Opinion
D052138.
7-16-2009
THE PEOPLE, Plaintiff and Respondent, v. MARICUS TERRENCE GREEN, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted Maricus Terrence Green of the sale of cocaine base. (Health & Saf. Code, § 11352, subd. (a).) After finding that Green had a prior strike under Californias three strikes law and two prison priors, the trial court sentenced him to eight years in state prison. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).)
Green appeals, contending that his conviction must be reversed because the trial court erroneously: (i) declined to grant him a continuance to procure the testimony of a codefendant who Green believed would exonerate him; (ii) excluded favorable out-of-court statements by the codefendant; (iii) replaced a seated juror who claimed to be suffering from back pain with an alternate; and (iv) denied his request for a new trial without permitting testimony from the codefendant when the codefendant became available to testify after trial. As discussed below, we agree that the trial court erred in ruling on Greens new trial motion without allowing the defense to present the testimony of the subject of that motion — Greens codefendant — who had been brought to court for that purpose. Consequently, without expressing any opinion on the merits of the new trial motion, we remand for the trial court to hold a new hearing on the motion. In all other respects, we affirm the judgment.
FACTS
On December 21, 2006, a San Diego police officer working undercover approached Clyde Finley in the "C Street Corridor" — an area known for drug sales. Finley was walking alongside Green and another individual, later identified as Dennis Snowden.
The officer asked Finley if he had "a 20" or a "2-0," street slang for $20 worth of cocaine base. Finley nodded and indicated for the officer to follow him. Finley then stopped and talked briefly with Green. Green asked the officer for the money and the officer gave him a $20 bill. Green told Snowden to give the officer a 2-0 and Snowden handed a small rock to Green who handed it to the officer. The officer then asked Green for another 2-0 and Green again asked for money. Snowden handed Green another small rock, and Green broke it in two and handed one piece to the officer.
A prosecution witness testified that it is common practice when someone assists in a drug transaction for that person to receive either money or cocaine in return for their assistance.
The officer walked away from the men and signaled other officers who arrested Finley, Green and Snowden. Finley had the premarked funds used by the undercover officer in his possession along with additional cash. Snowden had rock cocaine in his possession. Green did not have any drugs or money on his person. Upon his arrest, Snowden stated, "It was my dope and my money."
The officer testified that after the transaction he observed that Green appeared to be handing "some paper objects" to Finley.
The small rock-like material that the officer obtained from Green was tested and determined to be a usable amount of cocaine base (just under .5 grams). A photograph of Green taken after the arrest was introduced into evidence.
Green testified on his own behalf. He stated that he was homeless and lives in a parking lot near the location where he was arrested. Green said he did not know Snowden or Finley but approached Finley for a cigarette, when a police officer approached and arrested him.
DISCUSSION
Green raises a number of challenges to his conviction. The challenges largely concern the arguably exculpatory statements and potential testimony of Greens codefendant, Snowden. Prior to addressing these challenges, we provide the pertinent background information regarding Snowden.
I
Codefendant Snowden
Snowden pleaded guilty on March 20, 2007, approximately six months prior to Greens trial. In exchange for Snowdens plea, the trial court agreed to sentence him to probation, with 180 days in custody: 90 days (i.e., time served) in county jail, plus 90 days in a residential drug treatment program. Although the deputy district attorney did not participate in the plea negotiation, he asked the trial court during the plea colloquy to insure that Snowden was "truthful as to what happened [i]n regards to his involvement and his co-defendant[]s involvement."
The trial court then asked Snowden about the offense. Snowden explained that he "carried and sold" the drugs which he received "from a gentleman by the name of T-Nutty." The court asked if T-Nutty was the codefendant Green, and Snowden responded, "No, sir." (The parties agree that "T-Nutty" is Finley.) The court asked, "[W]hat did your co-defendant in this case do?" Snowden stated, "Well, he was . . . there with me. You know, I was pretty high, Your Honor, and I had the drugs. I pretty much was carrying them; and upon the instruction, I just, you know, handed them to whoever had a hand out . . . [a]t the direction of Mr. T-Nutty." The deputy district attorney then asserted that Green asked Snowden for the drugs (not T-Nutty) and Snowden handed them to Green. The court asked Snowden if he gave the rock cocaine to Green, and Snowden responded, "Your Honor, I dont honestly remember that."
The trial court referred to Green as "Mr. Hawkins" during the colloquy. Hawkins is apparently Greens alias.
"[Court]: So you are saying that when you received the rock cocaine from T-Nutty, you gave it to another person; is that right?
"[Snowden]: An individual that he instructed me to give it to.
"[Court]: Okay. And the individual that he instructed you to give it to, was it a policeman, or you dont remember who it was?
"[Snowden]: At the time, I really dont remember. I was really tired and under the influence."
The deputy district attorney expressed frustration with Snowdens statements, stating that an earlier judge had given Snowden "a break" in the form of the plea agreement only if Snowden would "be honest and would tell us exactly that the co-defendant . . . asked him for the drugs. He in turn, gave the co-defendant the drugs to give to the officer. And that is not whats going on." Defense counsel objected, stating that the deal was only that Snowden be truthful and that "asking him to say something that hes not able to say, I think thats . . . bordering perjury." The trial court, stating "I am not going to not take a change of plea form because he wont point the finger at the other guy," accepted the plea.
Snowdens version of events appears again in the probation report prepared for his sentencing. The report states: Snowden "does not remember much about the specific transaction of the instant offense. In fact, he does not really remember Green being involved. There were a lot of people asking for drugs at that time." The report also emphasizes Snowdens contention that Finley was behind the sales and reflects Snowdens "confus[ion] as to [why] Finley was not arrested."
Finley was arrested and detained, but not prosecuted.
In July, at a trial call for Greens case, defense counsel indicated that Snowden was not available for trial and requested a ruling allowing the defense to introduce Snowdens statements in his plea colloquy and to the probation officer. The prosecutor objected to admitting the statements, noting as well that if they were admitted, "I probably would ask for the entire record of the statements to be offered so that the jury understands the circumstances." The prosecutor acknowledged that Snowdens statements "are somewhat exculpatory" of Green, but emphasized that they also included language undermining Snowdens ability to recall the events. The trial court ruled that the statements were inadmissible hearsay.
In light of the ruling, Greens counsel requested a 30-day continuance so that he could procure Snowdens appearance at trial. The prosecutor stated that she had no objection to the request, and the trial court granted the request, finding "good cause" for the continuance. (See Pen. Code, § 1050, subd. (e) ["Continuances shall be granted only upon a showing of good cause."].) The record reflects that the case was then continued at least two more times at the defenses request. In September 2007, at the final trial call (before a new trial judge), defense counsel again moved for a continuance because the defense had been unable to find Snowden, whose "location [wa]s unknown." The judge, emphasizing that "this case has been continued several times" for purposes of finding Snowden, determined that there was not good cause for a continuance and denied the request.
The judge then reexamined the issue of permitting the introduction of Snowdens out-of-court statements, but ultimately ruled that the statements were inadmissible hearsay. The trial court did allow the defense to introduce Snowdens statement to the police officer during his arrest that "[i]t was my dope and my money" as a statement against penal interest. (See Evid. Code, § 1230.)
II
The Trial Court Did Not Abuse Its Discretion in Declining to Grant a Continuance
Green argues that the trial court abused its discretion and violated his constitutional rights by refusing to grant another continuance of the trial so that he could attempt to procure Snowdens attendance at the trial. We disagree.
The governing case law is well established. "When a continuance is sought to secure the attendance of a witness, the defendant must establish `he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins).) The trial court, in ruling on the motion, must consider "`"not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion."" (Ibid.) The trial courts denial of a request for a continuance is reviewed for abuse of discretion. (Ibid.; Pen. Code, § 1050, subds. (e) & (a) [requiring continuances to be granted only upon a showing of "good cause," and codifying legislative finding that "criminal courts are becoming increasingly congested" and that "[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses"].)
In the instant case, we cannot conclude that the trial court abused its discretion. Even if the other requirements noted in Jenkins for the granting of a continuance to obtain a witnesss testimony were met, there was an inadequate showing that "`the testimony could be obtained within a reasonable time." (Jenkins, supra, 22 Cal.4th at p. 1037; People v. Beeler (1995) 9 Cal.4th 953, 1003 (Beeler) [explaining that to obtain a continuance to procure a witness, the moving party "must show . . . that such evidence could be obtained within a reasonable time"].) As the parties recognize, the case had been continued repeatedly for the purpose of procuring Snowdens attendance. These continuances had not resulted in any progress toward obtaining Snowdens presence and there was no date certain at which Snowden would become available. Given this procedural background, we cannot conclude that the trial court abused its discretion in declining the request for another continuance. (Jenkins, supra, 22 Cal.4th at p. 1037; Beeler, supra, 9 Cal.4th at p. 1003.)
The defense asserted only that Snowden was regularly in trouble with the law and would likely be arrested for a probation violation in the near future.
Having determined that the trial court did not abuse its discretion in denying Greens continuance requests, we also reject, for the same reasons, his conclusory assertion that the trial courts denial of his continuance request was so arbitrary as to violate his constitutional rights. (See Ungar v. Sarafite (1964) 376 U.S. 575, 589 ["it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel," and whether a "denial of a continuance is so arbitrary as to violate due process" depends on "the circumstances present in every case"]; People v. Beames (2007) 40 Cal.4th 907, 921 [same].)
III
The Trial Court Did Not Abuse Its Discretion in Excluding Snowdens Out-of-court Statements as Hearsay
In a related contention, Green argues that, given Snowdens unavailability for trial, the trial court abused its discretion in excluding Snowdens out-of-court statements suggesting Greens innocence. Green argues that these statements were admissible as statements against penal interest under the Evidence Code. (See Evid. Code, § 1230.)
The Evidence Code provides an exception to the hearsay rule for certain statements if the declarant is "unavailable" and the statement "so far subjected him to the risk of . . . criminal liability" that "a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) A trial courts decision as to whether a statement qualifies for admission under this provision — commonly referred to as the hearsay exception for statements against penal interest — is reviewed for an abuse of discretion. (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).)
Green argues that the statements described above were statements against Snowdens penal interest and, given Snowdens unavailability, should have been admitted at Greens trial. Greens contention fails to recognize, however, that the portions of Snowdens statements that exculpated Green were easily severable from those that were more clearly against Snowdens penal interest.
As our high court has explained, "[a] court may not, applying this hearsay exception, find a declarants statement sufficiently reliable for admission `"solely because it incorporates an admission of criminal culpability."" (Lawley, supra, 27 Cal.4th at p. 153.) In fact such statements are often particularly suspect because "`[o]ne of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature." (Ibid., quoting Williamson v. United States (1994) 512 U.S. 594, 599-600.) Thus, it is well settled that Evidence Code section 1230 does not render admissible "`"collateral assertions within declarations against penal interest"" and is "`"inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant."" (Lawley, at p. 153, quoting People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).)
In the instant case, the trial court acted within the scope of its discretion in applying these principles to exclude the proffered evidence — the portions of Snowdens out-of-court statements that were favorable to Greens defense — as not sufficiently against Snowdens penal interest to warrant admission. (See, e.g., Duarte, supra, 24 Cal.4th at p. 612 [explaining for purposes of applying Evid. Code, § 1230 that "in redacting [the declarants] statements, the court should have excised `any statement or portion of a statement . . . that was not specifically disserving to [the declarant]" (citation omitted)].) The court could reasonably conclude that Snowdens statements that he could not recall Greens participation in the drug sale did not "so far subject[] him to the risk of . . . criminal liability" that "a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
Implicitly recognizing this point, Green argues that Snowdens refusal to implicate Green, despite the prosecutors urging that he do so, should be deemed against his penal interest because it created a risk that the plea would fall through. Green cites no authority for this proposition and we are unconvinced. Although there was some dispute about this point during the colloquy, it did not appear that the terms of Snowdens plea agreement required him to incriminate Green. In fact, it is reasonably clear during the colloquy that the trial court (who would ultimately decide whether to accept the plea) was satisfied with Snowdens proffer so long as Snowden implicated himself and it was only the prosecutor, who was not party to the plea, who insisted on a statement inculpating Green. Given these circumstances, we cannot conclude that Snowdens resistance to the prosecutors request that he implicate Green "so far subjected" Snowden "to the risk of . . . criminal liability" that the trial courts refusal to admit the statements constitutes an abuse of discretion. (Evid. Code, § 1230.)
We also reject Greens suggestion that the trial courts failure to admit the hearsay statements amounted to constitutional error. The application of the prohibition of hearsay evidence along with the traditional hearsay exceptions, such as the exception for statements against penal interest, to both the prosecution and defense is a long-established feature of the American legal system. (See Chambers v. Mississippi (1973) 410 U.S. 284, 302 [recognizing that "perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay" along with the rules traditional "exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy"].) Thus, our high court has emphasized, "`"as a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [constitutional] right to present a defense."" (People v. Lucas (1995) 12 Cal.4th 415, 464 [rejecting claim that "the application of the general rule excluding hearsay evidence amounted to a denial of due process"]; Chambers, at p. 302 [recognizing that "the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence"].) In the instant case, we believe the general rule applies and the trial courts ruling that Snowdens out-of-court statements were inadmissible hearsay did not violate Greens constitutional rights. (Compare Chambers, at p. 302 [reversing because state court prohibited admission of out-of-court statement that "bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest"].)
IV
The Trial Courts Dismissal of a Juror Does Not Warrant Reversal
Green contends that the trial court violated his constitutional rights to due process and a unanimous jury verdict when it dismissed a juror during trial. We evaluate this contention after setting forth the pertinent procedural history.
A. Procedural History
After the jury had been sworn but prior to the presentation of evidence, the judge received a note from Juror No. 11 who requested to be excused due to a back condition. To support his request, the juror presented the trial court with medical documentation.
The trial court inquired of the juror. (People v. Dell (1991) 232 Cal.App.3d 248, 254 [noting that trial courts confronted with a jurors request to be excused generally conduct "a summary hearing to determine the factual basis for the disqualification or the sincerity of the jurors claim he or she is incapable of performing the duties of a juror"].) The juror explained that he had back surgery earlier in the month and although he thought he would be able to make it through the trial and "was trying to push myself to the limit to perform my civic duty," his efforts had been unsuccessful. The juror explained that he been in pain and experienced swelling during the previous day of jury selection and had taken Vicodin for the pain. The juror stated, "Thats why I was nodding off yesterday."
The court then discussed the matter with counsel. The court noted that it did not believe the juror was "malingering" or trying "to get out of jury service" and that, given the jurors statements that he was drowsy from the medication and in pain, the court was inclined to dismiss the juror. Defense counsel objected, emphasizing that he believed the juror favored the defense. Counsel failed to articulate any legal basis for the objection, stating "Im just maybe venting on the record, but I guess I would oppose his release just because, you know, he was very much part of my [strategic] calculus . . . ." The trial court dismissed the juror and replaced him with an alternate juror.
B. Applicable Law
The Penal Code provides the trial court with broad discretion to dismiss a juror for "good cause" during the course of a trial. The pertinent statute states in part:
"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (Pen. Code, § 1089.)
"`The determination of "good cause" rests in the sound discretion of the court . . ., and the courts finding thereof will be upheld if substantial evidence supports it . . . ." (People v. Fudge (1994) 7 Cal.4th 1075, 1099, citations omitted; Mitchell v. Superior Court (1984) 155 Cal.App.3d 624, 628 (Mitchell) ["the decision of the trial court" with respect to good cause for dismissal "should not be disturbed unless there was a clear and manifest abuse of . . . discretion"].)
C. Analysis
While conceding that the trial court has the authority to remove a juror for good cause pursuant to Penal Code section 1089, Green argues that the trial courts exercise of discretion in the instant case was flawed because there was no substantial evidence to support a finding of good cause. We disagree.
As noted above, Juror No. 11 requested to be dismissed from the jury, representing to the court that back pain interfered with his ability to function as a juror. The juror also stated that he had taken Vicodin for the pain, that the medication caused him to feel drowsy, and "[t]hats why I was nodding off yesterday." Prior to that statement, the trial court mentioned to the parties that it had observed the juror "nodding off." The juror supported his claims with medical documents reflecting the validity of his medical condition. The trial court inquired of the juror and credited the jurors statements. This record adequately supports the trial courts finding of good cause for removal. (Cf. Mitchell, supra, 155 Cal.App.3d at p. 629 [no abuse of discretion where trial court dismissed juror who, after exposure to derogatory comments by prospective juror, expressed an "inability to concentrate"].)
Green argues to the contrary, asserting that Juror No. 11 had been on the jury for two days, "was not ill" and did not "have a physical condition that he did not also have during the first two days of jury selection." Further, Green states that the jurors need to "stand and stretch occasionally could have been easily accommodated."
These contentions ignore the colloquy between the juror and the trial court. The court specifically asked why the juror had initially stated he would be able to sit through the trial. The juror explained that he thought the trial would last only one day, and that the pain had increased with time, leading to the need for Vicodin, which had caused him to be drowsy. The trial court credited these statements, noting that many jurors mistakenly believe that jury service will last just one day. Greens contrary contention that the juror "more likely . . . simply did not want to spend another day or two in court" is pure speculation.
In sum, given the jurors statements that he was in pain from recent back surgery and drowsy from taking Vicodin necessitated by the pain, the trial court could reasonably conclude that the juror was unable to give due attention to the trial proceedings. This constituted "good cause" to dismiss the juror under Penal Code section 1089 and thus there was no error.
Green also contends that the trial courts dismissal of the juror violated his constitutional rights because the juror "favored the defense." While the United States Supreme Court has held that the federal Constitution does not prohibit a nonunanimous jury in state criminal trials, it certainly would be a violation of the right to a unanimous jury recognized under California law to dismiss a juror because she favored the defense. (People v. Cleveland (2001) 25 Cal.4th 466, 483 ["a court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecutions evidence"]; Bellin, An Inestimable Safeguard Gives Way to Practicality: Eliminating the Juror Who "Refuses to Deliberate" Under Federal Rule of Criminal Procedure 23(b)(3) (2006) 36 U. Mem. L.Rev. 631, 633-636 & fn. 18 [describing constitutional boundaries of dismissal of jurors].) As we have explained, however, the record does not include any indication that the juror was dismissed for pro-defense leanings, but instead shows the juror was dismissed (upon his request) due to a painful back condition. This type of "good cause" dismissal is widely recognized in both federal and state courts, and does not violate the right to a fair trial or unanimous jury. (See Bellin, supra, at pp. 636-639.)
V
The Trial Court Erred in Declining to Hear Snowdens Testimony During the New Trial Motion
Green contends that the trial court abused its discretion and violated his constitutional rights when it denied his motion for a new trial. As discussed below, without expressing any opinion about the merits of the new trial motion, we agree that the case must be remanded for a new hearing on the motion.
A. Procedural History
After the trial, Greens counsel brought a motion for a new trial, noting that Snowden had been taken into custody and was now available to provide testimony. At the hearing, the trial court recognized Snowdens absence had loomed over the earlier proceedings and trial had been continued "six times I think, so you could locate him."
Greens counsel, Gary Roberts, explained that he believed Snowdens testimony would exonerate Green based on his discussions with his client, as well as Snowdens plea colloquy and the statements in Snowdens probation report. Roberts said he had been unable to speak directly with Snowden, however, because Snowdens counsel, Shervin Samimi, refused to allow any communications until Samimi could first speak to Snowden. (Cf. Rules Prof. Conduct, rule 2-100(A) ["While representing a client, a member [of the California Bar] shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer."].) Roberts stated that his "request continue[d] to be to call [Snowden] as a witness this morning" and noted that Samimi was present and willing to cooperate with the court.
The bailiff confirmed that Snowden was "in the holding tank," and the court later noted, "Mr. Snowden apparently could be produced in a matter of a few minutes to testify if the courts persuaded that thats appropriate." The court added, addressing defense counsel, "I think you could ask him what you want to ask him . . . in probably a handful of questions" and thus "the testimony wouldnt take very long." The prosecutor, while objecting to the granting of a new trial, noted that "if the court wants to entertain [Snowdens testimony], then I suppose I could cross-examine him as best I can."
Nevertheless, the trial court, after noting that, as a general matter, "motions for new trial[s] [are] looked upon with disfavor," denied the motion without permitting Snowden to testify. In reaching this conclusion, the court informed Roberts, "I am not inclined to even let you call Snowden. I think it would be a waste of everybodys time." The court explained that Snowdens testimony (regardless of its content) would "be subject to impeachment . . . on several grounds" and would not have swayed the jury given the competing testimony of the prosecution witnesses. The court summarized, "Im willing to assume" that Snowden is "going to come in and completely exculpate your client," but he "is going to be viewed as an incredible witness, not worthy of the jurys belief."
Shortly after Greens sentencing, Snowden wrote a letter to Roberts that is included in the appellate record. The letter reads, "I never laid eyes on Mr. Green until we where [sic] in court together at which time I told my attorney I didnt know him and he was not with me." The letter expresses Snowdens surprise that Green was prosecuted for the offense committed by Snowden and Finley; Green "had nothing to do with it." In an accompanying declaration, Roberts states that the letter was not solicited, but arrived "`out of the blue."
B. Analysis
The legal standard for a new trial motion is well established. "`To entitle a party to a new trial on the ground of newly discovered evidence, it must appear, — "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits."" (People v. Martinez (1984) 36 Cal.3d 816, 821 (Martinez), quoting People v. Sutton (1887) 73 Cal. 243, 247-248.) Motions for a new trial "`"are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion . . . ."" (Martinez, at p. 821.)
In setting forth the legal standard noted above, the Attorney General echoes the trial courts statement that a motion for a new trial is viewed with "disfavor." Our Supreme Court, however, has disapproved of this sentiment. Citing a leading treatise, our high court has explained, "`[t]his disparagement" of the new trial motion "`is questionable; fair consideration of competent new evidence tending to negative guilt is essential to any enlightened system of criminal justice." (Martinez, supra, 36 Cal.3d at p. 822, fn. 2, citing Witkin.) The "`disfavor notion seems merely to be an unfortunate way of describing the necessary broad discretion in the trial judge to deny the motion where no sufficient showing is made of competency, materiality and diligence." (Ibid.)
With respect to the merits of the trial courts ruling, the Attorney General emphasizes that the ruling was correct with respect to the third ground specified above — that Snowdens testimony would not "`"render a different result probable on retrial."" (Martinez, supra, 36 Cal.3d at p. 821.) The Attorney General emphasizes in this respect that "[t]he court specifically found any testimony by Snowden unreliable and lacking credibility."
The Attorney General also states that it is "not conceding on appeal" that the evidence was newly discovered. The Attorney General does not support its refusal to concede this point with any authority and, in fact, the authority is to the contrary. (See People v. Hayes (1985) 172 Cal.App.3d 517, 524 (Hayes) [holding that where defense is aware of favorable witness but unable, with due diligence, to locate witness at trial, the "testimony was `newly discovered "for purposes of new trial motion]; People v. Shoals (1992) 8 Cal.App.4th 475, 487 (Shoals) [reaching same conclusion with respect to witness who asserted Fifth Amendment privilege at trial].) The trial court in the instant case found that the defense counsel was "very diligent in [his] efforts" to locate Snowden and that the court was "not faulting [counsel] at all," thus satisfying the threshold for the evidence to be deemed newly discovered. (Shoals, at p. 487 [explaining that our Supreme Court has "`rejected . . . a mechanistic interpretation" to the newly discovered prong "`in favor of a more realistic approach which ties the concept of "newly discovered" evidence to the reasonableness of the defense conduct in failing to present the evidence at the first trial"].)
While we recognize that a trial court is permitted to weigh the reliability of evidence submitted in support of a new trial motion, we have difficulty applying this principle here where the court ruled that the evidence lacked credibility without allowing the evidence to be presented. (See People v. Delgado (1993) 5 Cal.4th 312, 329 (Delgado) ["` the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable"].)
The Attorney General relies primarily on Delgado and related authority that discuss the scenario where a defendant seeks a new trial based on a posttrial declaration of a witness attesting that their trial testimony was incorrect or incomplete. (Delgado, supra, 5 Cal.4th at pp. 324-325.) In the instant case, Snowden never testified at Greens trial and no declaration was presented (due to defense counsels belief that he could not interview Snowden absent counsels permission). Thus, the cited authority is inapposite. Further, the error we have identified here is not that the trial court determined that Snowdens testimony was not credible, but rather that the court did so without any inquiry into the content of that testimony.
The facts are analogous to People v. Hairgrove (1971) 18 Cal.App.3d 606, 610 (Hairgrove). In Hairgrove, a defendant brought a new trial motion based on the declaration of a witness who claimed to be the perpetrator of a vehicle burglary for which the defendant was convicted. (Ibid.) "At the hearing on the motion for a new trial [the witness] was present in court and apparently willing to testify," but the trial court denied the motion without hearing from him. (Id. at p. 609.) While taking no position on the merits of the motion, our colleagues in the Second District reversed and remanded for the trial court to hear the witnesss testimony prior to ruling on the motion. (Id. at p. 610 ["we believe that in reaching its decision the trial [court] should have taken advantage of what purported to be critical new evidence"].) After the witness testified, the Second District noted, "the [trial] court would have . . . all available information before it in ruling on the motion for a new trial." (Id. at p. 611.)
In fact, we believe that the instant case presents even more compelling circumstances for a remand than Hairgrove. As the trial court itself noted, the court had granted repeated continuances under a "good cause" standard for the express purpose of providing the jury with an opportunity to hear Snowdens testimony. It was anomalous to then rule, once Snowden was finally brought before the court, that his testimony (whatever its content) could have no bearing on the jurys verdict. This is particularly true where the only explanation for why the testimony, consisting (in the trial courts words) of responses to "a handful of questions," would not be allowed was that it would be "a waste of everybodys time." (See Hairgrove, supra, 18 Cal.App.3d at p. 611 ["Since the primary function of a trial court is to determine the true facts of the event with which it is concerned, such a witness should be encouraged to testify."]; Shoals, supra, 8 Cal.App.4th at p. 485, fn. 4 [recognizing "the taking of testimony at motions for a new trial in criminal cases" as a procedure that serves to "inform the trial court of the content of the newly discovered evidence for purposes of deciding the motion for a new trial"]; Hayes, supra, 172 Cal.App.3d at p. 524, fn. 5 [noting Attorney Generals argument that a declaration of a witness in support of a new trial motion "was not the `best evidence of the facts it contained because `[a]lthough [the witness] was apparently brought to court, he never testified"].)
In addition, while we take no position on the ultimate merits of Greens new trial motion, we note the prosecutions case was not so overwhelming that no conceivable testimony by Snowden could support a jurors finding of reasonable doubt. Both Snowden (who was sentenced to probation) and Finley (who was not even prosecuted) were found, upon arrest, with evidence of the drug sale on their persons. Snowden had rock cocaine in his possession. Finley had the premarked funds and additional cash. Green had neither drugs nor money, supporting his own testimony that he was a local homeless person caught in the wrong place at the wrong time. Snowdens claim that Finley orchestrated the transaction and that Green had no involvement was perfectly consistent with both Greens testimony and, more importantly, the physical evidence.
The defense also had other grounds to attempt to establish reasonable doubt in the minds of the jurors, including that Snowden and Green, even according to the prosecutor, "are similar looking," and that while the undercover officer stated that Green had taken a small piece of cocaine during the transaction, it was Snowden, not Green, found to be in possession of cocaine.
This evidence suggesting a possibility for confusion in the prosecutions evidence made it at least conceivable that, had Snowden been able to present a plausible account of Greens innocence, some jurors might have been swayed. While Snowden was, of course, subject to impeachment, his previous statements regarding the offense (at the time of his arrest, during the plea colloquy, in the probation report, and in his postsentencing letter), consistently refrain from implicating Green, while freely implicating Finley. These facts could certainly have been used by the defense to buttress Snowdens testimony against impeachment.
The Attorney General also argues that the evidence "was simply cumulative to appellants testimony which the court and jury already heard. Appellant had already denied any involvement in the transaction, claiming he was simply in the wrong place at the wrong time." We fail to see the significance of this contention. A jury will often view a defendants own claim of innocence as suspect, particularly where, as here, it is not supported by corroborative testimony. The fact that Snowdens testimony would have corroborated Greens own testimony suggests that the "newly discovered" evidence was more significant, not less so.
We recognize that Snowden professed to having limited memory of the events, but this too could be explained as an effort to avoid angering the prosecutor who was engaged in a transparent effort to obtain Snowdens admission that Green participated in the drug sale. Snowden plausibly could claim that he believed it wiser in such circumstances to claim a limited recollection than to call the prosecutor a liar.
Further, while the Attorney General emphasizes that Snowdens prior statements did not completely exonerate Green, the Attorney General ignores that the statements flatly contradicted the prosecutions sole witness to the transaction. The undercover officer stated that Green asked the officer for money, received the money and instructed Snowden (twice) to give the officer drugs. Snowden, however, unequivocally and repeatedly stated in the plea colloquy that Finley (not Green) instructed him to give the drugs to the officer. These statements supported a defense that the officer confused the participants in the transaction and, in any event, clearly contradicted the prosecutions primary witness. As our Supreme Court has repeatedly noted, "[n]umerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant." (Martinez, supra, 36 Cal.3d at p. 823; Delgado, supra, 5 Cal.4th at p. 329 ["`a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant"].)
In sum, we do not quarrel with the proposition that Snowdens testimony may prove to be so incredible or without substance that the trial court could reasonably conclude that a different result in light of that testimony would not be probable upon retrial. We cannot agree however, that given the facts of this case, the trial court could reach that conclusion without even hearing from Snowden. Thus, we conclude that the trial court abused its discretion by denying the motion for a new trial without allowing the defense to present the primary evidence in support of that motion. (See Hairgrove, supra, 18 Cal.App.3d at pp. 610-611.) Consequently, we remand the case for the trial court to rehear Greens new trial motion and to allow Green, if able, to present Snowdens testimony (and any other admissible evidence) in support of its motion at that hearing. The trial court should then decide, having "all available information before it," whether the new trial motion has merit. (Id. at p. 611.) If it concludes that the motion has merit, it should order a new trial. If it decides that the motion does not have merit, it should reinstate the judgment.
DISPOSITION
Affirmed in part, reversed in part and remanded with instructions.
WE CONCUR:
BENKE, Acting P. J.
MCINTYRE, J.