P. v. Overson
Filed 9/5/06 P. v. Overson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
| THE PEOPLE, Plaintiff and Respondent, v. FREDERICK OVERSON, Defendant and Appellant. | 2d Crim. No. B180884 (Super. Ct. No. F361203) (San Luis Obispo County) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
|
THE COURT:
It is ordered that the opinion filed herein on August 22, 2006, be modified as follows:
Page 5, first full paragraph, is deleted and the following paragraph is inserted in its place:
Overson claims his trial counsel was ineffective for not timely filing the Pitchess motion. For ineffective assistance, he must show his counsel's performance was inadequate and that it was prejudicial to his case. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Quinn (2001) 86 Cal.App.4th 1290, 1295.) The Attorney General claims Overson is not able to meet the second requirement. He notes that Overson's counsel filed the motion because of information he received from a witness he would call at trial and did not call the witness because he concluded the witness was not credible. Such speculation does not show ineffective assistance of counsel. Where the record is inadequate to show counsel's reasons for his decisions or what evidence he could have developed, the proper procedure is to raise these claims in a habeas proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
[There is no change in the judgment.]
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