Filed 6/22/17 P. v. Tallo CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
PETER LAD TALLO,
Defendant and Appellant.

A148130

(Marin County
Super. Ct. No. SC194698A)


Peter Lad Tallo (appellant) appeals from a judgment entered after a jury convicted him of receipt of a stolen vehicle (Pen. Code, § 496d, subd. (a) ) and misdemeanor possession of burglar tools (§ 466). The trial court found true an alleged prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and an alleged prior prison term commitment (§ 667.5, subd. (b)) and sentenced him to six years in state prison. Appellant contends the judgment must be reversed because he was provided with ineffective assistance of counsel. We reject the contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information was filed October 19, 2015, charging appellant with receipt of a stolen vehicle (§ 496d, subd. (a), count 1) and misdemeanor possession of burglar tools (§ 466, count 2). The information alleged one prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior prison term commitment (§ 667.5, subd. (b)).
The information stemmed from an incident relating to a 1984 Mercedes vehicle (the Mercedes) that was donated to Saint Vincent de Paul Society (St. Vincent de Paul), a charitable organization that operates a program in which vehicles are donated to the organization, repaired if necessary, then sold.
On August 11, 2015, a representative at St. Vincent de Paul took the Mercedes to Fernando’s Auto Repair for servicing and repairs. Due to delays in the delivery of parts necessary to make the repairs, the Mercedes was scheduled to remain at the shop for several months. The shop owner, Jose Mazariegos, parked the Mercedes on his property and kept the keys inside the shop.
In early to mid-September 2015, appellant approached Mazariegos at the shop and asked if the Mercedes was for sale. Mazariegos gave appellant the phone number of Bill Eberhart, who was in charge of St. Vincent de Paul’s vehicle donation program. The following week, appellant returned to the shop two more times, and on his second visit, he asked to test drive the Mercedes. Mazariegos advised appellant that he needed Eberhart’s permission to allow a test drive of the Mercedes.
Several days later, Mazariegos saw appellant a third time. This time, appellant and a companion were peering under the Mercedes’s hood, and one of the doors to the Mercedes was open. Mazariegos did not know how appellant gained access to the Mercedes because its doors had been locked and Mazariegos had the keys. When questioned, appellant responded that he had spoken to Eberhart and that Eberhart was on his way to the shop to allow appellant to test drive the Mercedes. Mazariegos secured and locked the Mercedes, and told appellant to wait for Eberhart. Appellant and his companion waited for quite some time, sitting by the Mercedes. After about 30 minutes, Mazariegos called Eberhart to remind him about his appointment with appellant. Eberhart responded that he had no appointment with appellant. Appellant and his companion left. At trial, Eberhart testified that he did not know appellant and that appellant had never called him.
Shortly after appellant’s third visit to the shop, the Mercedes went missing. Mazariegos contacted Eberhart and the police. On September 22, 2015, as Mazariegos stood outside his shop, he spotted the Mercedes, which was traveling along a nearby street. Mazariegos jumped into his sports utility vehicle (SUV) and followed the Mercedes. When Mazariegos caught up with the Mercedes, he saw appellant in the driver’s seat and another passenger in the front seat. Appellant unsuccessfully attempted to get away by driving around the SUV, but Mazariegos was able to stop him by boxing the Mercedes in with his SUV. Appellant’s passenger fled on foot. Mazariegos called the police.
San Rafael Police Officer Robert Cleland, who arrived at the scene moments later, found the Mercedes blocked by the SUV and still running, with a key in the ignition. He then noticed that the Mercedes’s vehicle identification number (VIN) plate was missing. The VIN plate was later found in a fanny pack belonging to appellant. A search of appellant’s person revealed that he was in possession of several keys, including a shaved or uncut key. Cleland opined that such a key is used to steal cars. Cleland later determined that appellant had ordered a replacement ignition key for the Mercedes from Marin RAB Motors. A receipt showed that appellant received the replacement ignition key from RAB Motors on September 16, 2015.
Two audio excerpts from Cleland’s body camera were played for the jury. According to a transcript from the footage obtained from the body camera, appellant told Cleland that he had been talking to Eberhart about purchasing the Mercedes from him. Appellant said Eberhart had called him “about three times” and had asked for $2,000 for the Mercedes. Appellant said he got the keys to the Mercedes from “the owner” and that he was on his way to make a deposit towards the purchase of the car.
Appellant testified that he tried to reach Eberhart by phone numerous times after learning from Mazariegos that the Mercedes would be available for purchase. After he was unable to reach Eberhart, he had the Mercedes towed to a local Mercedes dealership and had replacement car keys made. He suggested that he had no intention of stealing the Mercedes as evidenced by the fact that he accurately identified himself and provided his contact information when ordering the new keys. He believed he had a right to take the Mercedes to have new keys made because he has been a member at St. Vincent de Paul for about 35 years and had “a good reputation there.”
Appellant further testified that on September 22, 2015, he was headed to Mazariegos’s shop with the Mercedes when he was stopped and confronted by Mazariegos. On the day of his arrest, appellant had $956 in cash and five money orders totaling another $100, and was planning to purchase the Mercedes for his son. As to why the VIN plate was found in his pouch, appellant explained that he had put it away after it fell off. He denied possessing shaved car keys, and said the keys that were found in his possession were merely “worn.” Appellant admitted prior convictions for a 1989 assault with a deadly weapon conviction, a 2001 “spousal injury” conviction, and a 2015 vandalism conviction.
A jury found appellant guilty as charged. The trial court found the alleged priors were true and thereafter imposed a sentence of six years in state prison.
DISCUSSION
Appellant contends he was provided with ineffective assistance of counsel because trial counsel asked him about his 1989 prior conviction during his direct examination even though the trial court had previously excluded evidence of that conviction. We conclude his claim fails because the record does not disclose a reasonable probability of a better result absent the challenged testimony.
To demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show that: (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Haskett (1990) 52 Cal.3d 210, 248; Strickland v. Washington (1984) 466 U.S. 668, 687.) “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” (Strickland v. Washington, supra, 466 U.S. at p. 700.) “ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105.)
As to the first prong of deficient representation, “[t]he question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” (Harrington v. Richter, supra, 562 U.S. at p. 105.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Strickland v. Washington, supra, 466 U.S. at p. 689.) “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Ibid.)
To meet the test for prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) In assessing prejudice, “the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” (Harrington v. Richter, supra, 562 U.S. at p. 111.) “The likelihood of a different result must be substantial, not just conceivable.” (Id. at pp. 111–112.)
“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies,” and, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Here, the prosecutor offered five prior moral turpitude convictions to impeach appellant should he testify at trial. At a pretrial hearing, defense counsel argued that under Evidence Code, section 352, all of the prior convictions were more prejudicial than probative. Following argument, the trial court ruled that the three most recent convictions could be used to impeach appellant, i.e., a 2015 conviction for felony vandalism, a 2008 conviction for defrauding an innkeeper, and a 2001 conviction for corporal injury on a spouse resulting in a traumatic condition.
On direct examination, appellant admitted a 2015 felony vandalism conviction from Marin County, a 2001 spousal injury conviction from Alameda County, and a 1989 conviction for assault with a deadly weapon from Marin County—a conviction that had been previously excluded. Appellant did not admit the 2008 fraud conviction that had previously been ruled admissible. Out of the jury’s presence, the trial court asked defense counsel why she had asked appellant about the excluded 1989 conviction. The court said, “I’m curious why you brought it up. My pessimistic perspective is that you want the jury to think this is a three strikes case so they nullify and don’t convict your client of a felony.” Counsel said she had relied on her notes, and said she had made a “mistake.”
Appellant argues that counsel’s performance was deficient because she brought up the 1989 conviction and failed to request CALCRIM No. 316, which provides in part, “If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness’s testimony.” Even assuming that defense counsel’s performance was deficient, we conclude appellant’s contention fails because he has not shown there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to him.
Appellant argues he was prejudiced because “counsel allowed the jury to consider the assault with a deadly weapon conviction and other prior felony convictions as evidence of appellant’s criminal disposition.” There were never any statements made to the jury, however, that appellant’s convictions showed his propensity to commit crimes. Rather, the prosecutor stated during closing argument, “And we heard from the defendant about his prior record. That can be considered by you in assessing and weighing his credibility.” Appellant was impeached with two other permissible crimes of moral turpitude—the 2001 spousal injury conviction and the 2015 felony vandalism conviction—and the 1989 conviction therefore amounted to cumulative impeachment evidence.
Moreover, appellant’s guilt was overwhelming. He admitted taking the Mercedes and ordering and receiving replacement car keys without authorization. The jury heard evidence that appellant attempted to drive away and that Mazariegos had to use his SUV to box the Mercedes in to prevent appellant’s escape. The jury also heard audio from Cleland’s body camera showing that appellant lied to Cleland that he had obtained the keys to the Mercedes from Eberhart, and that Eberhart had called him three times and had offered to sell the Mercedes to him for $2,000. The Mercedes’s VIN plate was found in appellant’s fanny pack, and a search of appellant’s person revealed that he was in possession of a shaved key, which is used to steal cars. In light of the overwhelming evidence, there was not a reasonable probability of a better result, had the jury not heard about appellant’s 1989 conviction.
DISPOSITION
The judgment is affirmed.
 

_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.











A148130