Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF004309, Robert G. Spitzer, Judge.
Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Tim Alan Hambelton appeals his conviction of one count of being a felon in possession of ammunition. Defendant contends his trial attorney rendered constitutionally ineffective assistance of counsel with respect to certain evidentiary matters. We affirm.
FACTS AND PROCEDURAL HISTORY
In September 2005, law enforcement agents stopped a pickup truck for inoperable brake lights. Defendant, the driver, told the officers that his driver’s license was suspended, and that he was a felon who had been discharged from parole. Valerie Castrillon, defendant’s girlfriend, was a passenger in the truck. She told the officers that she may have had some outstanding warrants.
The officers searched the truck and found a tool bag behind the seats. Besides some tools, a box of rifle ammunition was in the tool bag. Between the front seats, they also found a pouch; inside the pouch was a film canister containing five .38-caliber bullets.
The truck belonged to both defendant and Castrillon. Defendant told officers that he had just found the box of .22-caliber rounds a few minutes before being stopped; he did not want to simply throw them away, because they were near a school. Defendant denied any knowledge of the .38-caliber rounds.
The officers arrested defendant for being a felon in possession of ammunition; they arrested Castrillon on two outstanding felony warrants. Even up to the time Castrillon testified at defendant’s trial, she was never charged with any offense having to do with the ammunition, even though she herself had suffered a felony conviction well before the incidents of September 2005.
After her arrest on the warrants in September 2005, Castrillon was in custody and eventually was sent to prison. She maintained contact with defendant through writing letters. Defendant wrote letters to Castrillon, telling her that he loved her, asking her to come to court for him, assuring her that she “can’t get in trouble for anything,” and reminding her or emphasizing to her that the ammunition in the truck was hers.
In December 2005, while she was in custody, Castrillon wrote a letter to defendant, stating, among other things: “On the evening of September 21st, 2005, my boyfriend, [defendant, and I] were on our way to an NA meeting, got pulled over, and behind my seat (passenger seat) was my tool bag, a green with black trim Craftsman bag. [¶] Inside were my tools, some of [defendant’s], but most of them were mine. Also a small case of .22 shells, ammo, which was also mine. Also beside my seat, kind of tucked beside my seat, was a black camera case with Velcro in it. It had some bullets in it also. Also was mine. [¶] I told the police they were mine, but he would not listen to me. [Defendant] kept telling them he knew nothing of them. He was and still is telling the truth. At the time, I was a tweaker on speed. I picked up odds and ends things all of the time. I would see something on the ground or in the trash and take it home. In the camera case was also/jewelry case with my rings and one of [defendant’s] rings in it.”
Defense counsel called Castrillon as a witness at trial. She described how they had been stopped by law enforcement officers, but when counsel asked her whether she had been aware of the ammunition in the truck, Castrillon invoked her Fifth Amendment right not to testify. After Castrillon invoked her Fifth Amendment privilege, defense counsel was able to establish that Castrillon had spoken to a defense investigator on May 25, 2006 (the first day of trial), and on May 26, 2006 (the second day of trial), with the prosecutor and the district attorney’s investigator.
On cross-examination, the prosecutor established that defendant at times did mechanic work on cars, and that both defendant and Castrillon had worked on the truck they were driving when they were arrested. When Castrillon was asked whether she had used the tools in the tool bag found in the truck, she stated that she had not worked on the truck on the day of their arrest; that she had another tool box, but her tool box was not in the truck. Castrillon testified that she had worked on the truck, but then she backtracked and said, “Well, not really. You get greasy.” Castrillon admitted that defendant had certainly used the tools, and that both of them had access to the tools. In fact, Castrillon and defendant did not really work on the truck together; she “helped him once in awhile on it,” because defendant had “way more” mechanical knowledge and experience than she did.
In her interview with the prosecutor on the second day of trial, the prosecutor had told Castrillon that, because Castrillon herself had suffered a felony conviction, she could indeed “get in trouble” for possessing the ammunition. Once the prosecutor had pointed this out to Castrillon, Castrillon changed her story to say she did not know where the ammunition had come from or to whom it belonged.
The trial court sustained Castrillon’s claim of Fifth Amendment privilege with respect to the letter, and excluded it from evidence. Defense counsel was unable to find a witness able to authenticate the letter by the close of the evidence.
The jury found defendant guilty of possessing the ammunition. The court sentenced defendant to state prison for a term of six years. Defendant now appeals.
ANALYSIS
I. Defendant Has Failed to Establish That His Trial Counsel Rendered Constitutionally Ineffective Assistance
Defendant urges primarily that, even though Castrillon’s letter saying that the ammunition was hers was excluded from evidence, his trial attorney should have offered the letter for purposes other than direct evidence. That is, defendant argues his trial attorney rendered ineffective assistance of counsel (IAC) for failing to proffer Castrillon’s letter as a declaration against her penal interest, or in failing to offer the letter as a prior inconsistent statement.
When a defendant claims that his or her attorney was ineffective, the defendant bears the burden of demonstrating not only that counsel’s representation fell below an objective standard of competence, but also that any deficiencies in counsel’s performance were prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691; People v. Ledesma (1987) 43 Cal.3d 171, 215, 217.) Prejudice is shown only when it is reasonably probable that, absent counsel’s errors, a result more favorable to the defendant would have occurred. (Strickland v. Washington, supra, 466 U.S. 668, 694; People v. Ledesma, supra, 43 Cal.3d 171, 217-218.)
Defendant argues that, although the court sustained Castrillon’s assertion of her Fifth Amendment privilege not to be asked directly whether she had written the letter, defense counsel could and should have sought its admission independently as an admission against Castrillon’s penal interest. (Evid. Code, § 1230.)
This contention fails as a claim of IAC because the statement was not admissible as a declaration against Castrillon’s penal interest. Evidence of a statement made by a declarant may be admitted as a declaration against penal interest, “if the declarant is unavailable as a witness and the statement, when made . . . so far subjected [the declarant] to the risk of . . . criminal liability . . . that a reasonable [person] in [the declarant’s] position would not have made the statement unless he [or she] believed it to be true.” (Evid. Code, § 1230.)
Contrary to the requirements of the statute, the circumstances of the statement “when made” do not support its trustworthiness as a declaration truly against Castrillon’s penal interest. Evidence at trial showed that defendant had many communications with his mother and with Castrillon about the charges against him. At first, defendant tried to get his mother to contact some of his acquaintances to come forward on his behalf, saying, “them hoodlums owe me.” Defendant also asked his mother to contact a person called “Rob,” from whom he had apparently bought the truck, to have “Rob” claim possession of the truck and the bullets. Defendant’s mother understood that defendant was urging her to do this to attempt to get the charges dismissed.
When those ploys did not work, defendant then asked his mother to contact Castrillon and get her to testify on his behalf. In conversations with his mother, defendant insisted that the bullets were not his, and emphasized that Castrillon had said the items in the truck were hers. Defendant’s mother had asked him, “[w]ill she get in trouble?” but defendant advised her to just “play dumb” with Castrillon regarding her own exposure. Castrillon herself testified that defendant had written to her, asking her to come to court for him, and assuring her that she could not get into trouble “for anything.”
As soon as Castrillon realized, months after she had written the letter, that she could indeed “get in trouble” for possessing the ammunition herself, she then denied knowing anything about the bullets found in the truck.
Castrillon wrote the letter claiming that the bullets were hers after she had been assured and manipulated by defendant into believing that there would be no consequences to her from making that claim. Castrillon manifestly believed that it would not expose her to any criminal liability whatsoever. This is the antithesis of a declaration “against penal interest.” Indeed, as soon as she realized the letter could be used against her penal interest, Castrillon immediately retracted the statement.
Other evidence also undermined the trustworthiness of Castrillon’s declaration. Defendant, in recorded conversations with his mother, at first denied owning the truck. Then he admitted that he had bought the truck. Defendant tried to disclaim use of the truck. Defendant’s mother was forced to admit on the stand that, for some time before defendant’s arrest, she had consistently seen him drive the truck each time he arrived to and left from her home. In the same manner, defendant initially denied to his mother that he knew anything about the bullets found in the truck. Defendant admitted to his mother, however, that the bullets had been in Castrillon’s bag, and that she had shown the bullets to him before they were stopped by police. In fact, defendant had told his mother, “I put them in a tool bag.”
In light of the substantial evidence of defendant’s attempts to manipulate others, of his strenuous efforts to manufacture exculpatory evidence, and of his admissions, the plain tenor of all the evidence was that Castrillon wrote the letter at defendant’s behest, not because it was true, but to absolve him of guilt. She did so based on defendant’s explicit representations that Castrillon herself could suffer no liability from her statements. Defendant showed himself perfectly willing to lie to Castrillon in this respect to secure her false evidence exculpating him; she showed herself willing to lie for him in the belief that she could do so with impunity.
The letter was wholly untrustworthy and did not qualify as a statement against Castrillon’s penal interest.
Counsel could therefore not be faulted for failing to proffer such false evidence.
Defendant urges, similarly, that his counsel was incompetent for failing to offer the letter to impeach Castrillon as a prior inconsistent statement to her trial testimony. Defendant points to the specific portion of Castrillon’s testimony, describing her meeting a few days before she testified with the prosecutor. The prosecutor had pointed out to Castrillon that, despite defendant’s assurances that Castrillon could not get into trouble for taking responsibility for the bullets, she was indeed exposed to liability for the same crime that defendant was charged: being a felon in possession of ammunition. As soon as Castrillon realized that defendant’s assurances had been false, the prosecutor pointed out, Castrillon retracted any claim of possession of the bullets: “And then you later stated you did not know where the ammunition came from or to whom it belonged?” Castrillon testified, “That’s right, I don’t.”
Defendant now complains that his trial attorney was incompetent for failing to offer the letter as a prior inconsistent statement to impeach this particular trial testimony.
We reject this version of defendant’s IAC claim, not least because he cannot show prejudice. There was considerable evidence of defendant’s lies, manipulations, and efforts to manufacture exculpatory evidence. Producing a specific example of such manufactured evidence before the jury could hardly have helped his case. It is not reasonably probable that the outcome would have been any different had trial counsel attempted to impeach Castrillon with her obviously manufactured letter. (See People v. Dickey (2005) 35 Cal.4th 884, 911.)
II. The Trial Court Did Not Abuse Its Discretion in Failing to Strike Castrillon’s Testimony
Defendant further contends that the trial court erred in denying his motion to strike Castrillon’s statement, to the effect that, when confronted with her own possible liability for possession of the ammunition, she did not know where the ammunition came from or to whom it belonged.
The following colloquy took place:
“Q. [I.e., describing the contents of Castrillon’s interview with the prosecutor a few days earlier:] And then you later stated you did not know where the ammunition came from or to whom it belonged?
“A. That’s right, I don’t.
“Q. You said the ammunition was in a bag that [defendant] used regularly?
“A. I didn’t say that.
“Q. You didn’t say that?
“A. What I said was that it was in a bag that we had behind the -- I invoke my 5th Amendment right not to answer the question.”
The court sustained the assertion of privilege. It was only at that point, two questions and answers after Castrillon’s testimony that she did not know where the ammunition came from or to whom it belonged, that defense counsel asserted a request to strike that testimony. In other words, defendant failed to object at the time the testimony was given. In the absence of a timely objection, appeal on the issue is waived. (See People v. Wheeler (1952) 109 Cal.App.2d 714, 716.)
In any case, the trial court properly exercised its discretion in denying the motion to strike. “The decision whether to strike the direct examination is left to the discretion of the trial court, and the refusal to answer only one or two questions need not lead to the striking of the testimony.” (People v. Daggett (1990) 225 Cal.App.3d 751, 760.)
Here, defendant was not deprived of his opportunity to test Castrillon’s evidence by virtue of her assertion of the privilege as to certain questions and answers.
Finally, any error was harmless. Castrillon’s testimony was simply that she did not know to whom the ammunition belonged. This did not in itself implicate defendant. She asserted her privilege at a point where she was about to admit possession of the bag of bullets herself; this also did not accuse defendant. Further, the other evidence of defendant’s guilt was overwhelming. It is not reasonably probable that the outcome would have been any different had the court stricken Castrillon’s statement.
DISPOSITION
For the reasons stated, the judgment is affirmed.
We concur: RAMIREZ, P. J. GAUT, J.