Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC064182A
Pollak, J.
Defendant Vanessa Deborah Marchi appeals from an order denying her motion for a new trial after she was convicted of possession of methamphetamine. We agree that the trial court mistakenly applied a subjective standard in considering the motion, but nevertheless hold that the error was harmless since under an objective standard it is not likely that a different result would be obtained in a trial with the additional evidence. Therefore we shall affirm.
Background
Officer Stephen Sealy of the Foster City Police Department testified that on April 11, 2007 at approximately 9:30 a.m. he stopped because of an expired registration on a car in which defendant was the passenger. Although not stated explicitly in the testimony, it appears that the car was being driven by one Jacob Silverman. Sealy asked defendant if she had any property in the car and she told him that a Safeway bag and a makeup purse inside the bag on the floor of the car in front of the passenger seat belonged to her. Sealy asked for permission to search the grocery bag and defendant told him to “go ahead.” When Sealy looked inside the makeup purse he found “a small clear baggie with [a] crystal substance inside,” as well as a bank debit card. Sealy showed defendant the makeup purse and she confirmed that it was hers. There was a useable amount of the crystalline substance in a plastic bag. Sealy took the substance to the police station where he performed a presumptive test and determined that the substance was methamphetamine. He packaged the remainder and submitted it to the forensic laboratory for further testing.
The Attorney General asserts, as did the prosecutor in opposing the new trial motion, that the debit card was in defendant’s name, but the record does not contain evidence of the name on the card.
Ellen Clark, a criminalist for the forensic laboratory, testified that the substance submitted by Officer Sealy contained.02 grams of methamphetamine.
The prosecution stipulated that if defendant were to call Dave Paolinelli, he would testify that on April 12, 2007, he contacted defendant regarding a purse that he found at a Safeway store, which contained her checkbook. He used the checkbook to contact defendant, who picked up the purse along with Paolinelli’s business card that had a handwritten notation that defendant obtained the purse from him on April 12.
Defendant was charged by information with one count of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a).) She waived her right to a jury trial and the trial court found her guilty. Defendant then made a motion for a new trial, discussed in detail below, that the trial court denied. The court suspended imposition of sentence and placed defendant on supervised probation for three years under the provisions of Proposition 36. Defendant timely appealed.
Discussion
Penal Code section 1181 provides in relevant part: “When a verdict has been rendered... against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial....” Furthermore, “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘ “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. Delgado (1993) 5 Cal.4th 312, 328.) “ ‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’ ” (People v. Williams (1988) 45 Cal.3d 1268, 1318.)
In support of her motion for a new trial, defendant offered the testimony of Danny Martinez, Silverman’s step brother. Martinez testified that on April 10, 2007, he went to dinner with his girlfriend in a car he borrowed from Silverman. He observed his girlfriend using a drug which he described as “something crystally.” Martinez saw her take this substance from a small makeup purse. After she snorted what was in the bag, he believed the bag was empty, and he did not see her put it back in the makeup bag. Martinez testified that he smoked “about an eighth” of an ounce of marijuana that night. On April 11 he returned the car to Silverman. That evening, Martinez’s girlfriend called him to say that she had left her makeup bag in the car. In April 2008, Silverman visited Martinez in jail and informed him of defendant’s arrest and conviction for possession of methamphetamine. Martinez’s declaration submitted in support of the motion for a new trial states that this conversation took place in December 2007. Martinez stated that the bag left in the car by his girlfriend also contained “some eyebrow pencils and some other stuff that they curl their eyebrows with.” He never saw the bag that was offered as evidence at defendant’s trial. He testified that it would not change his opinion that the makeup bag belonged to his girlfriend even if defendant’s property was in it or if defendant told police that the bag belonged to her.
In opposition to the motion for new trial, the prosecution conceded “that if the above proffered testimony was offered and accepted at face-value, that the evidence would be material and would render a different outcome.” The prosecutor argued, however, that Martinez lacked credibility based on his rap sheet which revealed 13 aliases, three different dates of birth, and six social security numbers, as well as three misdemeanor and two felony convictions. Additionally, the prosecution pointed out that Martinez stated in his declaration that he learned of defendant’s conviction when Silverman visited him while Martinez was in custody in the San Mateo County jail, but that jail records revealed that Martinez was not in custody during December 2007, and that Silverman did not visit the jail during that time.
The trial court denied the motion, reasoning that, “I would have had to have found that the officer was completely wrong. Then I would have had to have believed Mr. Martinez; that his good friend and... brother-in-law...; that there is a bag containing contraband in the car that he borrowed; and that it was left there. Mr. Martinez was not sure whether she finished whatever she was snorting and put it back, or if she finished it; she would have disposed of the container, the bindle. Which if defense’s position is to be believed didn’t happen. And then, he lets... Mr. Silverman drive around in the car with known contraband, which I find, I’m very, very skeptical that even in his state, recovering from smoking an eighth of marijuana the night before, that would not have dawned on him when he returned the car.... Then there’s the confusion about the date [of] the conference. But I think that that is reasonable that could be explained. Then we have the testimony, how the makeup bag got into the shopping bag; and how the credit card got into either the makeup bag or the shopping bag. But there was a credit card found there. And the testimony of [defendant] acknowledged that that belonged to her.”
Defendant argues that the trial court applied the wrong standard in assessing whether the new evidence would likely result in a different outcome at a new trial. When discussing the new trial motion, the trial court asked, “Would I, then, be judging the credibility of [Martinez] now, or would I have to have an overlay and try to figure out whether or not the jury would believe him?” Defense counsel answered, “I believe we have to look ahead what would happen in a new trial; would a result be different?” The prosecutor argued that “because this is a court trial, the question [is] would it have made a difference to your honor, since this is a trial that was presented to your honor [h] ad you known about this evidence back at the time this case was tried The court then stated, “I think that’s the way I have to look at it... [h]ad this evidence been before the trier or fact, which in that case is me.” Defense counsel interjected that “had we had Mr. Martinez’s evidence at an earlier hour,... our strategy would have changed for purposes of trial... even with regard to going... through the court or jury trial....”
Defendant is correct that the trial court mistakenly articulated the standard. “[T]he test is not a subjective one whether a particular trier of fact would be persuaded by the new evidence to reach a different conclusion, but rather is an objective one based on all the evidence, old and new, whether any second trier of fact, court or jury, would probably reach a different result. We therefore consider the evidence on the basis of objective probabilities.” (People v. Huskins (1966) 245 Cal.App.2d 859, 862.)
Although the trial court applied an incorrect standard, it is not necessary to remand the matter for the court to reconsider the motion under the correct standard. It is clear from the record that under an objective standard the additional evidence was not likely to produce a different outcome, and that the trial judge would reach the same conclusion under an objective standard. Regardless of Martinez’s proposed testimony, Sealy’s testimony was uncontradicted that while looking directly at the Safeway bag and the makeup purse defendant acknowledged that they were hers. Defendant did not submit a declaration in support of the new trial motion asserting that the bag or the purse did not belong to her. Nor was the motion supported by a declaration from Martinez’s girlfriend stating that the makeup purse belonged to her. Although the testimony at trial did not, as the parties now assert, establish that defendant’s name was on the bank card in the makeup bag containing the methamphetamine, defendant never asserted—at trial or in support of the new trial motion—that her name was not on the bank card inside the purse. Moreover, “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.” (People v. Beyea (1974) 38 Cal.App.3d 176, 202.) To say that Martinez lacked credibility as a witness is an understatement. He has an extensive criminal history, including use of 13 aliases, three birth dates and six different social security numbers. Martinez insisted that the makeup purse containing the methamphetamine belonged to his girlfriend even though he never saw the purse, and he asserted that his opinion would not change even if he learned that defendant said the purse was hers or that it contained property belonging to her. He admitted to having smoked a substantial amount of marijuana the night he asserts he witnessed his girlfriend snorting methamphetamine. Moreover, his declaration and his testimony were inconsistent as to when he spoke with Silverman.
There is also a question as to whether defendant was diligent in seeking Martinez’s testimony since his declaration in support of the motion states that he spoke with him in December when defendant’s trial was taking place. The trial court appears not to have attached any significance to the discrepancy between the date in his declaration and his testimony at the hearing that he did not speak with Silverman until April. When defense counsel stated that, “We did not come into possession of this evidence until April,” the trial court said, “You needn’t argue,” and counsel went on to argue about Martinez’s credibility.
The significance of the new evidence in this case is entirely different from the weight of the new evidence in Huskins, on which defendant relies. In Huskins the defendant discovered after trial that the prosecution’s main witness, the mother of the girl whom defendant allegedly molested, was paranoid schizophrenic and had made similar unsubstantiated allegations in the past. As the court observed, “the new evidence in this case does more than merely impeach the main prosecution witness—it tends to destroy her testimony by raising grave doubts about her veracity and credibility.” (People v. Huskins, supra, 245 Cal.App.2d at pp. 862-863.) Martinez’s proffered testimony would do nothing to damage the credibility of Sealy, the chief prosecution witness, or his testimony that defendant acknowledged that the makeup bag was hers. (See, e.g., People v. Clauson (1969) 275 Cal.App.2d 699, 706-707 [“If the proposed witness... were to testify that he saw and was with defendant during the period in question..., his testimony would be cumulative to that of defendant and would tend merely to impeach [the prosecution witness’s] testimony as to the fact and time of defendant's visit to her home. It would not directly affect the merits of the defense. Nor would it establish, for example, that the statements attributed to defendant on that date were not made.”].)
Thus, we are confident that the trial court would have come to the same conclusion about the outcome of a new trial even had it used the correct, objective standard. Under the record before us, it is not probable that a different outcome would result in a new trial at which Martinez was called to testify.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.