Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04902626-1, James L. Quaschnick, Judge.
Geragos & Geragos, Mark Geragos; Law Office of Cliff Gardner, Cliff Gardner and Lazuli Whitt for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted Tannen Soojian of various crimes resulting from an armed robbery of Joyce Ahumada and her son, Morgan Ahumada. Joyce was shot during the robbery, sustaining serious injuries. The crimes for which Soojian was convicted included attempted murder (Pen. Code, §§ 664, 187) and robbery (§ 211).
We will refer to Joyce Ahumada and her son Morgan Ahumada by their first names, not out of disrespect but to ease the reader’s task.
All statutory references are to the Penal Code unless otherwise indicated.
Soojian’s defense concentrated on showing inconsistencies in the prosecution’s evidence to establish that he was not the perpetrator. During the prosecution’s case, unexpected evidence was elicited that led Soojian and his counsel to suspect that Soojian’s cousin, Aaron Bolin, was the actual perpetrator. Additional evidence was introduced in an attempt to establish Bolin’s guilt. The jury’s verdict established that it rejected Soojian’s theory.
After the verdicts were reached, Soojian’s counsel was able to locate additional evidence that implicated Bolin. Soojian moved for a new trial based on this newly discovered evidence. (§ 1181, subd. (8).) The trial court denied the motion.
Soojian contends the trial court abused its discretion in denying the motion because it relied on law that was inapplicable to the motion. As we shall explain, we agree and will vacate the order denying the motion for a new trial and remand the matter to the trial court for reconsideration of the motion.
FACTUAL AND PROCEDURAL SUMMARY
On April 18, 2004, Joyce and Morgan were delivering the Sunday morning newspaper in her small pickup when she observed erratic driving behind her. The vehicle had its bright lights on and stayed behind Joyce’s vehicle as she delivered papers. When Joyce pulled up next to a newspaper box at Calhoun Ranch, the vehicle passed her very slowly. As the vehicle passed, the driver turned his body around very slowly and Joyce could see his face. The vehicle then backed up and stopped beside Joyce’s vehicle.
The vehicle was a very large club cab-type pickup with four doors. Its engine was loud like a diesel engine. The window of the front passenger door of the pickup opened. One person, a man, was in the pickup. He asked Joyce how to find Clovis. She responded that it was straight ahead. The man said he could not hear her and asked if he could get out and show her an address he was trying to find. Joyce agreed. As the driver approached, Joyce could see his face. The pickup was on the pavement, but pulled off slightly. The windows of the pickup were tinted, the floor was messy, and the interior smelled of stale cigarettes. The interior was a dark vinyl.
When the man arrived at the window of Joyce’s vehicle, he leaned very close to Joyce and pointed a handgun at her face. He yelled at Joyce, stating that if she looked at him, he would shoot her. The man yelled at Morgan to stop looking at his face. The man stated he was there to rob Joyce. Joyce dropped her head down and told Morgan to give the man her wallet, which was in the glove compartment. Morgan gave the wallet to Joyce, and she handed it to the man. The man yelled repeatedly that if Joyce or Morgan looked at him, he would shoot them.
The man next instructed Joyce to get out of her vehicle. He opened the vehicle door and put the gun in Joyce’s side when she got out of the vehicle. Morgan was instructed to stay in the vehicle. The man grabbed Joyce’s arm and directed her around to the other side of the vehicle. Joyce kept her head down and did not look at the man. When the two arrived at the passenger side of the vehicle, the man ordered Morgan out of the vehicle. When Morgan got out of the vehicle, he dropped the paper route maps on the ground.
The three then walked to the man’s pickup. When Morgan looked at the man, the man told him to stop and appeared to become upset. The man instructed Morgan to get into the bed of his pickup. Morgan climbed up on the tire, a very large tire, and climbed into the bed. The man then told Morgan to lie down on his stomach. Morgan did so, with his head facing the tailgate.
The man then directed Joyce to the front passenger door, opened the door, and told her to get inside the cab. Joyce continued to keep her head down because she did not want to see or have the man start yelling again. She did, however, glance at his face as she was trying to convince him to release Morgan and her. Joyce was told to get on her knees on the floor facing the rear of the pickup. Joyce put her head down on the seat, and the man climbed in the pickup through the same door. The man paused while he was behind Joyce, and she could feel that he had an erection. The man moved over to the middle of the bench seat. The man next told Joyce to move next to his legs, but then he moved over to the driver’s seat. He still had the gun pointed at Joyce’s head. Joyce noticed that the gear shift was on the steering column as the man attempted to put the vehicle into gear.
Joyce then exploded and started screaming “no.” She tried to grab the keys or the gearshift to keep the pickup from going anywhere. The man was hitting Joyce in the head with the gun. Joyce felt the keys on the steering column. There were “quite a few” keys on the key ring. The man then hit Joyce on the bridge of her nose. The man was yelling at Joyce, calling her names. The two struggled and then the man became upset and told Joyce he was going to kill her. He pulled the gun up and shot at Joyce twice. Joyce reached for the passenger door handle. She also felt pressure on her chest near her right shoulder. Joyce was able to open the door and escape the pickup. The man jumped towards his door. Joyce yelled at Morgan to get out of the pickup. Morgan barely was able to get out of the pickup before it jolted forward. Joyce and Morgan started running. The pickup then left the scene.
Joyce was able to run to a residence and yelled for help. She felt wet, and knew she had been shot. She had surgery to stop the bleeding. The surgery successfully stopped the bleeding in her chest, but she had many small cuts on her head that did not stop bleeding for days.
Joyce never had seen the man before, and he did not say his name. Joyce stated the man was wearing jeans and a white short sleeve, collarless shirt with buttons on the front that went part way down. He was not wearing gloves. His face was red, as if it were sunburned, his hairline slightly higher, and he was taller than Joyce’s five-foot three-inch height. He was not “extremely tall,” and appeared to be in his 30’s or 40’s. He was clean shaven. She did not smell an odor of alcohol on the man’s breath.
Joyce identified Soojian as the man.
She testified that the man was stockier than Soojian appeared at trial, and he had hair that was a lighter shade than Soojian’s. Soojian was younger than the age range described by Joyce. Soojian had a goatee. Joyce testified that Exhibit 46, a photograph of the interior of Soojian’s pickup, did not look like the pickup the man drove because there was an armrest and center console in the picture.
Shortly after the incident, Joyce described the man as a White male, 35 to 40 years of age, stocky, short reddish-colored hair, and approximately five feet four inches tall. Joyce never recovered her wallet or any of its contents.
Shortly after surgery Detective Patrick Oh and some other officers showed Joyce some pictures and asked her if she could identify the perpetrator. Joyce pointed to someone and the officers left. Joyce said that she pointed to one photograph that looked like the perpetrator. She recognized the hairline, nose, and other facial characteristics. “[T]here was [sic] other faces and that was the one I picked.” Joyce identified Soojian’s vehicle as the pickup the perpetrator drove on the night of the shooting. (Exh. 41)
Morgan was 19 at the time of trial and 16 on the day of the shooting. Morgan noticed a white pickup, which appeared to be a GMC, swerving in front of him and his mother as they were delivering the newspapers. The pickup pulled to the side of the road. Joyce drove past the pickup. The pickup drove past Morgan and Joyce while they were delivering a newspaper to a ranch. The pickup then stopped and backed up. A man in the pickup asked if Joyce knew how to drive to Clovis. The man got out of his pickup to show Joyce an address. When Morgan, who had been leaning out of the vehicle to deliver the paper, looked back, the man was pointing a gun at Joyce’s head. The man stated he was going to rob Joyce and Morgan. Joyce told Morgan to get her wallet out of the glove compartment and she handed it to the man.
The man then told Joyce to get out of the vehicle with her arms raised and instructed her not to look at him. Morgan looked at the man only slightly because of the gun. Joyce and the man walked to the passenger side of Joyce’s pickup where the man ordered Morgan to get out of the vehicle. Morgan stared at the man, who screamed at Morgan to stop looking at him. The man ordered Morgan to get into the bed of the pickup truck, face down. All four tires were on the pavement.
Morgan then heard the man order Joyce to get into the cab of the pickup. The pickup started to move and then both Joyce and the man began screaming. The pickup began moving and stopping erratically. Morgan heard the man say “now you get shot,” and then heard two gunshots. Joyce jumped out of the truck and yelled at Morgan also to jump. Joyce and Morgan ran away. The man stopped and got out of his pickup. He pointed his gun at Morgan and Joyce, but then got into the pickup and left without firing another shot. Joyce and Morgan ran to a residence. Joyce hopped over a fence and ran to the residence. Morgan ran back to Joyce’s pickup to get the cell phone. He called emergency to obtain assistance.
Morgan found two seeds in his hair while emergency personnel were attending to Joyce. A deputy sheriff took the seeds as evidence. Morgan noticed the same seeds in the bed of the man’s pickup truck. Morgan described the pickup truck as a double cab, four doors, sounded like a diesel engine, and had large tires and wheels. Morgan recalled there was something like a horse bridle and a toolbox in the back of the man’s pickup truck.
Morgan identified exhibit 41, a photograph of Soojian’s pickup, as the man’s pickup and identified the bridle in exhibit 44, also a photograph. He also identified a yellow substance as being inside the man’s pickup bed from exhibit 44. Morgan testified that the toolbox in the pickup did not extend all the way across the truck bed.
Morgan spoke with Oh at the hospital. Oh showed him some photographs and Morgan identified the man. After reviewing Oh’s police report, Morgan stated he could not identify the man in the pictures he was shown by Oh. Morgan did not identify Soojian at trial as the perpetrator.
Larry Crawford lived close to where the incident took place. He recalled hearing a woman screaming, a gunshot, and then silence. Next, he heard a commotion, like someone getting in and out of a vehicle, and then the sound of a vehicle taking off quickly. As the vehicle departed the scene, Crawford heard a noise that sounded as if the vehicle had a construction rack. Crawford was working in construction at the time, and he heard that sound every day.
Austin Herion is a deputy sheriff with the Fresno County Sheriff’s Department. On April 18, 2004, at 3:54 a.m., he was dispatched to an area near the intersection of Shaw Avenue and DeWolf Avenue in Fresno County. At the scene, Herion met Morgan, who told him his mother had been shot. Morgan told Herion where his mother was located. Herion found her lying in a pool of blood. Joyce was not able to speak to Herion, but she indicated she was okay. An ambulance arrived and began caring for Joyce.
Herion obtained a statement from Morgan, who appeared to be unharmed. Morgan could describe the perpetrator only as a White male. Morgan provided a description of the perpetrator’s vehicle as a white two-door Ford or Chevy pickup with two occupants. When Herion talked to Morgan a second time, he stated the vehicle was a four-door pickup. Morgan also told Herion that Joyce’s credit cards should be in the vehicle. Joyce later stated it was a four-door pickup. In his radio transmissions, Herion stated that Joyce was shot in the suspect’s vehicle, so there should be a significant amount of blood in the vehicle.
Herion next assisted other deputies in searching the area. Herion located a written estimate with an address on it. The estimate was from a company called Tri R. Ceramics and listed a customer name, address, and phone number. The customer listed on the estimate testified that Soojian had given her the estimate approximately one to two weeks before she was contacted by the police. The estimate was dated April 13, 2004, five days before the shooting.
On April 18, 2004, at 7:13 a.m., another officer issued a bulletin asking other units to be on the lookout for a full-size four-door pickup with a solid rear window. The suspect was described as a White male, mid-40’s, short, medium build, with thinning brown hair. The weapon was described as a silver handgun, caliber unknown.
Deputy Sheriff Michael Clark responded to the scene and then to the hospital to speak with Joyce. He spoke with Joyce before she went into surgery. Considering her injuries, she had a very good demeanor. Joyce described the perpetrator as a White male adult, age 38 to 45, five feet four inches tall, with a heavy build. He was “clean-cut” and was wearing a white T-shirt. The reference in the report to the suspect being “clean-shaven” was erroneous.
At the scene, shoe tracks were observed and documented along the left rear portion of Joyce’s pickup. The shoe tracks were compared to the sandals recovered from under Soojian’s residence. There were no individual characteristics, but the comparison suggested that the shoes could have left the tracks found at the scene.
An empty cigarette pack also was found at the scene. No fingerprints were recovered from it. The driver’s door of Joyce’s pickup also was processed for fingerprints. A small partial palm print was recovered from the driver’s doorjamb. The palm print was consistent with someone opening the door with his or her left hand. The palm print later was compared to Soojian’s palm print, and it was determined that he did not leave the print on Joyce’s vehicle. The print was not run through any automated data bases.
Deputy Sheriff Mark Chapman was at Soojian’s residence, a mobilehome, when a search warrant was obtained. He inspected Soojian’s vehicle, which he described as a white four-door GMC diesel pickup. The pickup was unlocked, with the keys in the ignition. The front seat center console was in the “down” position. The console folded up to make a front bench seat. On the front passenger seat was a small metal box in which forms could be stored and on which one could write. Recovered from the interior, among other items, was a checkbook and a paycheck stub that indicated Soojian had been paid gross wages of $600 for the preceding week. There also was a coffee cup located on the center floorboard in front of the center console. A torn piece of paper was recovered from the pocket in the driver’s side door of the pickup truck.
In the bed of the pickup was a yellow tow strap, two horse halters, two ropes, a bag of grout, a toilet seat still in the box, chipped grout strewn across the bed, and some vegetation. On the outside of the pickup, Chapman noticed an area along the passenger side just to the rear of the rear wheel that appeared recently to have been wiped. There was an area on the passenger side just above the rear tire that appeared to Chapman to be an impression left by some type of cloth. The inside of the pickup bed was vacuumed by a technician before the truck was towed for a more thorough inspection.
Tire impressions were taken from the pickup. The tire tracks at the scene that were located just behind Joyce’s pickup were not from Soojian’s pickup. Samples of possible blood stains were taken from above the stereo in the dash area, from the steering wheel, and from the front passenger side door. There were no cigarettes, nor were there any cigarette butts in the pickup. No pellets were found in the pickup. There was nothing located in Soojian’s pickup that belonged to Joyce or Morgan. Nor was Joyce’s wallet or the contents recovered from the scene. Hair found in the bed of Soojian’s pickup did not belong to Morgan. Nor were there any seeds in the bed of the pick up that matched the seeds found in Morgan’s hair.
The search of the outside of Soojian’s residence located a pair of black pants that were rolled around a pair of sandals. These items were located behind the skirt surrounding the mobilehome. The pants were a size 36-inch waist and 34-inch inseam. The sandals were size 11. Inside the house detectives located some .22-caliber rifle ammunition with small pellets inside. A cartridge was disassembled and the pellets weighed 53.8 grains. The cartridges would not fit into a standard .22-magnum caliber revolver or semiautomatic handgun. There is one semiautomatic revolver called an “Auto Mag” that would fire the cartridges. They recovered a shirt, which had a stain that might have been blood. There were several rifles found at the residence, but no one determined whether any of the rifles would fire the ammunition recovered from the inside of the residence.
When Soojian was arrested, he was wearing size extra-large underwear (size 42 to 44), and size extra-large shorts. Size 10 shoes were recovered from the residence. Blue jeans seized at the residence were a size 38-inch waist and 32-inch inseam.
The written estimate recovered from the scene was determined to match the torn piece of paper found in Soojian’s pickup.
DNA testing yielded the following relevant results: The scrapings from Soojian’s fingernails contained only Soojian’s DNA; the blood stain on the written estimate recovered at the scene contained only Joyce’s DNA; the blood stain on the steering wheel of Soojian’s pickup was consistent with originating from both Soojian and Joyce and one in every 11 million individuals in the general population; one stain on the black pants contained DNA that was consistent with Joyce’s DNA. The statistical probabilities would be much less if related individuals were considered. If a related individual were tested, one would expect the two to have many of the same values at specific markers. It would be expected that Soojian’s DNA would be on the steering wheel of his pickup since he used it regularly.
Statistically, the profile from the fingernail scrapings would occur once in every 782 quadrillion unrelated individuals.
The statistical probability was one in every 303 quadrillion unrelated individuals.
The statistical probability was one in every 303 quadrillion unrelated individuals.
Analyses of the samples taken from Soojian indicated that there was no gunshot residue on either his right or left hand.
Soojian was charged by information with two counts of kidnapping to commit another crime (Joyce and Morgan) (§ 209, subd. (b)(1)), attempted murder (§§ 664, 187), two counts of assault with a deadly weapon (Joyce and Morgan) (§ 245, subd. (a)), and second degree robbery (§ 211). In addition, the information charged Soojian with personally discharging a firearm, causing great bodily injury within the meaning of section 12022.53, subdivision (d), personally inflicting great bodily injury within the meaning of section 12022.7, subdivision (a), and personal use of a firearm within the meaning of section 12022.5, subdivision (a) in the counts in which Joyce was a victim, and personally using a firearm within the meaning of section 12022.53, subdivision (b) and personal use of a firearm within the meaning of section 12022.5, subdivision (a) in the counts in which Morgan was the victim. The jury found Soojian guilty of all counts and found all enhancements true.
Soojian also was accused of kidnapping for the purposes of committing a rape and sexual assault arising from a separate incident involving a separate victim. The jury found he was not guilty of these crimes. Accordingly, we have not included in our review the evidence related to these counts.
DISCUSSION
Posttrial proceedings
At trial, the testimony produced two facts that appeared to surprise both the prosecution and the defense. Morgan testified that the perpetrator’s pickup had an attached metal toolbox in the bed of the truck. Crawford, the neighbor who heard the perpetrator’s pickup when it fled the scene, testified that he recognized the rattling sound made by the truck as it left the scene as the sound of a construction rack attached to the bed of the truck.
As a result of this testimony, Soojian introduced pictures of a pickup owned by Bolin. The pictures showed the pickup towing a horse trailer and having a construction rack and toolbox attached to the bed of the pickup. Soojian’s counsel also requested that Oh attempt to determine through the Department of Motor Vehicles (DMV) whether Bolin owned the pickup in 2004, but a DMV search required a license plate number for the vehicle, which Oh did not have.
Oh described Bolin as approximately 5 feet 10 inches tall, weighing 230 pounds, a size similar to Soojian. Soojian’s father testified that Bolin was a few inches shorter than Soojian. Soojian also elicited testimony from Angela Butler, the DNA expert, that the statistical analysis on which the probabilities were based assumed that the relevant individuals were not related. If there were two related individuals who were possible donors of the DNA, then the statistical probabilities would decrease dramatically.
Soojian used this evidence and other inconsistencies in Joyce’s and Morgan’s testimony to argue that the real perpetrator was Bolin. Soojian’s counsel emphasized the following facts: (1) Morgan, who claimed to have a good view of the perpetrator, did not identify Soojian as the perpetrator; (2) the palm print left on the door of Joyce’s pickup, presumably by the perpetrator, was not left by Soojian; (3) the palm print was never run through the Fresno County automated palm print system; (4) Joyce, who did identify Soojian, was subjected to tremendous trauma and was medicated when she picked Soojian out of a photo lineup; (5) the tire tracks found at the scene, and presumably left by the perpetrator’s vehicle, were not left by Soojian’s pickup; (6) the initial radio broadcast identified the perpetrator’s vehicle as a two-door pickup; (7) Bolin lived within 300 yards of Soojian at the time of the crime; (8) Joyce described the perpetrator as clean shaven, while Soojian had a full goatee at the time of the crime; (9) Bolin and Soojian appeared similar in the areas of the face Joyce focused on when picking Soojian’s picture out of the photo lineup; (10) Joyce initially described the perpetrator as being five feet four inches tall, while Soojian was 5 feet 10 inches tall; (11) Bolin was shorter than Soojian; (12) Bolin did not have a goatee; (13) Soojian was with his six-year-old son on the night of the crime; (14) there was no gunshot residue on Soojian’s hands when he was arrested; (15) Joyce’s DNA was not present under Soojian’s fingernails; (16) Bolin was present at his residence when the officers arrested Soojian, but his truck was not present; (17) there were no cuts or bruises on Soojian when he was arrested, as would be expected based on Joyce’s testimony; (18) Soojian had no motive to rob Joyce; (19) the wallet taken from Joyce never was recovered; (20) Morgan did not identify several items that were found inside the bed of Soojian’s pickup when he was arrested (tile mortar, toilet seat); (21) there were no pellets found inside of Soojian’s pickup; (22) the seeds in Morgan’s hair did not come from the bed of Soojian’s pickup; (23) none of Morgan’s hairs were found inside the bed of Soojian’s pickup; (24) the clothes recovered from underneath Soojian’s mobilehome were a different size than worn by Soojian; (25) only a single drop of Joyce’s blood was found inside the cab of Soojian’s pickup where one would expect significantly more blood to have splattered based on Joyce’s injuries; (26) Joyce stated the inside of the truck smelled like cigarettes, yet Soojian’s pickup did not have that odor; and (27) the keys were in the ignition of Soojian’s pickup when he was arrested, giving Bolin easy access.
The jury obviously disagreed when it found Soojian guilty. It reasonably could have concluded that the one drop of Joyce’s blood found inside the cab of Soojian’s pickup, when combined with Joyce’s identification of Soojian as her attacker, was sufficient evidence to conclude that he was guilty beyond a reasonable doubt.
Soojian’s defense team did not stop its efforts at the end of trial. The investigator for Soojian, Scott I. Ross, attempted to contact Bolin to obtain the license number for the pickup pictured in the trial evidence, information the DMV stated it needed to determine the ownership history of a specific vehicle. Bolin did not return his phone calls. Ross contacted numerous family members in his search. He eventually learned that the vehicle had been owned by another family member, Travis Hulsey. Hulsey’s father located the front license plate of the vehicle in his garage, where it had been stored after an accident. Using this vehicle license number, Ross contacted the DMV and obtained the ownership history of the vehicle. The DMV confirmed that Bolin owned the vehicle on April 1, 2004, the date of the crime. Ross also obtained the name of the current owner and arranged to purchase the vehicle. The vehicle, a 1989 light-colored, two-door Ford pickup, with a gasoline engine, was then transported to a storage facility.
The vehicle was then examined by Technical Associates, Inc. (TAI). TAI was not able to recover any DNA from the vehicle. It did, however, locate a California driver’s license belonging to Joyce Marie Ahumada, with an expiration date of July 24, 2005, lodged near the base of the passenger’s seat belt. Also recovered from the interior of the vehicle were 22 pellets from various locations on the passenger side of the interior of the vehicle. The weight of 15 of these pellets was determined to be 0.1411 grams. TAI also obtained and weighed 15 pellets from a “snake shot” cartridge and determined those pellets weighed 0.1483 grams.
The pellets were selected randomly.
Soojian also obtained a declaration from Peter Delgadillo, an employee of the Soojian family tile business since approximately 2002. Before joining the tile business, Delgadillo had worked in a gun shop, thereby becoming familiar with weapons and ammunition.
When Delgadillo joined the tile business, he initially worked with Bolin. Delgadillo confirmed that Bolin owned a two-door tan Ford pickup with a toolbox across the back of the bed below the rear window, two toolboxes along each bed rail, and a lumber rack above the bed. Delgadillo and Bolin worked together on a daily basis, and a friendship formed. On one occasion Delgadillo and Bolin rode in Delgadillo’s pickup to go shooting on the Soojian ranch. The next morning, Delgadillo discovered that Bolin had left a revolver in his (Delgadillo’s) pickup. Before Delgadillo returned the weapon, he removed the cartridges. Every other cartridge had a colored plastic cap with numerous small pellets inside the plastic cap. When Delgadillo inquired about the cartridges, Bolin described them as “snake shot.”
With this evidence in hand, Soojian moved for a new trial based on newly discovered evidence. (§ 1181, subd. (8).) In his reply to the People’s opposition, Soojian submitted the declaration of one of the jurors in the case wherein she stated that had this new evidence been submitted at trial she would not have voted to convict Soojian.
The trial court found the new evidence was suspect. The trial court also found the circumstances surrounding the juror’s declaration to be suspect, concluding it was entitled to little, if any, weight. The trial court concluded:
The trial court also questioned whether the declaration was admissible pursuant to the terms of Evidence Code section 1150. This section is limited, by its terms, to inquiries “as to the validity of a verdict.” (Id., subd. (a).) Since Soojian was seeking a new trial based on newly discovered evidence, and not on the grounds of juror misconduct, the section does not appear to have any application to the issue before the trial court.
“Now, as required by law in hearing arguments of counsel and review of the motions and replies and responses and a review independently of the evidence I find there is more than sufficient evidence to support the verdict. The newly discovered evidence by the Defendant concerning finding Bolin’s truck more than three years after the crime was committed and with several transfers of ownership, the Defense investigator found snake shot pellets and victim’s driver’s license is suspect, at best. Mr. [Delgadillo’s] newly discovered evidence is insufficient to warrant the granting of a new trial, although he testified that he knew that Mr. Bolin had possession of a 38 and 22 caliber handgun and that they also had snake shot cartridges. This does not eliminate the Defendant from having the same in as much as snake shots were found in his own trailer.
“I’ve already discussed the effect of the juror’s affidavit, if it would be admissible. Therefore, I find the Defendant’s motion is not supported by any newly discovered evidence to set aside the verdict and grant a new trial and find it is substantial, find that the evidence is substantial and sufficient evidence to support the verdict. Therefore, the Defendant’s motion for a new trial is denied.”
Analysis
Section 1181 lists the grounds on which a defendant may move for, and a trial court may grant, a new trial. Soojian’s motion was based on subdivision 8, which provides that a new trial may be granted
“When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.”
The factors to be considered by the trial court when ruling on a motion for a new trial based on newly discovered evidence were first set out in People v. Sutton (1887) 73 Cal. 243 (Sutton). “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; 5. That these facts be shown by the best evidence of which the case admits.’ [Citation.]” (Id. at pp. 247-248.) These standards have been reiterated on numerous occasions. (People v. Turner (1994) 8 Cal.4th 137, 212, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.; People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado); People v. Martinez (1984) 36 Cal.3d 816, 821.)
The standard of review we must apply also was established in Sutton. “‘Applications on this ground 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.’” (Sutton, supra, 73 Cal. at p. 248.) We must review each case on its own factual background and will not disturb the trial court’s ruling unless “‘“a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.]” (Delgado, supra, 5 Cal.4th at p. 328.)
Soojian argues that the trial court erred because it applied the incorrect legal standard when ruling on the motion. In the trial court’s ruling, quoted at length above, it twice referred to the issue as whether there was substantial evidence to support the jury’s verdict. The only law cited by the trial court at the hearing on Soojian’s motion was the case of People v. Lewis (2001) 26 Cal.4th 334, 364, which states, “On a motion for a new trial, a trial court must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict. [Citation.]” Indeed, the trial court’s ruling, in which it stated that substantial evidence supported the verdict, is a strong indication that the trial court applied the standard in Lewis. In Lewis, however, the defendant moved for a new trial on the ground that the evidence did not support the verdict (§ 1181, subd. (6)). Soojian moved for a new trial on the ground of newly discovered evidence. Accordingly, the trial court was required to review the motion using the standard found in Sutton.
The People argue that even though the trial court cited the wrong case, and referred to the issue as whether substantial evidence supported the verdict, we should conclude the trial court actually applied the correct standard. The People then point out that the trial court reviewed each piece of newly discovered evidence offered by Soojian and found it to be unconvincing.
We infer from this argument by the People that the only disputed issue in the trial court, and on appeal, is the third item of the Sutton test—whether the newly discovered evidence makes it probable that Soojian would obtain a different result on retrial. The People have not argued that Soojian did not meet the other four items of the Sutton test. This is not surprising. The unexpected testimony of Morgan and Crawford strongly suggests that it only was during trial that Soojian suspected that Bolin could be the actual perpetrator. The testimony of Oh that the vehicle could not be located without the license plate number and the testimony of Soojian’s father that he was unable to locate the license plate number indicate that the evidence could not have been discovered prior to trial. Nor can there be any suggestion that the new evidence is cumulative or that the proffered evidence was not the best evidence that could be offered. Accordingly, we agree with the People that it appears that the only issue is whether the new evidence renders a different result probable.
We disagree with the People that it is clear that the trial court understood the standard it should have applied in deciding the motion. If the issue was whether the verdict was supported by substantial evidence, there was no abuse of discretion by the trial court in denying the motion. There was adequate evidence to tie Soojian to the crime, particularly Joyce’s DNA in the cab of Soojian’s pickup, Joyce’s identification of Soojian as her attacker, and Joyce’s identification of Soojian’s pickup as the vehicle used in the attack.
The trial court, however, failed to apply item three correctly. It did not consider what effect any of the evidence that suggested that Soojian was not the perpetrator would have with the trier of fact. This evidence, if believed by a jury, strongly suggests that Bolin was the perpetrator. Therefore, if the trial court had used the correct legal standard when reviewing the motion, it might well have reached a different result.
CONCLUSION
We conclude that the trial court failed to apply the correct standards when reviewing Soojian’s motion for new trial. The failure to apply the correct standard when evaluating the motion resulted in the trial court abusing its discretion. (People v. Knoller (2007) 41 Cal.4th 139, 156.)
We conclude this case must be remanded to the trial court for further consideration of the motion, utilizing the correct standards as identified in this opinion. The trial court will then be able to exercise its discretion in the first instance.
DISPOSITION
The order denying Soojian’s motion for a new trial is vacated, and the matter is remanded to the trial court for reconsideration of the motion applying the correct factors. (Sutton, supra, 73 Cal. at pp. 247-248.)
Our conclusion that the order denying Soojian’s motion for a new trial must be vacated renders the remaining issues moot. Accordingly, Soojian’s request that we take judicial notice of various records also is moot, and the request is denied.
WE CONCUR: DAWSON, J.KANE, J.