P. v. Jones

Filed 7/31/07 P. v. Jones CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

Robert Jeffery Jones appeals a judgment of the Napa County Superior Court entered after a jury convicted him of felony vandalism. He claims the conviction must be reversed for the following reasons: (1) the trial court erred in concluding defense counsel committed a discovery violation; (2) the trial court abused its discretion in instructing the jury with CALJIC 2.28 and limiting the scope of defense experts testimony; (3) the trial court violated his constitutional right to compulsory process by limiting the scope of defense experts testimony; and (4) defense counsels actions amounted to ineffective assistance of counsel. We reject appellants claims and affirm his conviction.

Factual And Procedural Background

The Crime

Barbara Peebles testified she was alone in her office at the Napa Register (the Register), the local newspaper, at about 1:00 a.m. on March 24, 2005, when she heard the steel front doors to the building slam shut. She thought a coworker had momentarily returned, but when she did not hear anyone leave the building again, she stepped out of her office to check the halls.

Approximately 30 seconds later, a man wearing a black jacket and black jeans stepped into her line of vision and stood still. She could see the profile of the man who, at that point, was about 35 to 45 feet away. She was not sure whether he was wearing brown or black shoes, as it was dark, and she was focused on trying to determine whether he was someone who was legitimately in the building. Apparently unaware of Peebles, the man turned away and looked into the window of the publishers office. He tried to open the door, but it was locked. He continued down the hall, until Peebles lost sight of him. She believed she saw the man for a total of 45 seconds to one minute. In court, she identified appellant as the man she saw in the building.

Peebles returned to her office and called her fianc to tell him someone was in the building and she wanted him to get down here right now, fast. She heard thrashing sounds but did not open her door. After some time passed, she decided to see if her fianc had arrived, because she knew he did not have a key to the building. She walked to the front door, quietly opened it and looked out. She saw a white haze and thought there was a fire. She rushed back to her office to call 911. At the same time, her fianc came to her office and told her he had entered through the center doors, which were open. He called the police department, located across the street.

When Peebles went outside, a police officer was in the parking lot, talking to appellant. The officer asked Peebles for a brief description of what had occurred, then asked her whether appellant was the man she had seen inside the building. She told the officers she had only seen the man from the side, so the officers turned appellant sideways, at which point she stated he was the man she had seen in the building.

After speaking to the officer, Peebles went back inside. She saw a jacket inside the center doors of the building. She heard the water running in the sink in the lunch room. The refrigerator door was open and there was food all over the floor. The first aid kit was open and the vending machines were sprayed with white powder. She looked in another room and saw white powder floating in the air, and on the floor. Computers had been pulled off of tables and had also been sprayed with white powder.

Officer Aaron Medina testified that on March 24, 2005, he was pulling into the police department when he heard a call regarding an incident at the Register across the street. He decided to investigate, and drove toward the Register, when appellant walked over to him and said his jacket was inside the building and there were cameras everywhere. According to Medina, appellant said he wanted the officer to hit his (appellants) head into the car. Medina did not arrest appellant, but conveyed what he had observed to other officers who arrived at the scene. On cross-examination, Medina admitted that when he testified at the preliminary hearing, he did not remember appellant stating that his jacket was inside the building. He also did not make note of that statement in his written report.

Officer Kyle Upchurch testified he was dispatched to the Register and arrived to find Medina with appellant. He asked appellant why he was in the building, and appellant responded that a group of kids had forced him to go inside. Appellant insisted on being placed in handcuffs and called Upchurch profane names. Appellant also dropped to the ground and told Upchurch to stop beating him. Upchurch believed appellant was delusional or hallucinating.

Officer Thomas Peterson testified he responded to a dispatch call and retrieved a leather jacket from the floor inside the Register building. Appellant was wearing a green shirt with cream stripes and tan, khaki pants. At the time Peebles identified appellant, she was about 75 to 100 feet away from appellant. When Peterson went inside the building, he could not avoid stepping on white powder, which he later learned had been sprayed from a fire extinguisher. He acknowledged he did not see any of the powder on appellants clothes. He found a fire extinguisher in the building and looked for fingerprints he could lift, but did not find any.

Procedural Background

On June 9, 2005, the Napa County District Attorney filed an information charging appellant with felony vandalism. The trial in the case was set for Monday, November 14, 2005. On Wednesday, November 9, 2005, defense counsel stated his intent to call an eyewitness identification expert, and requested a continuance on the ground that his expert was not available during the first week of trial, although he might be available on Wednesday, November 16. The prosecutor objected to the continuance on the basis that defense counsel had not filed a written motion for continuance and had not given notice to the People regarding the expert witness. The trial court denied the request for continuance, stating that if the expert was available on November 16, he could testify at that time.

On November 14, 2005, defense counsel once again requested a continuance, stating his expert witness, Dr. Scott Fraser, was not available to testify until the week of November 28. Defense counsel advised the court that Fraser had testified as an expert in one of his prior cases, would qualify as an expert in appellants case, and would provide important testimony. The prosecutor argued the request was late, as counsel had had the case for several months, yet did not disclose the experts name until that day. Defense counsel explained that he wished to, but had been unable to retain an expert earlier because appellant was involved in divorce proceedings and did not have access to his funds, which he needed in order to retain an expert. Defense counsel stated that he had been asking appellants family law attorney since September to obtain an order releasing appellants funds, but the family law court had just released $10,000 to appellant on Thursday, November 10. The prosecutor countered that defense counsel should have disclosed the expert, and could have withdrawn the witness in the event appellants funds did not become available. The prosecutor added that he would not be available to try the case until February if the trial were continued. The court denied the defense motion for a continuance on the grounds the request was untimely; it would be difficult to recalendar the matter; and the defense had failed to comply with disclosure requirements.

On the afternoon of November 14, 2005, defense counsel informed the court that Fraser had adjusted his schedule and was available to testify on Wednesday, November 16. The prosecutor objected to the late disclosure and said the experts name was the only information he had been provided. On Tuesday, November 15, before opening statements, defense counsel reiterated that Fraser was available to testify the next day. The prosecutor stated that defense counsel waited until very late in the game to mention an expert witness, and had just provided him with a transcript of a previous trial at which Fraser testified. Thereafter, the prosecutor proceeded to put his witnesses on the stand.

On Wednesday, November 16, 2005, outside the presence of the jury, defense counsel confirmed that Fraser was present. After resting his case-in-chief, the prosecutor objected to Frasers testimony, stating he would be prejudiced because he had just been provided with Frasers resume and two sets of material relating to the experts testimony, and had been able to meet with Fraser for only 10 minutes that morning. He stated: On Monday of this week, I started again telling him [defense counsel], you know, give me something on this individual. Where is his resume? Where is the stuff? Defense counsel explained that he did not consult with the expert until Tuesday, November 8. He stated he gave the prosecutor a copy of Frasers previous testimony on November 15, and that on the morning of November 16, he gave the prosecutor Frasers resume and other documents, which defense counsel had received on the evening of November 15.

The court accepted defense counsels representation that he was not able to formalize the retaining of Dr. Fraser until the funds were released in the family law case. The court further stated: I think there was good cause for late disclosure. However, the court also expressed concern about prejudice to the prosecutor. Before the noon recess, the court stated it was inclined to limit Frasers testimony to common sense principles regarding eyewitness identification, which the prosecutor could deal with, and to disallow quasi-scientific analysis of subjects and studies. The court noted it was also inclined to instruct the jury with CALJIC No. 2.28, which would inform the jury of the defendants failure to timely disclose the existence of Fraser as a defense witness. The court noted that a continuance of the trial would be problematic, as [w]e may start losing jurors. The prosecutor was also unavailable the following week.

After the noon recess, the prosecutor stated he had met with Fraser for one hour and 35 minutes over lunch, during which they reviewed the experts qualifications and discussed some of the studies on which he was going to rely. They were not able to cover much ground in the limited time available.

The court held a hearing regarding Frasers qualifications and his anticipated testimony. After examining his background, the court ruled that Fraser had made a prima facie showing of his general expertise in psychology. The court ruled it would limit Frasers testimony to general principles understood to be relevant in evaluating the accuracy of eyewitness identification. It would not allow him to testify regarding statistical analyses, or to render opinions regarding the reliability of eyewitness identification, except to explain the general issues that impact the validity of, and the weight to be given to, eyewitness testimony. The court ruled that Fraser would have to stay away from the details of studies, . . . [and] from hypotheticals that apply to this case. The court also excluded any testimony on the Rule of 15, a principle that, according to the expert, provides that the reliability of an identification from beyond 15 meters is less than 5 percent.

Before Fraser testified, the court instructed the jury with CALJIC No. 2.28.^[1] Fraser then testified that events that are encoded in a faulty or compromised manner are more likely to result in an inaccurate recollection. He stated that people most accurately identify an individual who has unique characteristics such as scars, tattoos, a limp or a stutter, and that the highest rate of recognition occurs when a person is viewed from a three quarter angle, where two thirds of the front of the face and about half of the side profile can be seen. He acknowledged that an identification strictly from profile could be accurate but said that seeing someone from the back would aid an identification only if something about the rear view of the person was distinctive.

Fraser explained the duration overestimation principle, which provides that victims and witnesses consistently overestimate the amount of time they view a person. Research also shows that in recalling clothing, people are not accurate with colors, but are accurate in recalling light versus dark, as well as bold patterns such as big stripes and polka dots. He testified that single person displays for purposes of identification generally result in false identifications because they are suggestive.

Fraser explained the doctrine of recollection inflation, which states that once a victim or witness identifies an individual, he or she will subconsciously continue to select the same individual, regardless of whether or not it was initially correct. He stated that an incorrect identification does not mean a person is lying, and gave the example of an actual criminal case in which a bank teller said she looked at the robber as he collected the money and sincerely believed she saw the robbers face, yet a videotape showed her on the floor, not looking up once. Fraser expressed no opinion relating to the accuracy of Peebless identification of appellant.

The jury found appellant guilty of felony vandalism, and the trial court sentenced him to 354 days in county jail and three years probation. Appellant filed a timely notice of appeal.

Discussion

I. Defense Counsels Disclosure of the Expert Witness
Was Untimely

Appellant asserts the trial court should not have imposed any sanctions because defense counsel did not violate any discovery statute. We disagree.

Criminal discovery in California is governed principally by Penal Code section 1054 et seq.^[2] (In re Littlefield (1993) 5 Cal.4th 122, 129.) Section 1054.3, subdivision (a), requires the defendant and his or her attorney to disclose to the prosecutor [t]he names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons. Section 1054.7 provides: The disclosures . . . shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. Good cause is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement. Persons whom the defense intends to call as witnesses at trial, in the context of section 1054.3, subdivision (a), include  all witnesses it reasonably anticipates it is likely to call. . . .  [Citation]. (Littlefield, at p. 130.) The facts related to the potential discovery violation in this case are undisputed; thus, we review de novo the issue of whether the trial courts determination that defense counsel violated the discovery statutes was erroneous. (People v. Karriker (2007) 149 Cal.App.4th 763, 774 [de novo review where facts are undisputed].)

The record does not show that defense counsel should have disclosed Fraser as an expert witness at least 30 days prior to the trial. For a court to conclude that a party has violated its obligation to disclose, the record must affirmatively demonstrate that a specific witness or witnesses were known to and intended to be called . . . but were undisclosed. (People v. Tillis (1998) 18 Cal.4th 284, 292.) Appellate courts should not engage in speculation about witnesses whose identity or existence is not demonstrated on the face of the record, as any other conclusion threatens to invade counsels discretion whether to call a witness. (Ibid.) The record does not affirmatively show that defense counsel intended, more than 30 days before trial, to call Fraser as a witness. Although defense counsel had been speaking to appellants family law attorney as early as two months before trial about obtaining the funds necessary to retain an expert witness, and Fraser had testified as an expert in one of defense counsels prior cases, there is nothing in the record indicating that he intended to call Fraser, and not another individual, as the defense expert, in the event appellants funds became available. He was also uncertain as to whether appellants funds would become available in time for him to consult with, and retain, an expert. We will not speculate as to whether defense counsel determined before, or after, the 30-day mark to call Fraser as the expert witness.

However, defense counsel did violate the discovery statutes by failing to provide disclosure immediately after he decided to call Fraser as a witness. When defense counsel announced on November 9 that he intended to use an eyewitness identification expert, he had already consulted with Fraser, as he later explained to the court, yet he did not disclose Frasers name and address at that time. On November 10, the family law court released $10,000 of appellants funds to him, and it became clear that appellant would be able to retain Fraser as his expert; however, defense counsel did not disclose the experts name until November 14. He did not produce the transcript of Frasers prior testimony until November 15, and did not provide the prosecutor with Frasers resume and other materials until November 16. In light of the fact that trial was scheduled for November 14, immediate disclosure required defense counsel to disclose Frasers name and address to the prosecutor, at the very latest, by November 10, by which point he had consulted with Fraser and the funds to retain him had become available. Because he did not do so, but waited until November 14 to disclose Frasers name, and until November 16 to produce his resume, defense counsel violated sections 1054.3 and 1054.7, and sanctions were appropriate.

Appellant asserts the trial courts statement, I think there was good cause for late disclosure, supports his position that there was no discovery violation because the court essentially excused the late disclosure by accept[ing] defense counsels explanation that he had not been able to retain . . . Fraser until shortly before the trial because the money to pay him had been tied up in family court. We disagree with appellants interpretation of the trial courts statement.

As defined by statute, the good cause that would excuse an untimely disclosure is limited to situations in which a party refuses to disclose a known witness in order to protect the witnesss safety or to avoid compromising an ongoing investigation. ( 1054.7.) The trial court was aware of this statutory definition of good cause, as it asked the prosecutor and defense counsel whether they were aware of any cases defining good cause more broadly than the statute. Neither the court nor counsel knew of any. Subsequently, the trial court stated, I think there was good cause for late disclosure. Viewing this statement in the context of the entire discussion, it is clear the court used the term good cause to mean that appellants untimely disclosure was not willful. Thus, the trial courts statement that there was good cause does not support appellants position that there was no discovery violation.

Moreover, appellants reliance on Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, is misplaced. Sandeffer noted that the determination whether to call a witness is peculiarly within the discretion of counsel. (Id. at p. 678.) Sandeffer then held the trial court exceeded its authority in compelling the production of information and reports of an expert, where defense counsel had consulted with the expert but had not yet decided whether to call the expert as a witness. (Ibid.) In contrast, here, we conclude defense counsel was required to disclose Fraser no later than November 10, when it became clear he would be called as an expert.

II. The Trial Court Did Not Commit Prejudicial Error
in Instructing the Jury with CALJIC No. 2.28 and
Limiting Frasers Testimony

Appellant contends that even if defense counsel violated the discovery statutes, the trial court committed prejudicial error by instructing the jury with CALJIC No. 2.28 and limiting his experts testimony. We reject this contention.

Section 1054.5, subdivision (b), provides that a court may make any order necessary to enforce the [discovery statutes], including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure. Under federal law, the factors to be considered in determining whether the exclusion of testimony is an appropriate sanction include: (1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of [ ] surprise or prejudice, and (4) whether the violation was willful. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264, citing Taylor v. Illinois (1988) 484 U.S. 400, 415, fn. 19.) In California, there is an additional statutory requirement. Subdivision (c) of . . . section 1054.4 allows a trial court to preclude the testimony of a witness only if all other sanctions have been exhausted.  (Edwards, at p. 1264.) The type of sanction imposed is within the trial courts sound discretion (see People v. Gill (1997) 60 Cal.App.4th 743, 749; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203) and is reviewed under an abuse of discretion standard (Edwards,at p. 1264).

A.Defense Counsel Invited the Error of Instructing
the Jury with CALJIC No. 2.28

Several cases have criticized CALJIC No. 2.28 for (1) suggesting that the defendant, and not his or her attorney, is responsible for the noncompliance; (2) allowing the jury to speculate that the prosecutor was actually harmed by the late discovery; (3) not providing the jury with guidance as to how to evaluate the evidence in light of the late disclosure; and (4) not cautioning the jury that untimely discovery, standing alone, is insufficient to support a guilty verdict. (People v. Bell (2004) 118 Cal.App.4th 249, 254‑256; see also People v. Cabral (2004) 121 Cal.App.4th 748, 752; People v. Saucedo (2004) 121 Cal.App.4th 937, 942-943.) In those cases, the instruction was given over the timely objection of the defendant. Here, however, defense counsel first suggested that the court instruct the jury with CALJIC No. 2.28. A defendant cannot invite the court to commit an error and thereafter be heard to complain that the error warrants reversal. (People v. Horning (2004) 34 Cal.4th 871, 905.) The doctrine of invited error applies to instructions if the record reflects that counsel made a tactical choice. (People v. Valdez(2004) 32 Cal.4th 73, 115.)

Before defense counsel suggested that the court instruct the jury with CALJIC No. 2.28, the court had commented that the prosecutor was ahead on points on the issue of whether the testimony should be excluded. The court stated to defense counsel: Im concerned about the late disclosure, and the fact that [the prosecutor] . . . has not really been given an opportunity to prepare to respond to this gentleman on voir dire or cross-examination. How do you respond to that? Defense counsel responded that one option would be to allow the testimony, but to instruct the jury with CALJIC No 2.28. It is apparent from the above exchange that defense counsel suggested the instruction for the tactical purpose of dissuading the court from precluding Frasers testimony in its entirety. Thus, any error was invited.

Further, any error in so instructing the jury was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Bell, supra, 118 Cal.App.4th at p. 257 [applied Watson standard in evaluating whether error in instructing jury with CALJIC No. 2.28 was harmless].) In evaluating whether the error in giving this instruction was harmless, Bell focused on the strength of the prosecutions case, which it concluded consisted essentially of [the testimony of] two eyewitnesses, and was not overwhelming. (Bell, at p. 257; People v. Lawson (2005) 131 Cal.App.4th 1242, 1249.) As we explain below, the evidence of appellants guilt was sufficient to justify the conclusion that any error was harmless.

B.The Trial Court Did Not Commit Prejudicial
Error in Limiting Frasers Testimony

Appellant asserts the trial court committed prejudicial error in limiting Frasers testimony because defense counsels discovery violation was not willful. Appellant argues a less severe sanction, such as a continuance, would have been appropriate. As noted, section 1054.4, subdivision (c), allows a trial court to preclude the testimony of a witness  only if all other sanctions have been exhausted.  (People v. Edwards, supra, 17 Cal.App.4th at p. 1264.) [P]reclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony. (Id. at p. 1263.)

Where, as here, the court is seeking to reduce the prejudice from nondisclosure rather than impose a punishment for willful misconduct, consideration must be given to whatever remedy would resolve or significantly resolve the disadvantage, for example, a continuance or a delay in presentation of the testimony to allow the surprised party the opportunity to prepare. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757.) [W]here the court is only seeking to address prejudice, . . . the prejudice would necessarily have to be substantial and irremediable for the court to order preclusion. (Id. at p. 1757.) [A]bsent a showing of significant prejudice and willful conduct, exclusion of testimony is not appropriate as punishment. To conclude otherwise might well place upon the truth-finding process an imprimatur of unreliability inconsistent with confidence in a finding of guilt. (Id. at p. 1758.)

Here, the record supports the trial courts determination that defense counsels discovery violation was not willful, and the People do not dispute that this finding was correct. Defense counsel explained he did not know whether he would be able to retain Fraser as an expert until appellants funds became available, and the record shows it was only one week before trial that the family law court released $10,000 to appellant. Further, defense counsel requested two continuances, which he presumably would not have done had the purpose behind his untimely disclosure been to surprise the prosecutor and deny him adequate time to prepare.

Even if a discovery violation is not willful, however, a trial court may order preclusion if the prejudice to the prosecutor would be substantial and irremediable. (People v. Gonzales, supra, 22 Cal.App.4th at p. 1757.) For example, the court in People v. Jackson, supra, 15 Cal.App.4th at p. 1203, held that preclusion of a witness statement, which defense counsel had failed to timely disclose, was proper, even if counsels violation was not willful, because the witnesss whereabouts were unknown at the time of trial, and her unavailability prevented the People from interviewing or cross-examining her. Jackson held: The People would have been unduly prejudiced by admitting the testimony without an opportunity for cross-examination, and the integrity of the adversary process would have been compromised as parties with little to lose would be encouraged to not comply with pretrial discovery rules. (Ibid.)

Here, there was no such significant prejudice to the prosecutor, because Fraser was available and known to the prosecutor. He had met with Fraser for over one and one-half hours, and a continuance would have allowed him to further interview him, and adequately prepare for cross-examination. Although a continuance in this case may have been difficult due to scheduling problems, precluding an important defense witnesss testimony for that reason, where there was no willful violation, would not have been an appropriate sanction.

The People, however, argue the trial court here did not preclude Fraser from testifying, but only limited the scope of his testimony. All of the cases on which appellant relies deal with preclusion of evidence, and none of them support his position that limiting the scope of testimony is the equivalent of precluding that testimony. People v. Lamb (2006) 136 Cal.App.4th 575 drew a distinction between the two types of sanctions. There, the trial court found the defendant had committed a discovery violation and refused to permit a defense witness to provide surrebuttal testimony. The defendant argued this ruling was error, as  all other sanctions  had not  been exhausted.  (Id. at pp. 581-582.) Lamb held: [T]he court did not exclude the testimony of Todd [the witness]. Todd and his associate testified at great length to explain their investigation and conclusions. The courts sanction was limited in scope, and extended only to refusing to permit additional surrebuttal testimony. The trial court did not abuse its discretion. (Id. at p. 582.) Similarly, here, the trial court did not preclude Fraser from testifying, instead only limiting the scope of his testimony, and allowing him to testify at length regarding virtually all of the principles relating to the reliability of eyewitness testimony, thereby enabling appellant to present his defense.

Even assuming, without deciding, that the limitation of Frasers testimony was so substantial as to constitute preclusion, we would conclude the error in imposing that sanction was harmless. It is not reasonably probable that appellant would have achieved a more favorable result if Fraser had provided his full testimony and this testimony had achieved the desired effect of neutralizing Peebless eyewitness identification. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Aside from Peebless testimony, there was overwhelming evidence of appellants guilt. Shortly after the incident, appellant was in the parking lot adjacent to the building in which the vandalism occurred, and he admitted to the police that he had left his jacket inside the building. The police later recovered a black jacket inside the building. When asked why he was in the building, he responded that a group of kids had forced him to go inside, and also said there were cameras everywhere. The crime occurred at about 1:00 a.m., and other than Peebles and her fianc, appellant was the only person in or around the building. Thus, any error in limiting Frasers testimony or undermining it with the challenged instruction was harmless.

C. The Trial Court Did Not Violate Appellants
Constitutional Right to Compulsory Process

Appellant asserts that the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 should be used in determining whether any error in limiting Frasers testimony was harmless, because the limitation of Frasers testimony violated his constitutional right to compulsory process under the Sixth Amendment. We conclude there was no constitutional violation. Further, even if the Chapman standard were applied, any error in limiting Frasers testimony was harmless.

The Sixth Amendment grants an accused the right to have compulsory process for obtaining witnesses in his favor. . . . [] . . . [] . . . Just as an accused has the right to confront the prosecutions witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. (Washington v. Texas (1967) 388 U.S. 14, 18-19.)

Appellant waived the right to assert this contention on appeal, as he did not raise it in the trial court. (See United States v. Olano (1993) 507 U.S. 725, 731.) The claim also fails on the merits. As noted, the trial court in this case did not prohibit Fraser from testifying. It allowed him to testify, with several minor restrictions that did not deprive the jury of his views. Appellant has not provided us with any authority supporting its contention that a court violates a defendants right to compulsory process when it limits a defense witnesss testimony.

Even if the trial courts limitation of Frasers testimony was an error of a constitutional dimension, the error was harmless beyond a reasonable doubt. The limitation on Frasers testimony would not have affected the guilty verdict because, as we have explained in detail above, there was overwhelming evidence of appellants guilt, even if the jury had disregarded Peebless eyewitness identification testimony.

III. Appellants Claim of Ineffective Assistance of
Counsel Fails

Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694 and In re Wilson (1992) 3 Cal.4th 945, 950.) To show ineffective assistance of counsel, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Dennis, at p. 541.) The defendant also bears the burden of establishing prejudice as a   demonstrable reality  ; speculation as to the effect of counsels alleged errors or omissions is insufficient to satisfy this burden. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

Appellant has not made the requisite showing. He asserts that defense counsel was ineffective because he: (1) did not aggressively challenge the trial courts assumption that he had to establish good cause for the late disclosure of Fraser; (2) did not argue that a continuance was essentially compelled by the discovery statutes and the cases construing them; (3) did not assert that Joness constitutional right to compulsory process was violated; and (4) did not object to the trial courts decision to instruct the jury with CALJIC No. 2.28. None of the above alleged errors or omissions amounts to ineffective assistance of counsel.

First, defense counsel was justified in not aggressively challeng[ing] the trial courts assumption regarding good cause because the trial court was correct in stating that good cause as defined in section 1054.7 was limited to factors that did not exist in this case. Second, defense counsel repeatedly argued for a continuance. The fact that he did not state that the statutes and cases essentially compelled the granting of a continuance does not render his representation ineffective. Third, defense counsel did not render ineffective assistance by failing to assert a federal constitutional violation because, as discussed above, no such violation occurred. Fourth, defense counsel made a sound tactical decision and was effective in suggesting that the court instruct the jury with CALJIC No. 2.28 because he did so to avoid a ruling excluding Frasers testimony.

Further, even if defense counsels performance fell below an objective standard of reasonableness, it did not prejudice appellant, as there is no reasonable probability that, but for defense counsels failings, appellant would have obtained a more favorable result. The claim of ineffective assistance of counsel fails.

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

GEMELLO, J.

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^[1] CALJIC No. 2.28, as given, provided: The prosecution and the defense are required to disclose to each other before trial the evidence which each intends to present at trial so as to promote the ascertainment of the truth, save court time, and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut a noncomplying partys evidence. [] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. [] In this case, the defendant failed to timely disclose the existence of Dr. Fraser as a defense witness. Although the defendants failure to timely disclose evidence was without lawful justification, the court has under the law permitted the production of this evidence during a trial. In other words, I will allow Dr. Fraser to testify. [] The weight and significance of any delayed disclosure are matters for your consideration; however, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial, or subject matters already established by other credible evidence.

^[2] All further section references are to the Penal Code.