Opinion
A147664
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN RIOS-HERRERA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51517218)
A jury convicted Juan Rios-Herrera of possessing and transporting methamphetamine for sale. Rios-Herrera contends the court erred when it failed to instruct the jury sua sponte that it must agree unanimously on the specific criminal acts underlying the methamphetamine charges against him. He also contends the court erred when it denied his new trial motion based on the prosecutor's failure to provide a police report before trial. We affirm the judgment.
BACKGROUND
On the evening of August 14, 2015, Concord Police Officer Kevin Giacoletto stopped Rios-Herrera for driving while not wearing a seatbelt. He was alone. He was driving a pickup truck registered in his name. When asked for his driver's license, Rios-Herrera told the officer it had been suspended for driving under the influence. Before the officer arrested him for driving with a suspended license, Rios-Herrera consented to the search of his truck.
Based on the results of the search, Rios-Herrera was charged with possession of methamphetamine for sale while armed with a firearm (Health & Saf. Code, § 11378; Pen. Code, § 12022, subd. (c) (count 1)); transportation of methamphetamine while armed with a firearm (Health & Saf. Code, § 11379, subd. (a); Pen. Code, § 12022, subd. (c) (count 2)); carrying a concealable firearm within a vehicle by an ex-felon (Pen. Code, § 25400, subd. (a)(1) (count 3)); possession of a firearm by an ex-felon (Pen. Code, § 29800, subd. (a)(1) (count 4)); and possession of ammunition by an ex-felon (Pen. Code, § 30305, subd. (a)(1) (count 5)).
At trial, Officer Giacoletto testified about his search of Rios-Herrera and his truck. He found $625 cash in Rios-Herrera's wallet. Inside the ashtray in the truck's center console, he found a single bullet wrapped in a piece of paper. In the ceiling compartment, he found a blue towel wrapped around two plastic bags together containing approximately 15 grams or approximately enough for 150 individual doses of methamphetamine. Black electrical tape was in the driver's side door panel, and two pellet guns were in the rear passenger area. Under the hood of the truck, Officer Giacoletto found a firearm; two boxes wrapped in black electrical tape containing ammunition compatible with the firearm; and a blue plastic storage pouch holding an additional two plastic bags of methamphetamine. Each bag contained about 14 grams of methamphetamine, or approximately 280 individual doses total. All of these items were bundled in two shirts wrapped by black electrical tape and wedged into the engine compartment. Officer Giacoletto did not find any paraphernalia in the truck typically used to ingest methamphetamine. He observed nothing to indicate Rios-Herrera was under the influence of methamphetamine. He did not find the types of plastic bags in which methamphetamine is commonly packaged and sold. Nor did he find in the truck other tools associated with selling methamphetamine, such as a measuring scale, cutting agents, or a ledger.
Over Rios-Herrera's objection, the prosecution was permitted to introduce evidence at trial of an uncharged offense pursuant to Evidence Code section 1101, subdivision (b). Contra Costa County Sheriff's Deputy Katie Rhoe testified that on September 10, 2015, she observed Rios-Herrera driving his pickup truck; he had a passenger with him. Because she knew he had an outstanding warrant from the August 2015 incident, Deputy Rhoe stopped Rios-Herrera and arrested him. After Rios-Herrera consented to the search of his truck, Deputy Rhoe found a clear plastic bag containing approximately 26 grams of methamphetamine It was located in the truck bed in the corner closest to the driver seat. The deputy also found at least $985 cash in Rios-Herrera's wallet. There was nothing that indicated he was under the influence of methamphetamine. Deputy Rhoe did not find any pipes, needles or other paraphernalia for using methamphetamine. Nor were any methamphetamine packaging materials, scales, weapons, or ammunition discovered.
A Concord narcotics detective testified as an expert in the possession of methamphetamine for sale and in usable amounts of methamphetamine. He explained that a methamphetamine user will typically ingest .10 grams at a time. Based on the large quantities of methamphetamine found in Rios-Herrera's truck during both the August and September 2015 arrests, the packaging, and the amount of cash he had, the expert opinioned Rios-Herrera had the methamphetamine for sale. The concealment of the drugs found in August 2015 and their proximity to the firearm underscored the expert's opinion, as did the absence of any methamphetamine paraphernalia and the fact Rios-Herrera did not appear to be under the influence during the September 2015 arrest.
With the assistance of an interpreter, Rios-Herrera testified that for about 12 years, he was a daily methamphetamine user. Discussing the August 2015 incident, he stated he knew there was methamphetamine in the ceiling compartment of his truck. However, he said it was for his personal use and he never intended to sell it. He added that he had never sold methamphetamine, explaining he already had a job installing sound systems. Asked where he got the methamphetamine, he said it was provided by a man he had done work for but who had since gone to Mexico. Rios-Herrera testified he had never seen the taped bundle in the truck's engine compartment. Nor was he aware of the single bullet inside the truck. A couple days before his arrest, he loaned his truck to "Chilango," a friend he had known for two months who needed to borrow the truck to transport things before moving to Mexico, and he got it back the day he was arrested. He said he earned the cash in his wallet from installing a couple of sound systems two days earlier. Rios- Herrera testified that when he was arrested in September 2015 he did not know there was a bag of methamphetamine in his truck and had no idea how it got there. When he was asked if he was holding the bag for a friend, he said no and explained the cash he had was from selling a car a few days prior.
In rebuttal, the prosecution recalled Officer Giacoletto and Deputy Rhoe. Officer Giacoletto testified that Rios-Herrera was transported to the police station following his August 2015 arrest. In a recorded interview, Rios-Herrera initially denied knowledge of the firearm in the engine compartment but later admitted he got the firearm and ammunition in exchange for a stereo installation. He told Officer Giacoletto he made sure it was unloaded before placing it near the engine. Eventually, Rios-Herrera admitted he knew the methamphetamine was there, too. Deputy Rhoe testified that following his September 2015 arrest, Rios-Herrera stated the substance in the bed of his truck was his methamphetamine which he got from a friend five days earlier. He did not know his friend's name but could look it up in his cell phone. When Deputy Rhoe asked him why he would leave the methamphetamine in his truck for five days, he said, "I don't know." The deputy also asked him if he sold methamphetamine, and he said he did not, that he used it himself. When asked why he had such a large amount, Rios-Herrera told Deputy Rhoe he was holding it for a friend.
Count 3, carrying a concealable firearm within a vehicle by a felon, was dismissed before the case was submitted. The jury convicted Rios-Herrera of all remaining counts. Following the guilty verdicts, Rios-Herrera unsuccessfully moved for a new trial. He was sentenced to four years in state prison. Rios-Herrera now appeals.
DISCUSSION
Unanimity Instruction
A criminal defendant has a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16.) " 'Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.].' " (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1452, italics added).
"The duty to instruct on unanimity when no election has been made rests upon the court sua sponte. [Citation.]" (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) Even when the defendant does not request a unanimity instruction, "such an instruction must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act." (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
Rios-Herrera argues such a duty arose here because the prosecution relied on two separate acts of methamphetamine possession. Approximately 15 grams were found in the ceiling compartment of his truck and approximately 28 grams were found in the engine compartment. We disagree.
In a prosecution for possession of narcotics for sale, a unanimity instruction is required "where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant." (People v. King (1991) 231 Cal.App.3d 493, 501 (King).)
"This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.] . . . 'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) But a unanimity instruction is not required when the evidence shows only one criminal act. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1198.) We review such a claim of instructional error de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838.)
People v. Wright (1968) 268 Cal.App.2d 196 (Wright) is instructive. There, the defendant was sitting with friends in a car parked near the edge of a cliff overlooking the ocean. (Id. at p. 197.) When police arrived, one of the friends jumped out of the car and threw 10 to 15 marijuana joints over the bluff. (Ibid.) Officers found three marijuana joints in the car, and the following day, two more were found on the face of the cliff. (Ibid.) The defendant was convicted of possession of marijuana. (Ibid.) On appeal, the defendant argued the trial court should have instructed the jurors that in order to find him guilty they had to agree he possessed either the three joints in the car, the two on the cliff, or both. (Id. at p. 198.) The court held no such unanimity instruction was required, stating "it was not necessary to instruct the jury its members must all agree which specific items of narcotics [the defendant] possessed so long as they all agreed at the time and place he possessed, separately, jointly or constructively, a usable amount of marijuana." (Ibid.) It added that the marijuana came from the same car and "[t]he act of possession . . . was not fragmented as to time or space." (Ibid.)
Here, too, no unanimity instruction was necessary. The acts of possession underlying counts one and two were indistinguishable and not fragmented as to time or space, as Rios-Herrera claims. There were not two distinct criminal acts. The stashes in the ceiling compartment and in the engine compartment were located during the same search at the same time. They were similarly wrapped, and black electrical tape was found inside the driver's side door and also used in the bundle in the engine. They were located a very short distance apart in the same pickup truck. Rios-Herrera was the sole occupant of the truck and its registered owner. He was exclusively in constructive possession of all the methamphetamine in his truck when he was arrested. In these circumstances, there was no separation in time or space nor evidence from which the jury could reasonably conclude it was solely possessed by someone other than Rios-Herrera.
In addition, the case was presented to the jury as a single criminal act. As even Rios-Herrera acknowledges, the prosecutor consistently referred to both the methamphetamine in the ceiling compartment and the engine compartment to support both the possession and transportation charges. Indeed, the prosecutor's closing argument made clear the relevant charges were based on the totality of methamphetamine found in the trunk. The prosecutor summarized the evidence supporting the "possession" element in count one by arguing, "There were two places in the car where methamphetamine was located . . . [:]within the engine compartment . . . [¶] . . . [¶] [and] the ceiling compartment." The prosecutor also relied on all of the methamphetamine found to prove Rios-Herrera's "intent to sell" and made repeated references to the "large amount" or "large quantity" found in the truck based on the total findings. The "usable amount" element was similarly argued by the prosecutor: "[L]ook at the quantity of methamphetamine in the defendant's truck . . . [and] add the 15 plus grams in the ceiling compartment, and the 20 plus grams in the engine compartment . . . . [I]t's way over [the] usable amount" typically ingested by someone who uses. The prosecutor extended the same analysis to the count two transportation charge. Thus, for counts one and two, the prosecution presented the case as a single act of possession based on all the methamphetamine in the truck, and the jury would have understood the case in that way. In these circumstances, there was no reasonable likelihood a juror based his or her verdict solely on the methamphetamine found in the ceiling compartment, or solely on the methamphetamine found in the engine.
Rios-Herrera argues that he proffered a different defense for each possessory act, noting his personal use defense for the methamphetamine found in the ceiling compartment and his claimed lack of knowledge defense for that found in the engine compartment. He states, "[t]he duty to instruct on the unanimity requirement arises whenever a defendant charged with possession of contraband presents separate defenses to different acts of possession." We recognize that a factor to be considered in determining if a unanimity instruction is necessary is whether the defendant raised separate defenses to separate narcotics items. (See People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 (Castaneda).) We also recognize that Rios-Herrera presented these distinct defenses to the methamphetamine found in his truck. However, Rios-Herrera has cited no authority that makes this factor dispositive, especially in circumstances such as here where the offense was not reasonably distinguishable by a separation of time and space and there is no evidence showing that the methamphetamine was in the exclusive possession of someone else. The cases Rios-Herrera asserts are "directly on point" were not decided solely because the defendant proffered separate defenses, and they are distinguishable.
In People v. Crawford (1982) 131 Cal.App.3d 591, the defendant was charged with possessing a firearm by an ex-felon. (Id. at p. 593.) In the defendant's bedroom, the police found a handgun in his closet and another handgun holstered at the foot of his bed. (Ibid.) The defendant's girlfriend testified that the gun in the closet was hers, and she and the defendant had never seen the firearm holstered to the bed. (Ibid.) In rebuttal, the prosecution introduced that two more firearms had been found in an upstairs bedroom in which a third person was sleeping. (Id. at pp. 594-595.) The court explained that "where the acts [of possession] were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." (Id. at p. 599.) However, under the circumstances, the court observed the possession of the guns "was fragmented as to space," and there were "unique facts surrounding the possessory aspect of each weapon." (Id. at p. 599.) While the defendant proffered separate defenses to each of the guns, the court imposed a unanimity instruction because "the acts of possession were not factually identical." (Id. at p. 599.)
In King, supra, 231 Cal.App.3d 493, the defendant was charged with possessing methamphetamine for sale. (Id. at p. 495.) In the defendant's house, the police found methamphetamine in a purse in the living room, loaded into a syringe in the same purse, and in bags concealed inside a decorative ceramic statute in the kitchen. (Id. at p. 498.) The defenses were that the methamphetamine in the purse belonged to another woman who was detained after attempting to flee the scene, and the methamphetamine in the kitchen belonged to her boyfriend who testified to such. (Id. at pp. 498-499.) The court held "in a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant," a unanimity instruction must be given. (Id. at pp. 501-502.) The defendant's separate defenses were not the bases for the court's conclusion.
In People v. Hernandez (2013) 217 Cal.App.4th 559, the defendant was charged with illegally possessing a gun and ammunition. (Id. at p. 562.) The prosecution introduced evidence that police found a gun in the car driven by the defendant, and there was also evidence the defendant had a gun at his girlfriend's apartment hours earlier. (Id. at pp. 566, 571.) The defendant asserted separate defenses to each possessory act, contending he did not have a gun at his girlfriend's apartment and he did not have dominion and control over the gun in the car. (Id. at p. 574.) The court found "the circumstances surrounding each instance of possession . . . were significantly different. They were separated in time and in space, and [the] defendant tendered different defenses to each instance of possession." (Id. at p. 576.) While the court recognized different defenses were presented, the different circumstances surrounding each possessory act also favored a unanimity instruction.
Finally, in Castaneda, supra, 55 Cal.App.4th 1067, the defendant was charged with one count of possession of heroin. (Id. at p. 1069.) Police found heroin in the defendant's coin pocket and on the back of a television set in his ex-wife's house where he no longer lived. (Id. at pp. 1069-1070.) The defendant offered separate defenses for each amount, asserting the heroin found in his coin pocket was planted or fabricated and that found on the television was his son's. (Id. at p. 1071.) Since the "acts of possession were factually distinct" and the defendant "offered separate defenses to each act," the court ruled a unanimity instruction was required under the circumstances. (Id. at p. 1071.) Here, too, separate defenses alone did not mandate a unanimity instruction.
We need not address the other two cases Rios-Herrera cites. In People v. Wesley (2012) 177 Cal.App.3d 397, there is no discussion about the defenses tendered by the defendant to the narcotics possession charges, and they do not bear on the analysis. (Id. at pp. 401-402.) In People v. Wolfe (2003) 114 Cal.App.4th 177, the defendant asserted the unitary defense that the six firearms he was charged with unlawfully possessing belonged to his mother. (Id. at p. 181-182.)
While separate defenses to acts of possession were proffered by the defendants in the cases Rios-Herrera relies upon, they did not provide the exclusive basis for a duty to instruct on unanimity. In Crawford and King, the separate defenses were not even cited as reasons for the instruction. Rather, all the cases involved distinct factual circumstances surrounding the possessory act at issue, or possessory acts fragmented as to time or space. That is not the case here, where the circumstances surrounding Rios-Herrera's possession of the methamphetamine stashes in his truck were not meaningfully different. Thus, a unanimity instruction was not required, and the court had no sua sponte duty to give one. In light of this conclusion, we need not consider whether Rios-Herrera was prejudiced by the lack of any such instruction.
Failure to Disclose Related Police Report
Rios-Herrera also argues the prosecution violated its constitutional duty under Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose favorable and material evidence before trial. Because of this failure, he contends the trial court was required to grant his new trial motion. We again disagree.
Facts
Before trial, Rios-Herrera's counsel had requested the prosecution disclose all police reports relevant to his case pursuant to its constitutional duty under Brady. The prosecution provided a discovery packet that included Deputy Rhoe's report regarding Rios-Herrera's September 2015 arrest. That report summarized her search of Rios-Herrera's truck. One line on the report stated: "Herrera's mother, the passenger of the vehicle, was arrested by [Contra Costa Sheriff's] Deputy [Scott] Pliler (15- 14980)."
Two weeks after the trial ended, the prosecutor notified Rios-Herrera's counsel that he learned about and transmitted Deputy Pliler's report, which was not provided to defense counsel prior to trial. Deputy Pliler, who assisted Deputy Rhoe during the September 2015 incident, completed a separate police report focusing on the arrest of Rios-Herrera's passenger, his 65-year old mother, Amelia Herrera (Amelia). According to Deputy Pliler's report, 18.7 grams of methamphetamine were found in the bag Amelia had been holding which also contained her identification. Deputy Pliler estimated the quantity amounted to approximately 180 individual doses. Amelia was arrested that day for possessing methamphetamine for sale along with her son. The report further noted that during the course of the arrest, Amelia's other son arrived on the scene and indicated Amelia was from Mexico and had only been in the United States for three days.
A couple of weeks after receiving Deputy Pliler's report, Rios-Herrera moved for a new trial pursuant to Penal Code section 1181, subdivision (8) based on newly discovered evidence. After hearing argument, the court concluded in part the report was not material and denied the motion.
Brady Analysis
Under Brady, the prosecution must disclose to the defense any evidence that is "favorable" to the accused and is "material either to guilt or to punishment." (Brady, supra, 373 U.S. at p. 87.) To find a Brady violation, appellant must first show that evidence was suppressed, either willfully or inadvertently. (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) Second, the suppressed evidence must either help the defendant or hurt the prosecution in that it is exculpatory or has impeachment value. (Ibid.) Third, the suppressed evidence must be material, meaning it is reasonably probable that, had the evidence been disclosed, the result of the proceeding would have been different. (Ibid.) On appeal, the defendant has the burden to establish the elements of a Brady violation. (Strickler v. Greene (1999) 527 U.S. 263, 289, 291.) A court reviewing a suspected Brady violation independently reviews the question of whether a Brady violation has occurred but gives "great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner (2010) 50 Cal.4th 99, 176.)
There is a strong case to be made that Rios-Herrera has no Brady claim because of his lack of diligence. " '[W]hen information is fully available to a defendant at the time of trial and the defendant's only reason for not obtaining and presenting evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.' " (People v. Morrison (2004) 34 Cal.4th 698, 715.) Deputy Rhoe's report, which Rios-Herrera received before trial, referenced Deputy Pliler's report and stated that Rios-Herrera's mother was a passenger in the truck and was also arrested. It even listed Deputy Pliler's report number. Thus, the report was within Rios-Herrera's knowledge at the time of trial and could have been available to him through the exercise of due diligence.
Nonetheless, given the prosecutor's failure to disclose the full report, we shall further consider his Brady claim. Even assuming arguendo that Rios-Herrera established the first two elements under Brady, that evidence was suppressed inadvertently and the evidence would have helped him or hurt the prosecution, we cannot conclude he established the third element, namely, the suppressed evidence was material.
"[F]avorable evidence is material, and constitutional error results from its suppression by the government, 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (Kyles v. Whitley (1995) 514 U.S. 419, 433 (Kyles).) " 'The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense.' [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 829.) " '[M]ateriality . . . requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction "more likely" [citation], or that using the suppressed evidence to discredit a witness's testimony "might have changed the outcome of the trial" [citation]. A defendant instead "must show a 'reasonable probability of a different result.' " [Citation.]' [Citation.] . . . The requisite "reasonable probability" is a probability sufficient to "undermine [ ] confidence in the outcome" on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]." (In re Sodersten (2007) 146 Cal.App.4th 1163, 1226.) "[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial." (United States v. Agurs (1976) 427 U.S. 97, 108.)
Deputy Pliler's report was not material under this standard, and we are confident Rios-Herrera received a fair trial even in the absence of this report. Rios-Herrera was charged, tried, and convicted for the methamphetamine, firearm, and ammunition found in his truck in August 2015. The fact that a month later his mother was arrested for methamphetamine charges at the same time he was does not bear upon the August incident. There was substantial evidence at trial to support his conviction on all charges. Rios-Herrera was the registered owner and sole occupant of the truck. Large quantities of methamphetamine were found in the ceiling compartment and concealed near the engine, along with a firearm and boxes of ammunition. He freely admitted the methamphetamine in the ceiling was his; and after his arrest, he admitted he was aware of the other items under the hood, as well. Given the strength of this evidence with respect to the charged offenses and the collateral nature of the evidence regarding Rios-Herrera's mother in Deputy Pliler's report, the undisclosed report cannot reasonably be taken "to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles, supra, 514 U.S. at p. 435.) Since there is no reasonable probability that the result of the trial would have been different had Deputy Pliler's report been closed before trial, it was not material.
Rios-Herrera asserts that he did not need to show disclosure of the withheld evidence would "have changed the outcome of the trial." Rather, he contends he only need demonstrate "whether in its absence he received a fair trial, understood as resulting in a verdict worthy of confidence." In this case, the practical differences between the standards perceived by Rios-Herrera are not outcome determinative. Based on our independent review, under the standard Rios-Herrera espouses, he received a fair trial and the jury's verdicts remain worthy of confidence.
Rios-Herrera also advances several arguments that the undisclosed evidence "impaired the adversary process and thereby undermined confidence in the outcome of the trial." None of these compel a different result.
He contends the prosecution might have opted not to introduce the Evidence Code section 1101 evidence to prevent the jury from learning a large quantity of methamphetamine was found in the actual possession of a passenger in his truck at another time. He speculates he would have only had to explain the August 2015 incident and not the uncharged offense. Thus, he would have had a better chance at success with the single explanation. We do not know whether the prosecution might have offered the uncharged offense evidence had Deputy Pliler's report been produced, but we are confident that there was no reasonable possibility the outcome at trial would have been different. As discussed above, the jury had evidence to support the guilty verdicts on all counts. Rios-Herrera's argument that he would have fared better if he only had to explain the August 2015 incident is wishful thinking. We agree with the trial court's assessment that Rios-Herrera's testimony on the August 2015 incident was "highly implausible."
Rios-Herrera also argues the Deputy Pliler's report would have diminished the probative value of the evidence related to the uncharged offense as providing a basis for his lack of knowledge about the methamphetamine in the bed of his truck. Not likely. There is no indication in Deputy Pliler's report, nor any evidence in the record, to suggest that Amelia knew about or was connected to the methamphetamine found concealed throughout her son's truck at anytime. Moreover, the rebuttal evidence that would have invariably been introduced as to the September 2015 offense undermines Rios-Herrera's argument. Following his September arrest, he acknowledged to Deputy Rhoe he got the methamphetamine found in the bed of his truck from a friend, showing that he knew of the methamphetamine and it did not come from his mother.
He further asserts Deputy Pliler's report would have supported a credible third-party defense. He says his mother's "actual and constructive possession of the methamphetamine on September 10, 2015 . . . supported the reasonable inference she had placed the bundle containing methamphetamine and the associated contraband in the truck on August 15, 2015." For the uncharged offense, he claims his mother's "actual possession . . . of a large quantity of methamphetamine in her bag supported the reasonable inference she likewise had placed the similar quantity of the drug in the bed of the truck." Both contentions are easy to dismiss. Deputy Pliler's report indicates Amelia arrived in the United States three days before her arrest, and Rios-Herrera has not tendered any evidence she was in the country earlier. She could not have placed methamphetamine in the engine of her son's truck in August 2015. As for the uncharged offense, no third-party defense pinning blame on his mother would have been convincing to a jury given that Rios-Herrera admitted to Deputy Rhoe that the methamphetamine in the bed of the truck was his and he got it from a friend five days earlier. Rios-Herrera's Brady claim fails.
New Trial Motion
Penal Code section 1181, subdivision (8), states in relevant part that a new trial may be ordered, "When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (Pen. Code, § 1181, subd. (8).) To obtain a new trial based on newly discovered evidence, the moving defendant must show (1) the evidence, and not simply its materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) the defendant in the exercise of reasonable diligence could not have discovered and produced the evidence at trial; (4) the newly discovered evidence is of such strength that a result more favorable to the defendant is probable if the new evidence is admitted on retrial; and (5) these facts are shown by the best evidence of which the case admits. (People v. Howard (2010) 51 Cal.4th 15, 42-43.) A trial court's ruling denying a motion for new trial on this ground will not be disturbed on appeal unless a manifest and unmistakable abuse of discretion is clearly shown. (People v. Delgado (1993) 5 Cal.4th 312, 328.)
For the reasons discussed in our Brady analysis, it is not reasonably probable Rios-Herrera would obtain a more favorable result if the case were retried and the trial court either admitted Deputy Pliler's report or excluded Deputy Rhoe's report related to the uncharged offenses.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.
Presiding Justice of the Court of Appeal, First Appellate District, Division Four, sitting by assignment pursuant to article VI, section 6 of the California Constitution. --------