Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA306512, Barbara R. Johnson, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
An amended information charged defendant Nathaniel Lee Lewis with assaulting Kaleena Robertson with a deadly weapon on or about April 24, 2005, in violation of Penal Code section 245, subdivision (a)(1), and attempting to dissuade Robertson from testifying between January 2 and April 30, 2005, in violation of section 136.1, subdivision (a)(2). A prior “strike” conviction was also alleged (§§ 1170.12, subds. (a)-(d)), along with a prior serious felony (§ 667, subd. (a)) and a single prior prison term for two prior convictions (§ 667.5, subd. (b)). A jury acquitted defendant of the section 245 offense, but found him guilty of the lesser included offense of assault (§ 240) and the attempt to dissuade Robertson from testifying. In a bench trial, the court found all prior conviction-related allegations true. Defendant was sentenced to the middle term of two years for the witness intimidation count, plus a consecutive five-year term for the serious felony enhancement. A six-month concurrent term was imposed for the assault.
All further statutory references are to the Penal Code.
The trial court granted defendant’s motion to dismiss the “strike” pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We make the following observations regarding this dismissal pursuant to Romero: the record contains no legal justification to support the order of dismissal; the trial court did not orally state reasons in furtherance of justice to support its order; the minutes of the trial court do not contain the mandatory statement of reasons for dismissal in furtherance of justice as required by section 1385; and the People have not appealed. Because of the absence of a People’s appeal, there is no basis for reversal of the order granting the Romero motion.
In his timely appeal, defendant contends defense counsel rendered ineffective assistance of counsel in derogation of the Sixth Amendment by violating the reciprocal discovery obligations and thereby causing the trial court to bar the introduction of a photograph and witness testimony concerning the color of defendant’s Lexus. As we explain, defendant’s claim fails because the record is insufficient to establish defendant’s culpability for the discovery violation and, in any event, the barred evidence was of such marginal impeachment value that we cannot find a reasonable likelihood of prejudice arising out of counsel’s alleged deficient performance.
STATEMENT OF FACTS
Prosecution
On December 4, 2003, Kaleena Robertson testified as a prosecution witness in a Los Angeles Superior Court preliminary hearing in which Marlon “MacBone” Brandon was the defendant. She also testified against Brandon in the ensuing jury trial in March 2005. In January 2005, a few months before the trial, Robertson exited a bus in Hollywood and saw defendant at the carwash next to the bus stop. Defendant told her Brandon’s trial was coming up and she would be called to testify against Brandon. Defendant said that Brandon would have to serve a substantial sentence if Robertson testified. On the other hand, if Robertson did not testify at trial, she would only “do a couple of days in jail.” Defendant offered her “money for bail or just money in general.” Robertson replied that she would not go to court. She was afraid “bad things” would happen to her if she did. Robertson had been a prostitute until 2002. Brandon and defendant are pimps. Among prostitutes and pimps, it was considered improper and dangerous to assist the authorities.
Robertson next saw defendant the following month as she left a party in Hollywood. Defendant told her there would be “consequences” if she testified at Brandon’s trial. When she asked what he meant, defendant replied in a harsh tone, “Go to court, and you will see.”
On another occasion before Brandon’s trial, Robertson had a confrontation with defendant at an internet café in Hollywood. When Robertson denied that she would be testifying at the trial, defendant told Robertson that he had transcripts of her preliminary hearing testimony. Defendant said, “I know you’re not going to do anything. I got paperwork on you.” Robertson understood this as a threat that defendant and others would “do something” violent to her if she testified against Brandon. Defendant followed Robertson to the house she shared with her mother. From outside, he yelled that she was a “snitch” who would “get what was coming to [her].” In March, before Brandon’s trial, defendant returned to her residence and threw rocks at her mother’s patio window, frightening Robertson. Nevertheless, when Robertson received a subpoena for the Brandon trial, she testified despite her fear.
After the trial, on April 24, 2005, Robertson was at a supermarket in Hollywood at approximately 5:00 p.m. When she was outside the market, defendant pulled up beside her and got out of his car, along with “like six to eight girls” Robertson did not know. Defendant said, in reference to her testifying against Brandon: “I told you I’d catch up to you,” and struck her in the face with his fist. Robertson fell to the ground, where she was hit and kicked by defendant and the females. During that time, one of the assailants struck her on the head with a brick. The following day, Robertson went to the hospital. She was treated for the injuries she sustained in the attack—two black eyes, a “big knot on [her] forehead,” and bruising and abrasions all over her body.
On cross-examination, Robertson testified that defendant had driven up to her in the supermarket parking lot in a silver or cream-colored Lexus. The windows were tinted, so she could not see who was inside. She recognized the car as belonging to defendant. After testifying in the Brandon trial, Robertson worked at Jack in the Box for approximately four months. In September 2005, defendant ordered a meal from her. She did not say anything about her testimony at the Brandon trial, nor did she discuss having reported defendant’s involvement in the April 24 incident to the police.
Defense
In September or October 2005, Chandra Estes visited the Jack in the Box restaurant and spoke to Robertson about defendant. Defendant was not present. Robertson told Estes that Robertson “felt bad about testifying against [defendant] based on the fact that she’s known him for so many years and she didn’t want to do it because it was a lie.” In May 2006, the two met on Hollywood Boulevard and Robertson told Estes she “felt bad” about testifying “on [defendant] because he never did anything to her. And she also stated that she did not want to come to court but the officers [are] pressuring her to come to court, and if she didn’t come to court, that they would put a warrant out for her arrest.” In a subsequent conversation inside the courthouse that month, Robertson told Estes that the police brought her to testify against defendant, but she would not do so. Estes saw Robertson at an internet café in June. Robertson told her that the police wanted her to testify against defendant, but she was ambivalent. She did not want to “get in trouble with the police,” but she “didn’t want to tell on [defendant] because he did nothing wrong.” According to Estes, Robertson worked as a prostitute in 2005.
On cross-examination, Estes admitted being convicted for selling methamphetamine in September 2006. She also suffered an arson conviction. She has been arrested numerous times for prostitution. She was also arrested in connection with the prosecution of defendant.
Defendant’s sister, Selenar Lewis, testified that in December 2005 she had lunch with defendant at the Jack in the Box when Robertson approached defendant. Selenar overheard Robertson apologize to defendant for lying to the police about him. Robertson did not want to make those false statements about him, but said she “did not have any choice.” Defendant did not respond; he just smiled at her. Robertson did not appear to be afraid of defendant. Estes was also present. Defendant had driven them to the Jack in the Box in a black Lexus. Selenar had never seen her brother drive a grey Lexus. After December 2005, the black Lexus had been wrecked and towed away. As of April 24, 2005, defendant had no car at all.
Although the record shows Selenar was asked about December 2005 as the date of the car accident, in context it appears that Selenar must have meant December 2004 because she testified defendant had no car in April 2005 because of the accident.
Detective Keith R. Haight testified that he was the investigating officer on the Brandon prosecution and Robertson was a witness. He was also involved in the investigation of the underlying prosecution. In that connection, the detective did not investigate whether defendant owned a gray vehicle. He received information that Robertson received threats about testifying against defendant. There was no information that defendant himself made any such threats. Defendant was arrested on February 14, 2006, in San Diego. Following that, Robertson told the detective that she had received threats about testifying and she was afraid. In response, the police moved her away for her protection as a witness. The detective did not threaten her to testify against defendant.
DISCUSSION
Defendant contends his trial counsel rendered constitutionally ineffective assistance by causing the exclusion of evidence through his failure to comply with discovery obligations. The governing law is well settled. “To secure reversal of a conviction upon the ground ofineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland); see Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
“The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)
Here, the critical event occurred on Wednesday, October 25, 2006, in the morning session of the fifth day of trial. Following Selenar Lewis’s testimony that defendant owned a black Lexus, but had no car at the time of the April 24 incident because that car had been wrecked and towed away, the defense sought to introduce a photograph of the black Lexus. The prosecution objected on the ground that the exhibit should have been disclosed prior to trial pursuant to defendant’s reciprocal discovery obligations. Since the trial’s start, the prosecutor had repeatedly and consistently requested discovery from the defense, but none was provided. In a hearing outside the jury’s presence, defendant’s counsel, Theodore Flier, represented that he “[r]ecently found out from the defendant that he did not have a car, and he gave me this picture.” Mr. Flier intended to ask the witness whether the photograph depicted the black Lexus that was in the accident before the April 24 incident. When pressed, Mr. Flier stated that he received the photograph the day before. The court noted that the photograph did not appear to be recently taken. Giving Mr. Flier the “benefit of the doubt,” the court found that counsel had not received the photograph before trial. Nevertheless, the discovery obligations applied to defendant and counsel. As defendant had access to the evidence before trial, and there was no justification for the failure to produce the evidence to the prosecution in a timely manner—and because its belated production deprived the prosecution of the opportunity to investigate the evidence—the court ruled that the defense could not examine Selenar concerning the photograph until the prosecution had an opportunity to conduct an investigation.
In the morning session on October 24, during cross-examination, Mr. Flier inquired as to the color of defendant’s car. On direct examination, Robertson had not testified as to the car’s color.
At that point, the trial court also threatened to sanction Mr. Flier if he persisted in making verbal attacks against, and arguing with, the prosecutor.
That afternoon, following the testimony of Detective Haight, Mr. Flier sought to corroborate Selenar’s testimony by calling defendant’s brother to testify that at the time of the April 24 incident, defendant did not own or possess a grey or black Lexus. The prosecutor objected on the ground that the defense violated its discovery obligations by failing to produce the evidence earlier. The trial court agreed with the prosecutor and found the proposed testimony comprised discoverable information that the defense culpably failed to timely disclose. Mr. Flier did not attempt to justify his late disclosure, but requested as an alternative to barring the evidence that the jury be instructed that the defense violated its discovery obligations. The trial court rejected that request, finding that the evidence “should have been disclosed early on.”
At the time of the new trial motion, the defense made additional claims as to what the car-related evidence would have shown, such as that the Lexus had been grey, but was painted black just before the April 24 incident. No supporting evidence, however, was presented with the motion. The trial court denied the motion, finding that the car’s color was not significantly material to the jury’s resolution defendant’s guilt.
We first address the performance prong of the Sixth Amendment test. Certainly, defendant is correct as a general matter that there can never be a legitimate tactical basis for violating a lawful court order. But the specific question before us is whether the record contains sufficient evidence to overcome the presumption of attorney competence so as to establish trial counsel’s culpability for the discovery violation. In that regard, the record is silent as to counsel’s pretrial efforts to obtain the car-related evidence and his culpability for failing to disclose it during the course of discovery. We therefore cannot assume that it was counsel, rather than defendant himself, who was responsible for the late production of the evidence. At the same time, however, the record does make it clear that Mr. Flier was culpably responsible for failing to disclose the photograph and Selenar’s testimony when he received it the day before. Nevertheless, because the essential aspects of Selenar’s testimony were admitted and the record is otherwise silent on defense counsel’s culpability, we hold the record inadequate to establish deficient performance. (See, e.g., People v. Michaels (2002) 28 Cal.4th 486, 526.)
Turning to the prejudice prong, we find no reasonable probability that the failure to present additional car-related evidence affected the jury’s finding. The evidence concerning the April 24 incident was relevant only to the assault offense. The witness intimidation offense was premised on defendant’s efforts to prevent Robertson from testifying at the Brandon trial, which took place before the April 24 incident. As to the assault, we agree with the trial court that the excluded evidence had little, if any, material value to the defense case. As defense counsel conceded at the time the trial court refused to permit testimony from defendant’s brother, additional evidence that defendant owned a black (and not a silver) Lexus that was not drivable at the time of the April 24 incident would have been cumulative to the testimony by defendant’s sister Selenar. Corroborative testimony from a similarly biased source—defendant’s brother—would have added little to the defense case.
Even if believed, additional photographic, documentary, and other evidence as to defendant’s car would have provided little in the way of effective impeachment evidence. Robertson testified that the car was silver or cream colored, not black. Accordingly, even conclusive proof that defendant did not drive up to the assault scene in his own (or any other) black car would not have significantly undercut the prosecution case. Most critically, none of the excluded evidence would have proved that defendant lacked access to a grey or cream colored Lexus on the relevant date.
Defendant’s ineffective assistance claim fails.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.