
The parties stipulated at trial that the pickup truck was owned by Eugene Estampa and that defendant was the primary driver of that vehicle.
The stolen items were removed from the truck, photographed and inventoried, and identified by Cope. Meanwhile, police went up the street to Eugene Estampa’s residence and determined that the truck had not been reported stolen. At some point during the investigation, Pat Filbert, a resident of the house in front of which the truck was parked, came out and asked Buchanan what was going on.
Defendant was arrested and charged by amended information with one count of receiving stolen property related to the February 16, 2005, incident (count one), and another count of receiving stolen property related to a prior incident (count two). The information also alleged that defendant served a prior prison term within the meaning of section 667.5, subdivision (b).
The court granted defendant’s request to bifurcate the issue of the prior prison term. At the commencement of trial, the parties each submitted their list of proposed witnesses. Defendant’s list included the names of 11 individuals, including Jeffrey McAuliffe, Pat Filbert and Bob Leftridge (erroneously spelled “Lefridge” on the list), but gave no information regarding their proposed testimony. A relevance objection by the People led to an in camera hearing during which defense counsel explained that he intended to call Filbert to impeach the testimony of the investigating officer and to testify that McAuliffe (defendant’s roommate and a friend of Filbert’s) had shown up at the house around 4:15 a.m. on February 16, acting “nervous,” and that he’d let him in.
Defendant’s original witness list included the names of 17 individuals; however, six of those names were deleted following the People’s dismissal of count two.
The court ruled that defense counsel would be permitted to argue the relevance of any proposed witness at the conclusion of the prosecution’s case. At the People’s request, the court agreed to elicit an offer of proof and/or conduct an Evidence Code section 402 hearing prior to allowing any defense witness to testify.
At the conclusion of its case-in-chief, the court reminded defense counsel that the People had requested that he make an offer of proof with regard to witnesses he intended to call. Defense counsel told the court he “probably” would not call Leftridge, but confirmed that Filbert would testify to facts impeaching the investigating officer. At the court’s prompting, defense counsel added that Filbert would also provide testimony to support a third party culpability defense (i.e., that McAuliffe appeared at his house at approximately 4:00 a.m. that morning and asked if he could “crash” for a few hours).
In light of the new information provided by defense counsel, the People objected to Filbert’s testimony based on defendant’s failure to provide timely discovery. The court conducted an Evidence Code section 402 hearing to evaluate Filbert’s proposed testimony. Filbert testified that McAuliffe helped him build the extra room on the back of his house and had an open invitation to stay there if he ever needed to. McAuliffe showed up at his house sometime after 4:00 a.m. on the morning of the incident, told Filbert he was having problems with his girlfriend and said he needed a place to stay. Filbert agreed. Later that morning, when Filbert saw the pickup truck parked in front of his house and a sheriff’s deputy preparing to tow the truck, he went outside to see what was going on. According to Filbert, the officer asked him whether he knew who was driving the truck and whether he himself had driven the truck. Filbert answered “no” and went back inside the house. Filbert’s brother arrived at the house between 6:30 and 7:00 a.m. that morning, and McAuliffe left sometime after that. Filbert told the court he had provided this information to defense counsel approximately five months prior to trial.
Based on Filbert’s proposed testimony, the prosecution requested that the court either continue the matter to allow further investigation of the new information or exclude Filbert’s testimony altogether given defendant’s failure to abide by the discovery rules. The court abandoned the idea of continuing the trial after a poll of the jury confirmed that a continuance would create undue hardship for at least four of the jurors. Rejecting exclusion as a “last gasp effort” to be used only after exhausting all other alternatives, the court determined that a late discovery instruction (Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 306) would be appropriate. The court reserved the issue of possible sanctions against defense counsel until after conclusion of the trial.
Defense counsel ultimately elected to limit Filbert’s testimony to impeachment of Deputy Buchanan, omitting testimony regarding Filbert’s interaction with McAuliffe in order to avoid the late discovery instruction. Consistent with that decision, Filbert testified only about his interaction with the officer present on the scene on the morning of February 16, 2005.
Defendant testified that he caught his roommate, McAuliffe, smoking methamphetamine in the bathroom on the night of February 15, 2005, and a verbal argument ensued. The two men had planned on going fishing that night but, after telling McAuliffe to get out of the house, defendant went to bed instead. Defendant testified he woke up the next morning around 7:00 a.m. and discovered that both the pickup truck and McAuliffe were gone. Defendant called the Highway Patrol to report the truck stolen, but was told it had been towed. When defendant and his father went to the tow yard, defendant was arrested.
Defendant denied driving the pickup truck on the morning of February 16, 2005, claiming McAuliffe took it after their fight. He admitted telling his father the truck was stolen while he was fishing, but explained that he lied because he “didn’t want to get Jeff [McAuliffe] in too much trouble,” and was afraid that McAuliffe might do something in retaliation.
The jury found defendant guilty of receiving stolen property. Defendant waived his right to a jury trial on the prior prison term allegation. Once the jury was dismissed, the court held a hearing on the issue of sanctions against defense counsel, ultimately imposing a monetary sanction of $750 for “unjustified failure to provide the information” regarding Filbert’s proposed testimony. Attorney Don Masuda was eventually relieved as defense counsel and replaced by Ken Gifford.
Defendant’s motion for new trial based on ineffective assistance of counsel (Masuda) was heard on May 3, 2006. According to the moving papers, defendant was prejudiced by Masuda’s failure to call both Filbert and Leftridge to testify to the third party culpability defense. In his declaration filed in support of the motion, Leftridge stated he was at Filbert’s house that morning to pick up Filbert’s brother and spoke with McAuliffe, who claimed he had been pulled over by police while driving the pickup truck. After hearing testimony from Leftridge and reviewing Filbert’s testimony from the Evidence Code section 402 hearing, however, the court found “rather significant discrepancies between Filbert’s testimony and Leftridge’s testimony” and denied the motion, concluding that a different outcome was not reasonably probable.
At sentencing, the court denied probation and sentenced defendant to an aggregate prison term of three years (the middle term of two years, plus an additional year for the prior prison term) minus presentence custody credits, and imposed various fees and fines.
Defendant filed a timely notice of appeal.
Discussion
Defendant contends his trial counsel was ineffective for failing to comply with discovery rules and failing to have Filbert testify in support of defendant’s third party culpability defense. He contends that it was reasonably probable that, absent counsel’s errors, the verdict would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] (Strickland).) We disagree.
To establish ineffective assistance, defendant bears the burden of showing (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland, supra, 466 U.S. at pp. 687, 688-694; People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
Masuda identified Filbert and Leftridge as defense witnesses in a letter to the district attorney’s office on September 14, 2005. However, he purposefully withheld additional information, particularly the content of Filbert’s proposed testimony, until after the conclusion of the prosecution’s case-in-chief, following a demand by the prosecution for an offer of proof and only after some prodding from the court to disclose all of the facts about which Filbert would testify. By Masuda’s own admission, the failure to disclose information regarding Filbert’s intended testimony was intentional (i.e., strategic) because Masuda feared the district attorney would provide that information to Buchanan, who would then change his story accordingly. Whether or not the failure to provide discovery in a timely manner was part of Masuda’s defense strategy, it most definitely deprived the prosecution of relevant information and resulted in Masuda’s election not to elicit third party culpability testimony from Filbert in order to avoid a late discovery instruction to the jury.
Masuda represented that he did not intend to call Leftridge, so no further disclosure of information would have been required as to that witness.
However, even assuming Masuda’s performance was deficient, ineffective assistance has not been established unless defendant shows a reasonable probability that, but for counsel’s error, a more favorable outcome would have resulted. We do not find that here. Had Masuda provided the discovery information in a timely manner, Filbert, and perhaps Leftridge, would have been able to testify in support of the third party culpability defense. However, the People would likewise have had time and the opportunity to investigate both Filbert and Leftridge, and would most certainly have discovered that their stories were conflicting. Leftridge’s testimony at the motion for new trial, which was consistent with his declaration in support of the motion, was that he saw and talked to McAuliffe on the morning of the incident while the police were still out in front of the house. That story directly contradicts Filbert’s testimony that no one else was there that morning but Filbert and McAuliffe. Given the factual inconsistencies between the two stories, it is not reasonably probable that the jury would have arrived at a different verdict had those witnesses testified.
We also note that, despite Masuda’s election to limit Filbert’s testimony, defendant was able to, and did, offer a third party culpability defense through his own testimony at trial. The jury was able to weigh that testimony against Buchanan’s unequivocal identification that defendant was the person driving the pickup truck that morning.
We conclude that, even in the absence of Masuda’s error, it is not reasonably probable that the verdict would have been more favorable to defendant.
Disposition
The judgment is affirmed.
We concur: RAYE, J., BUTZ, J.