Opinion
D040561. D041656.
11-5-2003
THE PEOPLE, Plaintiff and Respondent, v. MELVIN HILLS, Defendant and Appellant. In re MELVIN HILLS on Habeas Corpus.
Melvin Hills filed an appeal and petition for writ of habeas corpus challenging a judgment convicting him of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.) He argues: (1) the trial court improperly excused a juror during trial; (2) the evidence is insufficient to prove the drugs belonged to him or that he possessed them for sale; and (3) his trial counsel provided ineffective representation by failing to investigate and present evidence which would have shown the drugs belonged to an individual at Hillss residence the day of his arrest. We reject these arguments. The record supports the trial courts discretionary finding that the juror could no longer view the case impartially and thus needed to be discharged. Further, there is substantial evidence to support the jurys verdict. Finally, we hold Hills has not made a prima facie showing in his habeas corpus petition that there is available and admissible evidence to show someone else owned the drugs. Thus, he cannot establish prejudice arising from any alleged deficiencies in counsels investigation. Accordingly, we affirm the judgment and deny the petition for writ of habeas corpus.
FACTUAL SUMMARY
Hills was tried jointly with his girlfriend, Toni Eden, who lived with him at the residence where the cocaine base was found. At about 5:00 a.m. on May 22, 2001, the police observed Marcia Tate approaching Hills and Edens residence. When Tate saw the police, she stopped, hesitated, and turned around. The police searched Tate and found a rock cocaine pipe in her possession. The officers then spoke with Thomas Wilkware who was standing on the porch of the residence. As the officers approached to enter the home, Hills stepped out onto the porch. When Hills saw the police, he yelled in a panic inside to his home that the police were coming.
In addition to Tate who had been approaching the residence, there were approximately six people at the residence, including Wilkware, Hills, Eden, Patricia Reed, and two other males. When the police entered the residence, Eden ran into the bedroom. After securing the people in the living room (including Hills), a police officer followed Eden. Eden was sitting on a bed with a rock cocaine pipe and some marijuana next to her on the bed. Eden appeared anxious and surprised. The police found a backpack on the floor in the one-foot space between the bed and the wall. The backpack contained CDs, various hygienic items (including female products), a knife, a planner, earrings, and a significant quantity of cocaine base in three baggies. The planner, which Eden said belonged to her, had Hillss name, date of birth, and social security number written in the section for addresses.
The residence was in a state of disrepair, with boarded windows, holes in the walls, old smelly couches, and a nonfunctioning kitchen, and it generally looked abandoned. The residence had only one bedroom, which had a curtain instead of a door separating it from a short hallway. Eden and Hills told the police that it was their room. Hills said the cocaine pipe and marijuana were his.
Eden stated the backpack belonged to her sister but that she used items in it. She told a police officer that the drugs in the backpack were hers. Hills stated he did not know anything about the drugs in the backpack and denied he sold drugs. He also denied ownership of the backpack, but said his fingerprints would be on it because he had retrieved items, such as soap, from the backpack. There were two new-looking cell phones in the bedroom. Hills said he had purchased both phones, and that he purchased one of them from a woman on the street for $20 because she wanted some cocaine. A police officer opined people who sell drugs usually use cell phones to communicate with customers.
The record is not consistent on this point. On cross examination, the same officer responded affirmatively when asked if Eden denied the cocaine was hers.
Hills and Eden appeared to be under the influence of a controlled substance. They both admitted to the police they had smoked cocaine. Hills told police he smoked cocaine every day, and that he had smoked about a "dime" (i.e., .10 gram, about $10 worth). Hills and Eden stated they were unemployed. The police found $ 110 cash on Hillss person and $30 cash on Edens person.
When the police entered the residence, it appeared that the people there were having a party. The police saw Reed hide something in a trash bag in the living room; the hidden item turned out to be a cocaine pipe. The officers arrested the people at the residence who appeared to be under the influence of a controlled substance, including Hills, Eden, Reed, and Tate. Wilkware and the other two males did not appear to be under the influence of a controlled substance at the time of police contact and were not arrested.
The three baggies found in the backpack contained .77 grams, 2.96 grams, and 16.66 grams of cocaine base, for a total of 20.39 grams. A narcotic sales expert opined that 20 grams of rock cocaine could represent $2,000 or more in street level sales and that a person possessing 20 grams of rock cocaine possessed it for purposes of sale. The expert estimated that a heavy user would use about two grams of rock cocaine in a 24-hour period. The expert acknowledged that six heavy users could smoke 20 grams in a 24-hour period. However, in the experts view, a group of people having a "crack" party would normally buy an "eight ball" (i.e., one-eighth of an ounce, or 3.5 grams) together and would not normally buy an amount as large as 20 grams. The expert acknowledged that a larger purchase of cocaine costs less than smaller individual amounts, and it was not unusual for rock cocaine users to jointly purchase the drug for purposes of sharing.
No weighing scales or additional packaging materials were found at the residence. However, prosecution witnesses testified that cocaine base is often sold at the street level by breaking small pieces off a larger chunk without the use of packaging or a weighing scale.
DISCUSSION
I. Removal of a Juror
Hills argues the trial court improperly removed a juror from the panel during trial after the juror disclosed a negative experience with law enforcement that could cause him to be biased against the prosecution. During trial, the juror informed the court he had a flashback from his military days that "hit [him]" at night after he heard a police officers testimony. The juror explained that military police had planted drugs in his vehicle and arrested him.
During a lengthy inquiry by the trial court and counsel, the juror initially stated he believed the experience would bias him and that he could not leave it out of deliberations so as to do justice to the prosecution. Upon further questioning, he acknowledged that he could judge the case on the evidence without considering his past experience and he could be fair. At one point the juror summed up by stating "I may be able to separate [the experience], and I may not."
The trial court pointed out to the juror that he was providing inconsistent information, saying on the one hand he would be biased and on the other hand that he could be fair. The court explained that although it was acceptable for the juror to use his common sense and total life experiences during deliberations, it was not proper for him to allow negative feelings towards law enforcement to impact the evaluation of the police testimony in the case. Answering the courts query whether his experience was going to bias his evaluation of the police officers testimony, the juror said that he believed it would probably bias him. The juror explained that if he had remembered the experience during voir dire, he probably would have still told the court he could be fair, but because he remembered the experience after noticing inconsistency during police testimony, it made him feel uncomfortable and it might bias him.
A juror may properly be discharged if the nature of the case makes it difficult for him to keep an open mind so that he is actually unable to perform his duty. (Pen. Code, § 1089; People v. Compton (1971) 6 Cal.3d 55, 59, disapproved on another point in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) However, if the juror can set aside a general abstract bias and is capable of acting impartially, the juror need not be excused even though he or she may have to make a special effort to be objective. (People v. Compton, supra, 6 Cal.3d at pp. 59-60; People v. Davis (1972) 27 Cal.App.3d 115, 120; see also People v. Haslouer (1978) 79 Cal.App.3d 818, 833.) The jurors inability to perform his or her duty "`must appear in the record as a "demonstrable reality" and bias may not be presumed." (People v. Beeler (1995) 9 Cal.4th 953, 975.) The decision whether to retain or discharge a juror rests within the sound discretion of the trial court and will be upheld if supported by substantial evidence. (People v. Boyette, supra, 29 Cal.4th at p. 462.)
Here, the trial courts removal of the juror is amply supported by the record. Although at times the juror stated he thought he could be fair, he ultimately could not provide this assurance to the court and repeatedly indicated he might be biased. (See People v. Hecker (1990) 219 Cal.App.3d 1238, 1244-1245 [juror who could not provide assurances of impartiality properly excused].) Contrary to Hillss suggestions, the record does not compel a finding that the jurors statements meant he merely needed to make a special effort to be impartial or that he would simply apply his common sense based upon his past experience. The trial courts determination that the juror could not set aside his past negative experience with law enforcement to perform his duty with impartiality was within the reasonable exercise of the courts discretion.
II. Substantial Evidence
Hills argues the evidence is insufficient to support a finding that he owned the drugs or that they were intended for sale. In reviewing a challenge to the sufficiency of the evidence, we consider the entire record and draw all inferences in favor of the judgment to determine whether a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Although the jury must acquit if the circumstantial evidence permits two reasonable interpretations, one of innocence and one of guilt, it is the jury, not the appellate court, that must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Holt (1997) 15 Cal.4th 619, 668.) Thus, if the circumstances reasonably justify the jurys findings, we affirm the judgment even if the circumstances can also be reasonably reconciled with a contrary finding. (Ibid.)
Constructive possession may be shown by evidence that the drugs are found in a place that is immediately accessible to the defendant and subject to his or her exclusive or joint dominion and control. (People v. Newman (1971) 5 Cal.3d 48, 52-53, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862.) Possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence; neither exclusive possession of the premises nor physical possession of the drugs is required. (People v. Harrington (1970) 2 Cal.3d 991, 998.) Although mere access to, or presence in, a place where drugs are found may not be enough to establish possession (People v. Hunt (1971) 4 Cal.3d 231, 236; People v. Jenkins (1979) 91 Cal.App.3d 579, 584), presence of drugs at ones own residence may in some cases be a strong indicia of dominion and control (see, e.g., People v. Harrington, supra, 2 Cal.3d at pp. 998-999). Intent to sell may be established by the opinion of an experienced officer that the narcotics are held for sale based upon matters such as quantity, packaging, and the normal use by an individual. (See People v. Newman, supra, 5 Cal.3d at p. 53.)
Here, the cocaine base was found in Hillss bedroom in a backpack which he admitted accessing to retrieve items. Hills was unemployed and yet owned two new-looking cell phones and had $110 in his possession. Several people were congregated at his residence at 5:00 a.m., and at least one of them possessed a cocaine pipe and appeared to be under the influence of a controlled substance. Another person who was approaching his residence had a rock cocaine pipe in her possession. The value of the rock cocaine in his bedroom could be $2,000 or higher if sold in individual dosages. When Hills saw the police, he reacted in a panic and communicated to the persons in his home that the police were coming.
From these circumstances, the jury could reasonably infer Hills was selling drugs from his residence. The jury could infer that Hills knew about the drugs in the backpack because he admitted using the items in the backpack. Further, the jury could deduce that an unemployed person with $110 cash on his person and $2,000 worth of drugs in his bedroom was selling those drugs to acquire that cash. Also, the jury could reasonably view Hillss warning of the arrival of the police as being designed to alert Eden to hide or dispose of the drugs. The jury could reasonably infer that Reed, who was under the influence of cocaine and possessed a cocaine pipe, purchased her drugs from the residents of the house. Similarly, the jury could infer that Tate, who was on her way to the residence and also possessed a cocaine pipe, had the intent to make a drug purchase from the residents of the house.
Contrary to Hillss arguments, the jury was not compelled to find that the drugs did not belong to him for purposes of sale because of such factors as the presence of female hygiene products in the backpack, Edens claim of ownership of the drugs, the easy access to the curtained-off bedroom, and the possibility that the group of people at the residence had jointly acquired the cocaine base in order to sustain a long party. Although Eden may have claimed ownership, the jury was not required to exclude Hills, who indeed had a larger amount of cash on his person than Eden and admitting accessing the backpack, as a participant in the sales operation. Similarly, there is nothing in the record compelling the jury to find it plausible that the large amount of cocaine reflected a group purchase rather than a sales operation or that someone else at the residence owned the drugs in the bedroom. Certainly, the jury could consider these matters when deciding whether guilt had been proven beyond a reasonable doubt, but they do not carry sufficient evidentiary weight to defeat on appeal the reasonableness of the jurys guilty verdict.
III. Ineffective Assistance of Counsel
A. Overview
On the date set for sentencing, Hills informed his trial counsel that an individual named Wayne (who was purportedly at the residence when Hills was arrested but who was not identified in the police report) told a fellow jail inmate (Robertson) that he (Wayne) would admit the drugs were his. Based on this information, Hillss trial counsel was relieved from the case, sentencing was postponed, and new counsel was appointed for purposes of pursuing a new trial motion. After a hearing on the matter, the trial court denied the new trial motion.
Both on appeal and in his writ petition, Hills argues he was deprived of his constitutional right to effective representation because his trial counsel (Jack Okrent) failed to investigate and present a defense based on a claim that the drugs were owned by Wayne. To support his claim, Hills has presented a series of letters exchanged between himself and Eden which reference Wayne as the owner of the drugs. Asserting his counsel knew or should have discovered before trial that the drugs belonged to Wayne, Hills argues counsel was ineffective for failing to call Eden, Wayne, Robertson, and/or some other witness present at the residence to testify regarding Waynes ownership of the drugs. Hills posits that Wayne might have been willing to testify that the drugs were his, and even if Wayne declined to do so, other witnesses present at the residence, including Eden, would have known the drugs belonged to Wayne.
To support his claim of ineffective assistance of counsel arising from the failure to present this third party culpability evidence, Hills presents the following evidentiary items: (1) the letters exchanged between Eden and Hills; (2) testimony by Okrent at the new trial hearing regarding Waynes admission to jail inmate Robertson; and (3) a declaration from Stephen Cline (new counsel appointed to represent Hills at the motion for new trial) asserting Eden wanted to testify at trial on Hillss behalf.
As we shall explain, we reject Hillss request for relief. His habeas corpus petition fails to point to the existence of any admissible or available evidence which could establish Waynes ownership of the drugs. Specifically, there is no contention before us that the letters were independently admissible; Eden unequivocally indicated at trial she did not want to testify; and no declarations have been presented from Wayne, Robertson, or any other potential witness indicating their knowledge of who owned the drugs. In the absence of some showing that counsels representation caused the omission of actual evidence pertinent to his defense, Hills cannot show the prejudice necessary to state a prima facie case for relief based on ineffective assistance of counsel.
B. Legal Standards
To prove inadequate trial representation, the defendant must establish that counsels representation fell below an objective standard of reasonableness and resultant prejudice. (People v. Bolin (1998) 18 Cal.4th 297, 333.) To establish prejudice, defendant must show that counsels acts or omissions resulted in the withdrawal of a potentially meritorious defense or that there is a reasonable probability the result would have been different in the absence of the alleged ineffectiveness. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. McPeters (1992) 2 Cal.4th 1148, 1187.) To show prejudice arising from counsels inadequate investigation, the defendant should specify what favorable evidence could have been obtained by further investigation. (See People v. Jackson (1980) 28 Cal.3d 264, 289, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Counsel is not "required . . . to investigate all prospective witnesses [citation] and we cannot presume prejudice from the mere fact of counsels alleged inaction." (People v. Jackson, supra, 28 Cal.3d at p. 289.) If defendant does not carry his burden of showing prejudice, a reviewing court may reject the claim without determining whether counsels performance was deficient. (People v. Kipp (1998) 18 Cal.4th 349, 366; In re Alvernaz (1992) 2 Cal.4th 924, 945.)
In a habeas corpus proceeding the burden is on the defendant to initially plead, and then later prove, sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) To satisfy this initial burden of pleading adequate grounds for relief, the habeas corpus petition must plead the facts with particularity and should "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." (Ibid.) If the petition fails to state a prima facie case for relief, we may summarily deny the petition. (Id. at p. 475.) Such summary denial is appropriate if the initial pleadings fail to include affidavits or other evidentiary information necessary to state a prima facie case for relief. (See In re Robbins (1998) 18 Cal.4th 770, 795, fn. 16; People v. Bolin, supra, 18 Cal.4th at p. 334; cf. People v. Jackson (1986) 187 Cal.App.3d 499, 507-508, disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144.)
Pursuant to our request, the People and Hills have filed an informal response and reply, respectively, to assist us in our determination of whether a prima facie case has been stated. (See Cal. Rules of Court, rule 60; People v. Romero (1994) 8 Cal.4th 728, 737, 741-742.) If defendants factual allegations, assuming they are true, establish a prima facie case for relief, we issue an order to show cause, requiring the People to file a formal return and the defendant to file a traverse. (People v. Duvall, supra, 9 Cal.4th at pp. 475-478; People v. Romero, supra, 8 Cal.4th at pp. 737-740.) We would then decide the merits of the petition, or would order an evidentiary hearing if there are material facts in dispute. (People v. Duvall, supra, 9 Cal.4th at pp. 478-479.)
C. Analysis
1. The Letters
Defense counsels pretrial knowledge that the drugs may have belonged to Wayne is derived from a series of letters exchanged between Eden and Hills while they were both in jail. At the motion for new trial hearing, Hills testified that he wrote to Eden and asked her how the drugs got into his bedroom, and she responded by writing about 30 letters explaining what happened. Some (or perhaps all) of the letters were either provided, or made available, to Hillss counsel before trial.
Hills trial counsel claimed to have knowledge of only some of the letters, whereas Hills claimed he told his counsel about all of the letters but counsel failed to comply with his request that the letters be picked up from the jail. This dispute is not pivotal to our resolution of this case.
In one letter Eden expressed her dismay that they were in jail for "Waynes shit" and wrote that she would say the drugs were hers so that Hills would be released. In another letter she wrote that she put the drugs in the backpack, thinking the police would not search their belongings. She wrote that she would say Hills knew nothing about the drugs and that she put the drugs in the backpack for someone else, and Hills should let her know if he had a better idea. In another letter she wrote she was not a coward and that is why she did not "tell on Wayne."
Hills wrote Eden a letter stating that he had "leveled" with his attorney and told him that Wayne, who was not mentioned in the police report, threw the drugs in the bedroom and that Eden was trying to get them out of sight because the police were coming in the house. Hills wrote that his attorney was investigating why Waynes name was not in the report. Hills told Eden he needed her to clear him of the charges and he asked her to write a letter to his attorney explaining what happened in case Edens attorney tried to stop her from saying anything.
In a responding letter, Eden chastised Hills for telling his attorney about Wayne, because now it looked like she had "snitched" on Wayne. She promised to tell Hillss
lawyer and to testify that Hills had nothing to do with the drugs, but Hills should not "put salt in the game" by dropping names. She told Hills not to worry because she planned to "ride this alone" and would not give up any names, and that the money Hills had could have come from an "under the table" job. Eden also wrote a letter to Hillss trial counsel, Okrent, stating that the backpack did not belong to Hills and that Hills had no knowledge of the drugs or where they were located.
At the new trial hearing, Hills testified Okrent told him that the letters would not assist Hills unless Eden testified. In denying the new trial motion, the court ruled that the letters would not have been admissible because they did not satisfy the requirements for the declaration against penal interest hearsay exception and, in any event, they were not trustworthy. The court interpreted the letters to reflect a previous agreement as to who was going to take responsibility for what actions.
Hills does not now challenge the trial courts finding that the letters exchanged between him and Eden were not independently admissible. Thus, there is no contention before us that counsel was ineffective for failing to seek admission of the letters themselves. We turn to Hillss argument that his counsel was ineffective for failing to call Eden to testify regarding her knowledge of Waynes ownership of the drugs.
2. Edens Potential Testimony
During pretrial in limine motions, Okrent informed the court that Hills wanted him to call Eden as a witness and that Eden had stated she would be willing to testify. Edens defense counsel then stated he had advised her not to do so. The court stated that at a later point, pursuant to Evidence Code section 402, it would ascertain outside the jurys presence whether Eden was willing to testify.
Evidence Code section 402, subdivision (b), provides: "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury . . . ."
Neither Eden nor Hills testified. Before submitting the matter to the jury, the trial court advised both Eden and Hills that they had the absolute right to testify even if their counsel advised them not to, and that the decision was theirs alone. In response to the courts query, both defendants stated they did not want to testify.
At the new trial hearing, Hills testified that Eden had promised him she would testify that he had nothing to do with the drugs. She also agreed to testify that he was not in the residence when the drugs were put in the bedroom, but she did not say she would testify that she put the drugs there. Okrent testified he had wanted Eden to testify at trial; however, Edens counsel had recommended she not do so and Eden ultimately told Okrent she would not testify.
In a declaration in support of the habeas corpus petition, Hillss new trial counsel, Cline, stated that he had spoken with Eden, that she "adamantly wanted to testify at trial on Mr. Hills[s] behalf in spite of her counsels advice to the contrary, but that she was not called as a witness by either of the defense attorneys." Cline also declared that Eden stated the cocaine base belonged to Wayne; Hills knew nothing about it; and when someone yelled that the police were coming to the door, Wayne gave her the cocaine base and offered to pay her for flushing it down the toilet. Eden decided she would instead hide the cocaine base in order to reap the "double benefit" of getting paid for destroying it while also still retaining it.
Edens posttrial statement to Cline that she "adamantly wanted to testify" on Hillss behalf is expressly belied by the trial record. At the end of trial, the court advised Eden that she could testify in spite of her counsels contrary advice, and Eden unequivocally stated on the record she did not want to testify. Edens assertion of her privilege against self-incrimination made during trial carries a stronger indicia of trustworthiness than her subsequent contrary statement made after her culpability had already been decided.
We will assume arguendo that the hearsay statement in new trial counsels declaration sufficiently identifies her as a potential witness even without a declaration directly from her.
Hills recognizes he could not force Eden to testify, but argues his trial counsel was incompetent for failing to call Eden to the stand outside the presence of the jury and requiring her to assert her privilege against self-incrimination. (See People v. Ford (1988) 45 Cal.3d 431, 440-441, and fn. 6.) Hills contends that his trial counsel improperly assumed that Eden would assert the privilege and the court would find the privilege applied to the specific questions asked.
The rationale for requiring a witness to be called to the stand to assert the privilege not to testify is that it is the court, not the witness, that must decide if a specific question calls for an answer that might be incriminatory, and further the court should not assume a witness would be unwilling to give truthful testimony when asked even if it could incriminate him or her. (People v. Ford, supra, 45 Cal.3d at pp. 440-441, 442.) Although this procedure is generally proper for witnesses who may assert the privilege against self-incrimination, it does not apply in the context of a codefendant who is being tried jointly with the defendant. The privilege against self-incrimination gives a defendant an absolute right not to be called as a witness and not to testify. (Evid. Code, § 930; People v. Pretzer (1992) 9 Cal.App.4th 1078, 1083, disapproved on other grounds in People v. Anzalone (1999) 19 Cal.4th 1074, 1083.) In Ford, the court expressly noted that the procedure of calling a potential witness to the stand to assert the privilege applied only in the context of "codefendants" who were tried separately, and that codefendants had a right not be called to the stand at their own trials. (People v. Ford, supra, 45 Cal.3d at p. 439, fn. 5, 440; see also People v. Chandler (1971) 17 Cal.App.3d 798, 803, disapproved on other grounds in People v. Hill (1992) 3 Cal.4th 959, 992.)
At the new trial hearing, Hillss trial counsel testified that Eden ultimately told him she did not want to testify. Trial counsels claim is confirmed by the trial courts express advisement to Eden at the end of trial that she had the right to testify against her counsels advice, and Edens clear response to the trial courts query that she did not want to testify. Notwithstanding Edens assertions in her letters and to Hillss new trial counsel that she wanted to testify, Edens indications at trial that she did not want to do so prohibited trial counsel from calling her to the stand. Thus, Hillss claim of ineffective assistance of counsel arising from the failure to call Eden as a witness is unavailing. (Cf. People v. Corona (1965) 238 Cal.App.2d 914, 920-921.)
3. Potential Testimony of Jail Inmate Robertson, Wayne, or Other Persons at the Residence
Finally, we consider Hillss assertion that his counsel was incompetent for failing to call fellow jail inmate Robertson, Wayne, or other persons at the residence as witnesses to attest to Waynes ownership of the drugs.
At the new trial hearing, Hills testified that he did not know Waynes full name until after the trial, but he had told Okrent before trial about Wayne and that Wayne was in custody. According to Hills, Okrent later told him that he (Okrent) had tried to find a person named Wayne in the detention system but was unable to locate him. In Hillss view, Okrent "wrote [Wayne] off" because he was not in the police report.
Okrents testimony at the new trial hearing regarding his knowledge about Wayne was equivocal. He stated he did not know a person named Wayne was at the party, and did not recall discussing Wayne with Hills before trial. However, Okrent acknowledged Hills may have mentioned Waynes name before trial and that Okrent asked Hills if he had identifying information about Wayne. Okrent also acknowledged that he reviewed the letter wherein Eden chastised Hills for bringing Wayne into the matter.
At the preliminary hearing, a police officer testified there were approximately six persons at the residence at the time of the arrest. The police reports identified by name only four of these persons: Hills, Eden, Wilkware (aka "Earl," the owner of the residence), and Reed (as well as Tate who was walking towards the residence). The police reports did not identify the two additional males who were also at the residence. At trial, a police officer testified that the names of the two men not mentioned in the police report would have been written down on field interview reports for submission through the police computer system.
At the new trial hearing, Okrent testified he did not attempt to obtain the field interview reports related to the incident and he did not make any requests for information about people not listed in the police report. Okrent acknowledged that Hills adamantly denied ownership or knowledge of the drugs. It was not until the date set for sentencing, however, that Okrent was informed by Hills that fellow inmate Robertson told him (Hills) that Wayne was going to "own up to owning the drugs."
According to Okrent, Hills told him he did not know who the drugs belonged to, but he thought they might belong to "Earl," the owner of the residence. Hills was not able to provide Okrent with any identifying information about Earl, and Okrent did not attempt to locate Earl as part of his investigation.
New trial counsel Cline declared that he was able to identify Wayne as Wayne Girard. Further, he was able to confirm that Wayne was incarcerated at the same jail facility and at the same time as Hills, and that Wayne had prior convictions for drug sales.
In denying the new trial motion, the trial court found that Okrents representation was within the acceptable range of performance. The court noted that the police reports indicated an informant, as well as one of the persons at the residence (Tate), told police that Hills was selling cocaine. The court concluded it was questionable whether the other people at the party would have provided testimony favorable to Hills. The court found that under all the circumstances it was not necessary for defense counsel to have pursued more information and that the defense strategy of portraying Hills as a mere user, not a seller, was reasonable.
Hills has not presented any evidentiary information indicating that potential witnesses, such as Wayne, fellow jail inmate Robertson, or the other persons at the residence (i.e., Wilkware, Reed, and an unidentified male), were contacted for purposes of the new trial motion or this habeas corpus petition to ascertain or confirm their knowledge about the ownership of the drugs. Without some direct confirmation from Wayne and/or Robertson regarding their knowledge, Okrents testimony at the new trial motion regarding Waynes inculpatory statement to Robertson does not point to the existence of any admissible evidence to support the defense. Absent an affidavit or declaration from a potential witness with knowledge of Waynes ownership of the drugs, the claim there might be such a witness is too speculative to show a reasonable probability that available evidence was not uncovered because of a deficient investigation so as to establish prejudice. (Compare In re Sixto (1989) 48 Cal.3d 1247, 1263 [to support habeas corpus relief, declarations were submitted from potential witnesses who were willing to testify at trial but who had not been contacted by trial counsel].) Accordingly, the petition fails to state a prima facie case for relief premised on counsels failure to present witness testimony regarding Waynes ownership.
4. Request for Evidentiary Hearing
Hills makes a general argument that his trial counsel was incompetent because he failed to investigate the information that Wayne was the owner of the drugs and that, at a minimum, because of this deficiency an evidentiary hearing is warranted. For example, he asserts his counsel should have sought discovery of the law enforcement field interview reports identifying the other persons at the residence at the time of his arrest. We reject this argument because when, as here, the defendant fails to set forth a prima facie case for relief in his petition, no further habeas corpus proceedings are required. (People v. Duvall, supra, 9 Cal.4th at p. 475.) For a claim alleging ineffective assistance of counsel, a showing of prejudice is part of defendants prima facie case. Absent indications of the existence of some admissible and available evidence to show Waynes ownership, no prejudice can arise from counsels failure to investigate. As we stated, no declarations were submitted showing that Robertson, Wayne, or any other person other than Eden was contacted for purposes of the new trial motion or this habeas corpus petition to determine if they had knowledge of the ownership of the drugs. As to Eden, she clearly declined to testify. Without some showing there was actual evidence missed by defense counsel, Hills cannot carry his burden of establishing prejudice. Accordingly, no further proceedings are warranted.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: McCONNELL, P. J. and OROURKE, J.