Filed 12/15/15 P. v. Jeske CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041130
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130274A)

         v.

DANIEL EDWARD JESKE,

         Defendant and Appellant.


In re DANIEL EDWARD JESKE,                                           H042424

         on Habeas Corpus.
                                                                   ORDER MODIFYING OPINION
                                                                   NO CHANGE IN JUDGMENT


BY THE COURT:
         It is ordered that the opinion filed herein on November 30, 2015, be modified in
the following particulars:
         On page 15, the last full paragraph, the second sentence is modified to read:
“For example, after holding an evidentiary hearing on the matter, the trial court may
determine that a jury would not have found Lowe to be credible and that there is no
reasonable probability that defendant would have received a more favorable outcome
even if she had testified.”


         There is no change in judgment.
Dated:
                             Premo, J.




         Rushing, P.J.       Elia, J.




                         2
Filed 11/30/15 P. v. Jeske CA6 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041130
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130274A)

         v.

DANIEL EDWARD JESKE,

         Defendant and Appellant.


In re DANIEL EDWARD JESKE,                                           H042424

         on Habeas Corpus.


         A jury convicted defendant Daniel Edward Jeske of residential burglary (Pen.
Code, § 459).1 On appeal, defendant argues that his trial counsel rendered ineffective
assistance when he failed to request that the jury be instructed that a criminal defendant
cannot be convicted based solely on DNA evidence if the DNA evidence is found on a
moveable object at the crime scene. In a separate petition for writ of habeas corpus,
defendant also argues that his trial counsel rendered ineffective assistance when he failed
to call defendant’s mother to testify as an alibi witness during the trial.
         For the reasons set forth below, we reject defendant’s claim of ineffective
assistance of counsel on appeal. However, we find that defendant has stated a prima


         1
             Unspecified statutory references are to the Penal Code.
facie case for relief in his accompanying petition for writ of habeas corpus. Therefore,
we issue an order to show cause returnable to the superior court.
                       FACTUAL AND PROCEDURAL BACKGROUND
       The Information
       On May 2, 2013, defendant was charged by information with a count of residential
burglary (§ 459). It was also alleged that he had served a prior prison term under
section 667.5. Defendant pleaded not guilty and the matter proceeded to trial.
       The Prosecution’s Case
       In March 2012, John Mims and his wife, Tamara Mims, lived with their children
in a house.2 John and Tamara both smoked cigarettes, and the cigarettes they smoked
had an orange filter. Neither John nor Tamara smoked inside the house. They only
smoked outside in a designated area in the backyard.
       On March 20, 2012, John took a shower in the master bedroom in the morning and
left for work. John said that there were no cigarette butts in the shower area when he left
the house that morning. While at work, John received a phone call from his housekeeper,
Eldemira Nolasco. Nolasco asked John to come home, because something seemed amiss
in the house. Nolasco said that the drawers were open and that it appeared that items may
be missing.
       John testified that when he arrived back home, parts of the house seemed
undisturbed but other parts appeared to have been ransacked. Tamara’s jewelry box had
been mostly emptied. John’s jewelry box had been opened. Various items had been
taken from the house, including laptop computers, camera equipment, and clothing. John
called his wife and the police.


       2
       Since John and Tamara share the same surname, we refer to them by their first
names for clarity.


                                             2
       Nolasco said that when she initially came to the Mims’s house, she did not see
anything out of the ordinary outside the house and she did not see anybody else around.
However, when she went inside the house she saw that cupboards had been opened and
the Mims’s credit cards were on the floor. She also noticed that the jewelry box in the
master bedroom’s closet had been emptied. The day prior to the burglary there were
approximately 200 to 300 pieces of jewelry in the box.
       Nolasco discovered a cigarette butt on the floor of the bathroom in the master
bedroom. Nolasco said that she did not think the cigarette butt belonged to John or
Tamara, because it was a white cigarette. John also said that he did not think the
cigarette butt belonged to him or his wife, because it did not have an orange-colored
filter. John asserted that nobody touched the cigarette butt before the police arrived.
Nolasco initially swept the cigarette butt and some hair into a pile, but John told her not
to touch anything so she left the pile alone. Tamara, who had taken a shower in the
master bedroom before she left for work, said that she did not see a cigarette butt in the
bathroom area that morning.
       That same day, Monterey Police Department Officer Ravinder Bal arrived at the
house in response to the burglary. Bal said that Nolasco directed him to the cigarette butt
that had been found on the floor of the bathroom. Bal wore gloves and collected the
cigarette butt into evidence. He also dusted the door handles for fingerprints and
attempted to obtain DNA from the door handles. No fingerprints or DNA were found on
the door handles.
       John and Tamara created a list of the items missing from their house for insurance
purposes. Included on the list were various pieces of jewelry that had been taken during
the burglary. Tamara said that she was missing a jade pendant. However, Tamara did
not list the jade pendant on the form submitted to the insurance company. She explained
that their insurance policy had a $2,500 limit for missing jewelry, so listing items beyond

                                              3
the limit would not have served a purpose. At trial, Tamara identified a jade pendant
taken from defendant’s bedroom as the one taken from her house.
       Criminalist Sarah Calvin testified at trial. She tested the DNA obtained from the
cigarette butt and obtained a profile. Calvin asserted that the DNA was a match to
defendant.
       The Defense
       Defendant testified on his own behalf. He said that he had purchased the jade
pendant that was found in his bedroom and furnished a receipt from a store showing the
purchase of a silver charm, a pin with a jade stone, and a silver rope chain. Defendant
asserted that he did not know why the sales clerk identified the pendant as a “pin” on the
receipt. He said that he had bought the items so that his daughter could wear the jade
piece as a necklace.
       Defendant further stated that he did not smoke cigarettes. He smoked loose
tobacco, which does not produce the kind of cigarette butt found in the Mims’s house.
       Defendant denied that he was ever in the vicinity of the Mims’s house. It was
stipulated that there was a GPS device lawfully attached to defendant’s car the day of the
burglary. The GPS device showed that defendant’s car was not close to the Mims’s
house at the time the crime occurred.
       Defendant said that he was at home with his mother, Ramona Lowe, at the time of
the burglary. Lowe was not called to testify during the trial.
       The Verdict and Sentencing
       After the trial, the jury found defendant guilty of residential burglary. Defendant
waived his right to a jury trial on the prior prison conviction, which the court later found
to be true.
       The court sentenced defendant to the upper term of six years for the burglary. The
court also struck the one-year enhancement imposed under section 667.5, subdivision (b)

                                              4
pursuant to section 1385. Defendant was awarded 50 days of conduct credit and 51 days
of actual custody credit for a total of 101 days. The court also imposed a restitution fund
fine of $500 under section 1202.4, subdivision (b) and imposed and suspended a
matching $500 parole revocation fine under section 1202.45. Defendant was ordered to
pay restitution to the victim in an amount to be determined. The trial court retained
jurisdiction for the purposes of determining restitution. Defendant appealed.
                                        DISCUSSION
       On appeal, defendant argues that his trial counsel rendered ineffective assistance
of counsel when he failed to request that the jury be instructed that a criminal defendant
cannot be convicted based solely on DNA evidence if the DNA evidence is found on a
moveable object at the crime scene. In his petition for writ of habeas corpus, defendant
claims that his trial counsel also rendered ineffective assistance when he failed to call his
mother, Lowe, to testify in order to corroborate his alibi. We address these claims
separately.
   1. Overview of Principles Governing Ineffective Assistance of Counsel Claims
       To succeed on a claim of ineffective assistance of counsel, defendant must show
both that counsel failed to act in a manner to be expected of a reasonably competent
attorney acting as a diligent advocate and that defendant was prejudiced thereby. (People
v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S.
668, 684 [discussing federal constitutional rights]; People v. Pope (1979) 23 Cal.3d 412,
422 [discussing both state and federal constitutional rights].)
       “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining
a claim of ineffective assistance of counsel [citation], and there is a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” ’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’
[citation], and we have explained that ‘courts should not second-guess reasonable, if

                                              5
difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the
context of the available facts.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
       “In the usual case, where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.”
(People v. Weaver, supra, 26 Cal.4th at p. 926.)
       We “ ‘need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.’ ” (In re Jackson (1992)
3 Cal.4th 578, 604, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) A
defendant establishes prejudice by demonstrating that without the deficient performance
there is a reasonable probability the result would have been more favorable. In other
words, even if counsel’s actions fall below the threshold of reasonableness, a defendant
must still show that counsel’s actions were prejudicial. (People v. Ledesma, supra, 43
Cal.3d at p. 218.) A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not
simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank
(1997) 16 Cal.4th 1223, 1241.)
   2. Failure to Request a “DNA Only” Jury Instruction
       First, we address defendant’s claim that his trial counsel rendered ineffective
assistance by failing to request a jury instruction on the sufficiency of the DNA evidence.
He argues that case law establishes that a criminal defendant cannot be convicted based
solely on DNA evidence found on a moveable object at the crime scene, and the jury
should have been instructed accordingly.



                                               6
       A “defendant is entitled to have the jury instructed on the law applicable to the
evidence he presents.” (People v. Ratliff (1986) 41 Cal.3d 675, 694.) Based on the
evidence presented at trial, defendant claims he was entitled to a jury instruction pursuant
to People v. Arevalo (2014) 225 Cal.App.4th 612, a case from the Fourth Appellate
District that was subsequently ordered depublished. Defendant argues that even though
Arevalo was depublished, the principles underlying the decision are sound, and that
Arevalo held that DNA found on a moveable object at the crime scene is not sufficient to
support a conviction. However, as defendant himself notes, Arevalo was subsequently
ordered depublished. Cases that are depublished or unpublished cannot be relied on as
authority and should not be relied on by a court or by parties in any action, except for in a
narrow set of circumstances, none of which are present here. (Cal. Rules of Court,
rule 8.1115.) Any reliance on Arevalo is unfounded.
       Despite his inability to rely on Arevalo, defendant persists in his claim that a jury
instruction was warranted. He cites to several cases involving the sufficiency of
fingerprint evidence to support a conviction and argues that his case is analogous to these
“fingerprint-only” cases because he was convicted based solely on the presence of his
DNA on the cigarette butt. Defendant’s dependence on these “fingerprint-only” cases
should be rejected. None of the cases that defendant cites establishes that a jury should
be instructed that a criminal defendant cannot be convicted of a criminal offense based
solely on DNA found on a moveable object.
       For example, defendant relies on Birt v. Superior Court (1973) 34 Cal.App.3d 934
(Birt). In Birt, the petitioner sought to set aside an information charging her with
burglary. She had been charged after her fingerprints were found on a cigarette lighter in
a van that was parked near the burglary victim’s house. (Id. at pp. 936-937.) On appeal,
the court concluded that the information must be set aside for lack of probable cause.
The court opined that the cigarette lighter was a readily moveable object and the lighter

                                              7
was not shown to have been taken from the victim’s home. (Id. at p. 938.) Further, there
was no other evidence that showed that any of the petitioner’s fingerprints were found
either inside the burglarized house or on any of the stolen items. (Ibid.) Furthermore, the
van where the cigarette lighter was found was a rental vehicle that was readily available
to the public. (Ibid.) Therefore, the court opined that at most, the petitioner’s
fingerprints on the lighter showed that she had been inside the van at some unknown time
and place, and there was no other evidence to indicate where or when. (Ibid.) Therefore,
“[o]nly by guesswork, speculation, or conjecture can it be inferred that petitioner was
inside the van, or in the area, at the time of the . . . burglary.” (Ibid.)
       Defendant also cites to Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes). In
Mikes, a murder victim was found dead in the basement of his burglarized fix-it shop.
Officers determined that the victim had been killed with a post from a disassembled
turnstile that the victim had purchased at a hardware store’s going out of business sale.
(Id. at p. 355.) Several fingerprints on the post belonged to defendant. (Ibid.) The
defendant was convicted of first degree murder, and he filed a federal habeas petition
arguing that insufficient evidence supported his conviction. (Id. at p. 356.) The
fingerprints found on the post were the only pieces of evidence linking the defendant to
the crime, and expert testimony had disclosed that fingerprints could last indefinitely.
(Id. at p. 358.) Therefore, the Ninth Circuit concluded that the evidence was not
sufficient to support the conviction, because it was reasonably possible that defendant’s
fingerprints were placed on the post prior to the victim’s purchase of the turnstile. (Id. at
p. 359.)
       Neither Birt nor Mikes stand for the proposition that in fingerprint-only cases, a
specific jury instruction should be given regarding the sufficiency of the fingerprint
evidence. These cases simply reiterate the well-established principle that a defendant’s
conviction must be supported by sufficient evidence. From our review of the record, it

                                                8
appears that the court properly instructed the jury on the sufficiency of evidence to
support a conviction, including, but not limited to, an instruction on the presumption of
evidence and the requirement of proof beyond a reasonable doubt (CALCRIM No. 220),
the definition of evidence (CALCRIM No. 222), the differences between direct and
circumstantial evidence (CALCRIM No. 223), reliance on circumstantial evidence
(CALCRIM No. 224), the credibility of witnesses (CALCRIM No. 226), and the
elements of the offense of burglary (CALCRIM No. 1700).
       Additionally, defendant’s claim that DNA-only cases are analogous to
fingerprint-only cases does not aid him. Contrary to his argument, there have been
numerous cases where courts have held that a fingerprint alone can support a burglary
conviction if the fingerprint is left inside the structure or on part of the structure with an
unusual access. (See, e.g., People v. Bright (1967) 251 Cal.App.2d 395; People v. Corral
(1964) 224 Cal.App.2d 300; People v. Rodis (1956) 145 Cal.App.2d 44.)
       Additionally, neither Birt nor Mikes stand for the proposition that fingerprints
alone can never sustain a conviction. In Birt, the court concluded there was insufficient
evidence, because the cigarette lighter with the defendant’s fingerprints was found in a
public rental vehicle parked outside the burglarized home. (Birt, supra, 34 Cal.App.3d at
pp. 936-938.) In Mikes, the fingerprint evidence was found on a pole that had previously
been accessible to the public since it was part of a turnstile purchased from a hardware
store. (Mikes, supra, 947 F.2d at pp. 355-359.) Under these specific factual scenarios,
courts concluded that the fingerprints alone were not sufficient, in part because there was
no nexus between the fingerprints and the crime.
       However, defendant’s case is distinguishable from cases like Birt and Mikes for a
simple and obvious reason. Unlike Birt and Mikes, defendant’s guilt was not established
solely by the presence of his DNA at the scene. There was other evidence of his guilt,



                                               9
including Tamara’s testimony that the jade pendant found in defendant’s possession was
one of the items stolen from the house during the burglary.
       Defendant argues that the jury should have been advised that if they discounted
Tamara’s testimony regarding her ownership of the jade pendant, they could not convict
him by relying only on the DNA evidence. Defendant claims that such an instruction was
necessary, because without it the prosecution was relieved of the burden to prove every
element of the crime charged.
       We disagree. “Upon request, a trial court must give jury instructions ‘that
“pinpoint . . . the theory of the defense,” ’ but it can refuse instructions that highlight
‘ “specific evidence as such.” ’ [Citations.] Because the latter type of instruction
‘invite[s] the jury to draw inferences favorable to one of the parties from specified items
of evidence,’ it is considered ‘argumentative’ and therefore should not be given.”
(People v. Earp (1999) 20 Cal.4th 826, 886.)
       Here, any suggested instruction targeting the sufficiency of the DNA evidence
would be exclusively and argumentatively devoted to highlighting specific evidence.
Accordingly, it would have been futile for defendant’s trial counsel to attempt to seek
such an instruction. (See People v. Hughes (2002) 27 Cal.4th 287, 361.) Furthermore,
defendant does not cite to any viable authority holding that DNA alone cannot support a
burglary conviction.
       In short, defendant’s appellate claim of ineffective assistance of counsel fails. His
defense counsel’s failure to request a jury instruction on “DNA-only” evidence that had
no support in the existing law was more than reasonable. Furthermore, the case law cited
to by defendant is largely irrelevant to this case, because his conviction was not entirely
reliant on the presence of his DNA at the scene. Accordingly, defendant fails to show
that his trial counsel did not act in the manner of a reasonably competent attorney.



                                               10
   3. Failure to Call Defendant’s Mother as an Alibi Witness
       Next, we address the argument raised in defendant’s petition for writ of habeas
corpus. In his petition, defendant alleges that his trial counsel rendered ineffective
assistance when he failed to call defendant’s mother as an alibi witness during the trial.
       a. A Defendant’s Burden on a Petition for Writ of Habeas Corpus
       “A habeas corpus petitioner bears the burden of establishing that the judgment
under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove,
by a preponderance of the evidence, facts that establish a basis for relief on habeas
corpus.” (In re Visciotti (1996) 14 Cal.4th 325, 351.)
       “An appellate court receiving [a petition for a writ of habeas corpus] evaluates it
by asking whether, assuming the petition’s factual allegations are true, the petitioner
would be entitled to relief. [Citations.] If no prima facie case for relief is stated, the
court will summarily deny the petition. If, however, the court finds the factual
allegations, taken as true, establish a prima facie case for relief, the court will issue an
[order to show cause (OSC)]. [Citations.] . . . Issuance of an OSC, therefore, indicates
the issuing court’s preliminary assessment that the petitioner would be entitled to relief if
his factual allegations are proved.” (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
       Defendant alleges in his habeas corpus petition that his trial counsel rendered
ineffective assistance. As articulated above, to prevail on a claim of ineffective
assistance of counsel, defendant must identify those acts or admissions made by his
counsel that “fell below an objective standard of reasonableness” and must demonstrate
prejudice, that is, that absent his counsel’s acts or omissions there was a reasonable
probability that the proceedings would have reached a different result. (People v. Dickey
(2005) 35 Cal.4th 884, 907.) In order to prevail on a claim of ineffective assistance of
counsel for failing to call a potential witness, it must be shown that “the testimony of the
alleged additional defense witness was material, necessarily, or admissible, or that

                                              11
defense counsel did not exercise proper judgment in failing to call him [or her].” (People
v. Hill (1969) 70 Cal.2d 678, 690.)
       b. Evidence Supporting Defendant’s Petition for Writ of Habeas Corpus
       At trial, defendant testified that he was at home with his mother, Lowe, at the time
of the burglary. On cross-examination, defendant was asked if Lowe was present in court
that day. Defendant answered that Lowe was in court but was not going to testify
regarding his alibi. The prosecutor asked defendant if he thought it was important to
have his alibi witness testify under oath that he was at home at the time of the burglary.
Defendant answered that he thought it would be important but noted that the GPS data
obtained from his car indicated that he was at his house that morning.
       To support his petition for writ of habeas corpus, defendant submitted a signed
declaration. In his declaration, defendant stated that he and Lowe met with his trial
counsel in the months leading to the trial to discuss the case. Defendant said that Lowe
told his trial counsel that she was willing to testify that defendant was home with her
during the burglary. However, trial counsel told them that Lowe’s testimony was
unnecessary, since the GPS data obtained from defendant’s car indicated that he was not
at the victim’s house during the burglary. Also attached to the petition is a declaration
signed by Lowe, which corroborated defendant’s declaration.
       Defendant’s appellate counsel also submitted a signed declaration. Appellate
counsel declared that she contacted defendant’s trial counsel and asked him why he did
not call Lowe to testify during the trial. Trial counsel answered that he first learned about
defendant’s alibi during his cross-examination, when defendant asserted that he was with
Lowe at the time of the burglary. Trial counsel said that prior to this statement, defendant
had only claimed that he was not at the victim’s house during the burglary and had not
offered any potential alibi witnesses. Trial counsel further explained that he spoke with
Lowe at the courthouse after hearing defendant’s testimony, and Lowe told him that her

                                             12
son was with her at the time of the burglary and she would be willing to testify.
However, trial counsel asserted that he did not call Lowe to testify, because she had been
in the courtroom throughout the trial and was not on the witness list. Therefore, it would
have been “against the law” to call her as a witness. Trial counsel refused to sign a
declaration attesting to the above facts.
       c. Analysis
       In defendant’s case, we find that it is necessary to issue an order to show cause
returnable on the superior court, because there are factual conflicts in the evidence
submitted in support of the habeas corpus petition. Resolution of these factual conflicts
are vital to determining whether trial counsel’s performance fell below the standard of a
reasonably competent professional when he did not call Lowe as a witness.
       Defendant and Lowe both declared that trial counsel did not call Lowe as a
witness because he believed the GPS data from defendant’s car provided an unequivocal
alibi. However, as argued by the prosecution during closing argument, the GPS device
was attached to defendant’s car, not his person. Therefore, the GPS data did not
foreclose all possibility that defendant was present at the crime scene at the time of the
burglary. The GPS data merely indicated that defendant’s car was not there.
Accordingly, if trial counsel was informed before the trial of defendant’s alibi and
Lowe’s willingness to testify, failure to investigate the alibi or call her as a witness was
likely not a reasonable tactical decision.
       Trial counsel, however, offers a different version of the facts. In appellate
counsel’s signed declaration, trial counsel said that he did not learn of defendant’s alibi
until he was being cross-examined by the People, and by that point in the proceedings
Lowe had been present in the courtroom during the rest of the trial and was not on the
witness list. Trial counsel could not recall if he asked defendant about an alibi before
trial, but noted that he could not call Lowe as a witness that late in the proceedings

                                              13
because doing so would have been “against the law.” It is unclear whether trial counsel
meant that it would have been unlawful to call Lowe as a witness under section 1054.3,
or if doing so would be an unreasonable tactical strategy, because she would have been
easily impeachable since she was a close family member and would lack credibility since
she had already heard defendant testify regarding the alibi during the cross-examination.3
       In sum, there are factual disputes in the record regarding when trial counsel was
told that Lowe was an alibi witness who was ready and willing to testify and why trial
counsel declined to call her as a witness. These factual disputes are critical to
determining whether trial counsel’s performance was deficient. Therefore, issuing an
order to show cause returnable on the superior court is appropriate, since the court can
conduct an evidentiary hearing and determine what happened below.




       3
         Lowe would not necessarily have been precluded from testifying.
Section 1054.3, subdivision (a)(1) requires that a defendant and his or her attorney
disclose to the prosecution the names and addresses of all witnesses that will be called at
trial. Absent good cause, the disclosure of all witnesses must be made at least 30 days
before trial. (§ 1054.7.) If discovery obligations are not met, the trial court can make any
order necessary in order to enforce these obligations, “including, but not limited to,
immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a
witness or 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.” (§ 1054.5, subd. (b).) However, “[t]he court may prohibit the
testimony of a witness pursuant to [section 1054.5, subdivision (b)] only if all other
sanctions have been exhausted.” (Id., subd. (c).) Therefore, preclusion of Lowe’s
testimony would have been appropriate only if the trial court had exhausted all other
available sanctions, such as advising the jury of the late disclosure or granting a
continuance. Additionally, it is permissible for witnesses at a trial to be present during
the entirety of the trial. Evidence Code section 777 grants a trial court discretion to
exclude from the courtroom any witnesses that are not under examination so that
witnesses cannot hear the testimony of other witnesses. However, the making of such an
order is not a right; it is a discretionary choice by the trial court. (People v. Bales (1961)
189 Cal.App.2d 694, 702.)


                                             14
         The People argue that there is no need for this court to issue an order to show
cause, because defendant has failed to demonstrate prejudice. We disagree.
         The evidence against defendant was strong but not overwhelming. Defendant’s
DNA was found on the cigarette butt inside the burglarized home, but the item was small
and moveable. Although Tamara claimed that the jade pendant found in defendant’s
possession was one of the items stolen during the burglary, defendant furnished a receipt
for a jade pin and insisted that he purchased the item himself as a gift to his daughter.
The piece of jewelry was also not listed on the claims Tamara and John submitted to their
insurance company. Additionally, the prosecutor questioned defendant on
cross-examination about why his mother was not going to testify to confirm his alibi.
There were no witnesses placing defendant at the scene of the crime, and the GPS data
obtained from his car indicated, at the least, that his car was not present. Lowe’s
testimony corroborating defendant’s alibi, if credible, would have had some evidentiary
value.
         We emphasize that in a habeas corpus proceeding alleging ineffective assistance
of counsel, a “reasonable probability” for the prejudice prong of our analysis does not
mean that a favorable outcome would have been more likely. Rather, the more favorable
outcome must be sufficiently likely to undermine our confidence in the conviction. (In re
Fields (1990) 51 Cal.3d 1063, 1078.)
         Further, we do not mean to say that trial counsel’s actions were definitively
unreasonable and prejudicial. For example, after holding an evidentiary hearing on the
matter, the trial court may determine that mother’s testimony is not credible. If that is the
case, then no prejudice would have occurred. However, when evaluating defendant’s
claim on appeal we have no way of evaluating the credibility of a witness and we must
assume the facts alleged in the petition are true. After applying this standard of review,
we conclude that based on the record before us, defendant has sufficiently stated a prima

                                              15
facie case that he is entitled to relief. Whether his petition for writ of habeas corpus has
merit is an issue for determination in the first instance by the trial court.
                                        DISPOSITION
       The judgment is affirmed. With respect to defendant’s habeas corpus petition, let
an order to show cause issue returnable before the Monterey County Superior Court.




                                              16
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
