Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF101823 Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Rod Pacheco, District Attorney, and Jacqueline C. Jackson, Deputy District Attorney, for Plaintiff and Appellant.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Ernesto Perez, of three counts of home invasion robbery in concert (Pen. Code, §§ 211 & 213, subd. (a)(1)), and one count each of attempted home invasion robbery in concert (§§ 664, 211 & 213, subd. (a)(1)) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)). In connection with each of the offenses, the jury found true an allegation that the crime had been committed to benefit a criminal street gang (§ 186.22, subd. (b)(4)(c)) and the assault had resulted in the infliction of serious bodily injury (§ 12022.7, subd. (a)). Almost five years after the verdict, the trial court granted a new trial. The People here appeal that order. We agree with the People that the granting of the new trial was an abuse of discretion and we reverse the order.
All further statutory references are to the Penal Code unless otherwise indicated.
We note that 27 times during this average-sized trial, witnesses made references to certain portions of exhibits, but the record does not make clear to what they were referring. This makes our review of the record exceedingly difficult and is absolutely unnecessary. If both the trial court and trial counsel would keep in mind that most criminal cases are appealed, and then it becomes our task to determine what the jury heard and saw in the courtroom, this problem would be eliminated.
On January 5, 2002, defendant and other members of the Coroneros gang entered a motel room occupied by two people (hereinafter, the third and fourth victims) and demanded money and drugs, took a cell phone, then went through the pockets of the third victim but found nothing. They then entered a room occupied by another couple (hereinafter the first and second victim) beat the first victim and hit him with a beer bottle and took a number of items. More facts will be disclosed as part of our discussion of the issue raised.
The ordering of the victims is not chronological, but is based on the charges, i.e., the first victim is the victim of Count 1 (and 5), the second, of Count 2, and so on.
Issue and Discussion
On May 7, 2002, defendant, along with Dominic Garcia, Ruben Garcia, Anthony Murillo and Enrique Duran was charged by amended information with four counts of home invasion robbery in concert and two counts of assault by means of force likely to produce great bodily injury. All crimes were alleged to have been committed to benefit a criminal street gang and in connection with the third and fourth charged robberies, it was alleged that the defendants were principals and a principal used a firearm, and in connection with the first aggravated assault that serious bodily injury had been inflicted. Defendant’s oral motion for severance from the trial of the other four was denied without prejudice in July 2003, but, despite the denial, he went to trial first by himself and was convicted, as noted above, on September 30, 2003. His sentencing was continued for almost five years. In the meantime, Dominic Garcia went to trial in 2004, was convicted and was sentenced to life in prison. On August 22, 2007, Ruben Garcia (hereinafter, Garcia), Murillo and Duran went to trial jointly on the second amended information, with the third home invasion robbery in concert having been changed to attempted robbery and with another count against Murillo being added. The following month, after a lengthy trial, during which Garcia testified in his own behalf, he and Duran were acquitted of all charges and Murillo was convicted of two misdemeanor theft lesser included offenses of the first and second robberies and a misdemeanor lesser included offense to the charge that was added as noted above. On November 1, 2007, the attorney who had represented Garcia at the Garcia/Murillo/Duran trial brought a motion for new trial on behalf of defendant, whom he then also represented. The trial court who had presided over defendant’s trial, but had not presided over the Garcia/Murillo/Duran trial, heard the motion. It considered in support of the motion a declaration signed by defendant under penalty of perjury and a 224 page transcript of Garcia’s testimony at the Garcia/Murillo/Duran trial.
During the hearing on defendant’s new trial motion, the trial court erroneously stated that all three defendants were acquitted in the Garcia/Murillo/Duran trial.
There is no support in the record before us for the assumption inherent in the parties’ citation to the entire transcript of the Garcia/Murillo/Duran trial that the court hearing defendant’s new trial motion read and considered that entire transcript. The People concede as much when they assert, “[H]ad the trial court been familiar with the records from the jury trials it would have know[n]” that defense counsel’s assertions that defendant’s trial and the “Garcia[/]Murillo[/]Duran trial were ‘identical’, that ‘the trial went exactly the same’, and that ‘witnesses were even called in the same order’... were false.” Therefore, the parties’ citations to and discussion in their briefs of the Garcia/Murillo/Duran trial, with the exception of the testimony of Garcia, will be disregarded. It is appropriate for us to determine the propriety of the trial court’s ruling based only on those matters that were before the court at the time it ruled. (People v.Leonard (2007) 40 Cal.4th 1370, 1393.)
The trial court granted the new trial motion, finding that Garcia’s testimony at the Garcia/Murillo/Duran trial was newly discovered, in that it was unavailable to defendant at the time of his trial because Garcia had invoked the Fifth Amendment, it was material and relevant to defendant’s defense and it was not cumulative of testimony that had been offered during defendant’s trial. The court also concluded, “I think that a different result is in the realm of possibility. [¶] I think that if the jury believed... Garcia, certainly there would be a different result on some of the counts anyway. [¶] [Defendant] is facing a life sentence in this case, so there is a lot at stake here. And I think that it is reasonable to project that a different result would be probable on a retrial of this cause at least on some of the counts. [¶] It does appear that there may be an issue with regard to the altercation, the physical altercation that the defendant had with [the first victim], who came to her defense, who [defendant] got into a fight with and then later hit him with a beer bottle. [¶] But the standard is whether or not I think that there is a different result probable on retrial of this case. Yes, I do think there is a different result probable on a retrial.”
“The granting or denial of a... new trial on newly discovered evidence is a matter for the sound discretion of the trial court. [Citations.] Such a motion is generally looked upon with disfavor.... In determining whether there has been a proper exercise of discretion, each case must be judged on its own factual background.... In its consideration of the... factors [to be considered in ruling on the motion], the trial court may weigh the credibility of the new evidence in determining whether its introduction would render a different result on retrial reasonably probable.” (People v. Cole (1979) 94 Cal.App.3d 854, 859, 860 (Cole), overruled on other grounds in In re Kelly (1983) 33 Cal.3d. 267, 277.) “‘The moving party must make a clear case, showing... the truth... of such evidence. Newly discovered evidence after defeat is looked upon with suspicion....’” (People v. Singh (1909) 11 Cal.App. 427, 429.)
Penal Code section 1181 provides, in pertinent 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... [¶] When new evidence is discovered material to the defendant, and which he could not with reasonable diligence, have discovered and produced at the trial.”
In Cole, the appellate court upheld the trial court’s denial of a new trial motion where the trial court concluded that the credibility of the witness who was supplying the newly discovered evidence was “zero.” (Id. at p. 860.) In People v. Wade (1971) 15 Cal.App.3d 16, 26, the appellate court noted that the witness who offered the asserted new evidence did not remember the date on which the facts he claimed occurred and despite his assertion that two other people he had encountered had committed the bloody crimes, neither individual had blood on them. The appellate court further noted that the witness was a friend of the defendant’s and had been his cellmate prior to trial, and that he had been convicted of three prior felonies and was awaiting trial for a fourth. (Ibid.; Id. at p. 27.) In People v. Peyton (1941) 47 Cal.App.2d 214, 223, the appellate court noted, “the truthfulness of [defendant’s] alleged new evidence is open to grave suspicion.... It is a belated and suspicious confession coming from an incarcerated convict who admitted that he had nothing to lose thereby. [He] was a close friend of [defendant], having previously served a sentence with him in state prison, and he was imprisoned in the same cell... with... [defendant] just prior to the motion for new trial. The belated confession under such circumstances is evidence that it was not prompted by conscientious scruples to tell the truth and to save an innocent man from unjust punishment.... The [trial] court was warranted in disbelieving the affidavit of [the witness] under the circumstances of this case, and in denying the motion for new trial.” (Id. at pp. 223, 224.)
The trial court’s remarks in granting the motion indicate that it failed to assess the credibility of Garcia’s testimony in the Garcia/Murillo/Duran trial, particularly in light of the evidence offered at defendant’s trial. We believe such an assessment is essential to the determination whether a different result on retrial is probable and that such an assessment, given the facts of this case, demonstrates that the trial court abused its discretion in granting the motion.
Appellate counsel for defendant asserted at oral argument that the trial court is in the best position to judge the validity and value of the evidence and it is its duty to make credibility determinations. We wholeheartedly agree. The problem is that the trial court here did not judge the validity and value of the evidence nor did it make credibility determinations.
We begin with a very important item of evidence introduced at defendant’s trial, i.e., his statement to police a month after the crimes that he did not commit the crimes, he was not there and he was probably at home watching television or sleeping. Upon retrial, there will be no getting away from this statement, and it completely contradicts Garcia’s testimony that defendant, Murillo and Duran accompanied him to the motel the night of the crimes and all three followed him into the room occupied by the first and second victims.
Garcia’s account of the alleged aggravated assaults of the first and second victims, as alluded to by the trial court in its ruling, is also problematic. He testified variously as follows: first, that after defendant and Murillo angered the second victim by making fun of the fact that she was under the influence of methamphetamine, she got up, yelled at them and ran towards Murillo, who hit her with an open hand, then she struck him, then she got slapped, then the first victim leaped towards defendant to protect the second victim and the two exchanged blows; second, that the second victim charged at Murillo after Murillo slapped her; third, that the second victim ran at Murillo with both arms swinging wildly, and as a result of her getting close to Murillo while doing this, Murillo slapped her once. The Garcia/Murillo/Duran jury acquitted Garcia of assaulting the second victim, but the inconsistencies in his testimony point to the problem with the trial court relying upon it in granting the new trial motion.
Garcia consistently testified that the first victim lunged at defendant in response to the second victim getting slapped. He testified that the first victim’s hands were balled up into fists as he came at defendant and they went into a striking motion as he got closer to him. He said that “they came together like two bears[,]” they struggled and tried to exchange blows and ended up wrestling one another, but defendant was getting the better of the first victim, so Garcia intervened and put defendant in a headlock and pulled him back off the first victim in order to break up the fight. Garcia and Duran exchanged words and Garcia told Duran to get out, then he let go of defendant, who then hit the first victim in the head with a beer bottle. Garcia testified that only defendant hit the first victim. Even accepting Garcia’s testimony as gospel creates no basis for a new trial for the aggravated assault on the first victim.
Next, to accept Garcia’s testimony as credible, one would have to find every one of the eyewitnesses to the crimes who testified at defendant’s trial incredible regarding important matters which they addressed. While we agree with defendant that the testimony of all these witnesses was fraught with problems, when one adds them together, noting the similarities among them, and puts them against Garcia’s self-serving testimony, the latter does not even come close to balancing out the former. We examine the testimony of each and compare it to Garcia’s.
The fourth victim, who did not want to be involved in the trial, testified at defendant’s trial that Garcia was in his room that night, that Garcia had people with him, but he could not remember if these people came into his room with Garcia and he had never before seen defendant. He testified that Garcia spoke to the third victim and left. He denied seeing a weapon while Garcia was there. After Garcia left the room, the fourth victim discovered that a cell phone which had been left in his room by a male friend was missing. The fourth victim was very nervous and afraid when the police interviewed him afterwards and he claimed that he saw nothing and wanted nothing done. However, then he told the police that male Hispanics had entered his room, said it was payday and he was then missing a cell phone.
Appellate counsel for defendant stated at oral argument that we cite none of the testimony of the witnesses at Perez’s trial—just the testimony of police officers. This is obviously inaccurate.
He testified that he did not walk out of the room after Garcia left so how he could have known that Garcia had others with him that night was not explained.
The third victim, who had smoked methamphetamine that day, testified that the fourth victim answered a knock on the door of their room and three to five people barged in, bullying and intimidating them. The intruders wanted to know if the third and fourth victims, and two other men who were in the room getting their hair cut, had money or drugs and the former told the latter to empty their pockets. She told Garcia she had neither. One of the intruders showed her a knife. Garcia went through the third victim’s pockets but found nothing, got angry and told the third victim to wipe the smile off her face, which frightened her. The television remote control was thrown against a wall and one of the intruders took one or two cell phones off the night stands. Garcia told her and the fourth victim to stay away from the door and phone as the intruders left. She told police that five male Hispanics had entered the room; one said it was their payday and they directed the occupants to give them all the drugs and money. Garcia went through her pockets with both hands and found nothing. One of the intruders, possibly Garcia, removed a knife from its sheath. Another displayed a handgun which was in his back pants waistband. One of the intruders asked Garcia if they needed the gun. Garcia said something to the effect of, “Hold off.” One of the intruders picked up the television remote control and threw it against the wall, breaking it, then threw a small table. As they left, they told the third and fourth victim to stay away from the door and the phone. Garcia appeared to be in charge of the operation. She picked out the picture of Garcia as the person who had said it was payday. She also picked out pictures of Dominic Garcia, Duran and three others later determined by law enforcement to have not been involved.
See footnote 8, ante.
Defendant’s jury did not make true findings in connection with the home invasion robbery of the fourth victim and the attempted home invasion robbery of the third victim that defendant was a principal and a principal had used a firearm.
Garcia testified at his trial that the fourth victim was one of his drug dealers and was doing a lot of drugs at the time of the crimes, which caused him to be very aggressive. Garcia did not get along with the third victim and believed her to be a snitch. After arriving at the motel with defendant, Duran and Murillo, he went to the room of the third and fourth victims to buy some drugs from the latter while leaving the others outside the room. Garcia greeted the fourth victim and another man in the room cordially and told the fourth victim that the third victim was a rat. Garcia and the third victim yelled at each other and the fourth victim told Garcia to leave and come back later and to go see the first victim. Garcia left. He saw no one throw a table, he did not pick up and break anything and he did not put his hands in the third victim’s pockets or ask her to pay him money. He did not go to the room with the intent to steal—he went to buy drugs and get high. He did not go there to prove anything to his gang. He asserted that the fourth victim lied about what occurred in the room because he had drugs for sale and the third victim lied because she was high.
He testified he was a drug addict in January 2002 and smoked methamphetamine almost every day. He also testified that he drank beer the night of the crimes.
He testified that Dominic Garcia was not with them that night.
At defendant’s trial, the first victim testified that he was staying with his girlfriend, the second victim, two rooms down from where the fourth victim was staying. He, the second victim and their friend, Jennie, had been smoking methamphetamine. He heard screaming outside his room, then a knock on the door, which Jennie answered. Garcia and four other men, one possibly the defendant, aggressively entered and Garcia told the first victim that he needed to pay rent. They surrounded the first victim and took his cell phone, flashlight and other items. The one who took the flashlight was the most aggressive of the five and he said he had a gun and wanted to kill someone that night. He hit the first victim in the head with the flashlight. The second victim started to scream, telling the men not to hit the first victim from behind. The tallest intruder began hitting the second victim in the head with a flashlight and told her to shut up. She was also punched. Garcia, who was in charge, told the others to stop hitting the first victim, saying he was “cool.” Garcia asked the first victim for money, the latter said he had none, Garcia got mad and told the others to take care of what they had to take care of. One of the intruders hit the first victim with what felt like a gun, which the first victim thought he took from his waistband. The others jumped on top of the first victim, who was on the bed. He was hit on the back of the head with a beer bottle. After the three on top of the first victim had beaten him, Garcia said, “That’s it. Let’s go.” The first victim was then hit again with another beer bottle. The first victim denied dealing drugs out of the room and said he had never spoken to Garcia before, although he had seen him around the motel. The first victim testified that defendant may have been one of the intruders. The first victim picked out a picture of Dominic Garcia as looking like the intruder who had asked Garcia for permission to hit him. He picked out defendant’s picture as resembling another intruder and Garcia as the one who was doing most of the talking. He also picked out the pictures of Duran and Murillo as intruders. He told police there were only four intruders. He told police he was scared and had been told not to testify. At the hospital after the crimes, he picked out the pictures of Garcia, defendant, Dominic Garcia and tentatively another person who was not identified by any of the other witnesses and who disappeared and could not be questioned. He told police he had not seen a gun and did not mention a knife. He reported to police that a MagLite flashlight, cell phone and silver necklace had been taken. He did not appear to the officer who spoke to him after the crimes to be under the influence of a controlled substance.
Defendant correctly points out that the first victim initially lied while testifying when he tried to omit Jennie’s involvement in order to protect her.
See footnote 8, ante, page 9.
The second victim testified that she, the first victim and Jennie smoked one half of a baggie of methamphetamine before the five intruders came into their room. She said that the incident began when, with the first victim’s permission, Jennie opened their motel room door to see about the noise that was going on outside. Jennie went outside and re-entered five minutes later with Garcia and four others, who all seemed mad. Garcia told the first victim that the latter had to pay rent. Defendant picked up a dart and said to both victims, “‘Somebody is going to die tonight.’” One of the intruders tried to attack the first victim from behind and she protested, so he hit her in the head two times with a flashlight he had just picked up two times and hit her face with his fist and told her to shut up. All the intruders except Garcia hit the first victim, but Garcia told the others what to do. One had a gun and hit the first victim with it. They took the first victim’s cell phone, a blue MagLite, a silver chain, a methamphetamine pipe and the rest of the baggie of methamphetamine. They ran to a white car, with the second victim and Jennie following. They told Jennie to watch the second victim to make sure she didn’t call the police. The second victim picked out defendant’s picture as one of the intruders while high on methamphetamine, although she testified variously that she did not recognize him in the courtroom and she was pretty sure he was one of the intruders. She also picked out Garcia’s photo. She had been told not to testify. Although she said there were five intruders, and at various times picked out pictures of Dominic Garcia, defendant, Duran, Murillo and Garcia, she gave the police descriptions of only four people, she picked out pictures of others who were determined not to have been involved and she at times was unable to identify anyone until looking at the pictures at length. She did not tell the police that the intruders had taken the methamphetamine and the pipe. She first told the police that there were only four intruders, then days later, corrected this to five. On one occasion, when she picked out defendant’s picture, she said nothing about him having a dart, although another time she said he had picked up the dart and said that someone was going to die that night. During two of the photo identifications, she was under the influence of methamphetamine or sick from coming down off it. She told the police that the person who had said that someone was going to die was the one who punched her in her left cheek, in the head four to five times with his fist and once in the left side of her head with the flashlight. She also told the police that when she and Jennie ran to the car, someone inside the car told Jennie to watch her. She told police that she feared Garcia would kill her because he was in a gang that claimed the motel as part of their turf. She told police that Garcia and defendant had kicked the first victim in the legs and body.
See footnote 8, ante, page 9.
She testified she was absolutely certain this man was defendant.
Jennie testified that she was under the influence of methamphetamine during the crimes she witnessed, but that did not affect her ability to identify the perpetrators. She, too, was afraid to testify, although she had not been threatened during the crimes. She was fearful of Garcia and the others. She had told the police that she would not testify and she would not identify the perpetrators of the crimes she witnessed. She said that she was in the room of the first and second victim when she heard a noise outside, went outside and ran into Garcia, an old friend, who was coming out of the room next door. She and Garcia hugged and when she returned to the room, he and the men he was with followed her inside. Garcia asked the first victim if he had anything. When Garcia was told no, the men got upset and were angry. The second victim got crazy with the men and they told her to shut up. There was an argument, during which one of the men hit the second victim. All the men hit or kicked the first victim. As he was being hit, the first victim was told not to say anything and just go along with them and shut up. Jennie asked Garcia if she could leave, he gave her permission and she did. As she left, the first victim was hit in the head with a beer bottle that either defendant or one of the other men had pulled out of his pants. Once Jennie was outside the room, the second victim caught up with her and they saw a white car with what appeared to be Garcia and three of the other intruders inside. Someone in the car told Jennie, “‘Don’t call the cops, we don’t want to hurt you[.]’” She was also told to “handle” the second victim. She later identified defendant as one of the men with Garcia, but she said she did not see him do anything, although she had previously said he pulled the second victim’s hair and punched her in the face, but on the stand she could not remember it being defendant that did that. She could not recall Garcia saying anything about rent or being tired of people making money while he was not, nor of another of the men saying that someone was going to die. However, Garcia did tell another of those with him, “‘Go ahead and do what you have to do.’” She was sure that defendant was one of the intruders. She claimed the police threatened to violate her parole if she did not cooperate. She had picked out Murillo’s picture as one of the intruders. A defense investigator who interviewed Jennie testified that the latter admitted she had lied to the police because they had threatened her, and she was not fearful of Garcia and the men who were with him.
See footnote 8, ante, page 9.
She testified that she had lied to a defense investigator when she told him that she did not remember who hit the second victim in the face and that she was only repeating what the second victim had made up to tell the police. She explained that she was in jail at the time and she feared retaliation.
Garcia testified at his trial that the first victim was another one of his drug dealers. Following the directive of the fourth victim, Garcia left the latter’s room in search of the first victim, to purchase some drugs. As he traversed the 18 feet between the room occupied by the third and fourth victims and the room occupied by the first and second victims, he ran into Jennie outside the fourth victim’s room and asked her if she had anything (meaning, did she have any drugs) or where he and defendant, Murillo and Duran could party. Jennie invited them into the room of the first and second victim and Garcia introduced the men to the first victim. Murillo asked the first victim if he could use the bathroom and did so. Garcia and the first victim shook hands and Garcia asked the later if he had any drugs. The second victim was “tweaking,” meaning that she was under the influence of methamphetamine and was “wired” and paranoid. She became loud with defendant, who was teasing and laughing at her because of her state. Garcia told the second victim to relax. Murillo came out of the bathroom and joined defendant in teasing and laughing at the second victim and she began yelling at him. As already discussed, Garcia gave varying accounts of what happened next; either the second victim ran at Murillo, who then hit her with an open hand, she hit Murillo on the arms or shoulders, then she got slapped, or she ran at Murillo with her arms swinging, then got slapped, or she got slapped before she charged Murillo. This all occurred while Garcia was continuing to talk to the first victim about selling him drugs. In any event, as stated before, the first victim leaped at defendant in an effort to protect the second victim. Defendant and the first victim exchanged blows, defendant got on top of the first victim as the two wrestled and defendant seemed to be getting the better of the first victim. Garcia grabbed defendant and held him in a headlock in an effort to break up the fight, asking defendant what he was doing and telling him to leave the first victim alone—that the latter was “cool.” Garcia and defendant began arguing. Garcia did not see Murillo continue to hit the second victim and Duran just stood there and did not hit anyone. Garcia denied that Murillo hit the second victim in the head with a flashlight, punched her in the face or hit her in the back of the head. Then Garcia and Duran began having words and Garcia told Duran to leave the room. Garcia let go of defendant, who hit the first victim in the head with a bottle and the first victim went to the ground. After Garcia and his companions left the room, they got into defendant’s car, with Garcia driving. He did not recall anyone in the car saying not to let the second victim say anything, but it was possible someone did while he was arguing with defendant and he acknowledged Murillo’s testimony that he told Jennie to keep an eye on the second victim and he threatened a witness. Garcia denied saying he was there to tax anyone or they were to pay rent or that he told Murillo to take care of whatever he had to take care of. He also denied that defendant had said someone was going to die that night if the victims didn’t give something up or that anyone said they were there to tax someone, it was time to pay rent, that someone wanted to hurt someone else, or that, “Homies are tired of people making money in this city and we’re not getting anything[.]” He denied that there were any guns in the room and that anyone got hit with one. He denied seeing defendant with a dart. Garcia testified he did not intend to beat up the first victim when going to the room and did not intend to rob or steal from either victim. He did not go there to prove something for his gang. He saw no property taken from inside the room, including a methamphetamine pipe, no one walk out of the room with a MagLite flashlight and he saw no one in the car with a cell phone, although he allowed that one of the other men could have had one and he did not see it. In fact, he acknowledged that Murillo had testified at their joint trial that he took a cell phone from the room. He denied that he was in charge of defendant, Murillo and Duran at the motel. He had no idea how the second victim got a cut on her lip and a bump on her head—he maintained she only got slapped once, and by Murillo. He did not know how the first victim got cut behind his ear—he maintained that defendant hit the first victim only once.
Garcia testified that defendant, Murillo and Duran thought they were at the motel to party—they did not know Garcia was there to buy drugs.
Garcia testified that both the first and the fourth victims occupied various rooms at the motel and he did not know which room the first victim was in when he followed Jennie inside it.
Later in his testimony, Garcia stated that the first victim swung at defendant as he lunged at him, but Garcia did not see the first victim make contact with defendant. Still later, he testified that the first victim balled up his fists and put them in a striking motion as he lunged at defendant.
Garcia testified that he did not actually see this, but defendant had a beer bottle when he entered the room and Garcia heard the bottle break.
Garcia acknowledged that Jennie had testified to this statement at his trial.
However, he acknowledged seeing it there, which created another reason to disbelieve his testimony. If he was there to purchase methamphetamine, as he claimed, why did he not ask the first victim about the methamphetamine in the pipe and the baggie?
Next, Garcia’s testimony was inconsistent with the physical evidence, most notably the broken remote control from the first set of offenses and pictures of the injuries sustained by the first and second victims and the overturned table from the second. There was also the matter of the physical evidence showing the existence of the Coroneros gang which Garcia, himself, acknowledged founding and being the President of at the time of the crimes. His claim that, despite his position as President, the fact that he had received money from fellow gang members while in prison the year before these offenses, and the presence of Coroneros gang paraphernalia in his home and his “business card” as president of the gang and the phone numbers of other gang members, including Murillo’s and the vice president of the gang in his wallet around the time of his arrest, he was “not really” associating with it or was “not active” in 2002 is, to say the least, farfetched.
Although he claimed that members had drifted away in 1998 and 1999 due to marriage, moving from the area and incarceration, he admitted that there were still 15 gang members in 2002, when those crimes occurred.
He claimed not to be friends with Murillo, yet he admitted attending the funeral of Murillo’s father (whom he did not know at all) a few months before the crimes and a picture taken at the reception following the funeral shows him with other Coroneros members, including defendant, Murillo and Duran
Finally, Garcia’s testimony at his trial was entirely self-serving. He had just been released from prison six months prior to these offenses for attempted carjacking and presumably he had no desire to return. He stood charged with numerous serious offenses. Garcia was aware that defendant had been convicted almost “across the board” and it can be assumed that he also knew that Dominic Garcia met a similar fate, along with a life sentence.
Considering all the foregoing, there was no reasonable basis for the trial court to conclude that there was a reasonable probability that a jury, on retrial, would believe Garcia’s self serving and somewhat nonsensical testimony over that of all the witnesses to the crimes and the physical evidence and render verdicts more favorable to defendant.
Disposition
The order granting the new trial is reversed.
We concur: GAUT J., KING J.
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