Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF115840A. Michael G. Bush, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
A jury found appellant Avila guilty of the second degree murder of Wilton Wilson (Pen. Code, § 187, subd. (a)), the attempted murder of Wilson’s daughter and appellant’s ex-girlfriend Camellia Goulsby (§§ 664/187, subd. (a)), assault with a firearm on McKinley Womack (§ 245, subd. (a)(2)), unlawful possession of a firearm by a felon (§ 12021, subd. (a)(1)), and attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)). All three victims had been together in a parking lot just after an argument between appellant and Wilson. Appellant moved for a new trial on the ground of newly discovered evidence. (§ 1181, subd. (8).) His motion presented a declaration from one of the shooting victims, Womack, who had not testified at trial. Womack’s declaration stated in part: “At the time the shots were fired I was facing Jaime, the shot that hit me came from behind me, there is no way that Jaime Avila could have been the person who shot me.” Womack had testified, however, at appellant’s preliminary hearing. At the preliminary hearing, Womack testified that he never saw who was doing the shooting, that he is friends with appellant, and that his brother is the father of two of appellant’s half-siblings. Appellant’s motion for a new trial was denied. In denying the motion, the court stated “the real bottom line is I don’t think it would have made one bit of difference in this case even if Mr. Womack had testified.” With allegations of firearm use, infliction of great bodily injury, and a prior serious felony conviction also found true, appellant was sentenced to a term of 55 years to life, plus a determinate term of 52 years and four months.
All further statutory references are to the Penal Code unless otherwise stated.
On this appeal Avila contends that the court erred in denying his motion for a new trial. As we shall explain, we find no abuse of discretion in the denial of appellant’s motion for a new trial. We will affirm the judgment.
FACTS
The shooting incident took place on the night of July 28, 2006, in the parking lot of the Elk’s Lodge at the corner East California Avenue and Haley Street in Bakersfield. Two of the persons present, Goulsby and Ebony Miller, identified appellant as the shooter. Goulsby had been involved in a year-long romantic relationship with appellant, but it had ended about a week before the shooting. Goulsby testified that the relationship had ended “because [appellant] was abusive and he stole my rent money.” A criminalist, Mr. Greg Laskowski, examined 10 spent cartridge casings found at the scene and expressed the opinion that all 10 had been fired from the same firearm. No other expert offered any contrary opinion. The jury also heard testimony from police officers who had investigated the shooting. Detective Freddy Calvillo testified that in interviews of Goulsby he had conducted on July 29 and October 6, 2006, Goulsby had identified appellant as the shooter. Detective Herman Caldas testified that he interviewed Ebony Miller shortly after the shooting, and that Miller identified appellant as the shooter. After the shooting, appellant fled. He was apprehended on September 7, 2006, in Sacramento.
Perhaps the most incriminating evidence was recorded telephone conversations appellant had with Goulsby after the shooting. These recordings were played for the jury. When Goulsby asked appellant “What could I possibly do to, to just make you flash like that?” And what “made you shoot?” Appellant said “Cause I was angry and upset, Camielle.” Goulsby asked: “So angry and upset made you shoot? What the fuck is wrong with you? So you might get mad at me again and, and, and shoot? Right?” Appellant replied: “No, baby, no. I would never do nothing like that to you. And I -I didn’t mean that. I didn’t want that to go down, baby. I -I - That was - My plans or intentions to go down, man. I love you, man. I didn’t want that shit to go down like that, man.” Later on, appellant also said “I’m sorry, man. I did not want it to go down like that. I was - I was fucked up. I was thinking like, man - I was just - I was just mad, man.”
Appellant’s unsuccessful defense was that the prosecution could not prove beyond a reasonable doubt that appellant was the shooter, that maybe someone else who was present that night fired the shots, and that even if appellant did fire the shots, he did not intend to kill anyone. The defense called three witnesses, Monique Pirtle, Charles Nelson and Henry Cartwright.
Pirtle was appellant’s cousin. She used to do appellant’s mother’s hair. She testified that she was next to appellant when the shots were fired, that she and appellant dropped to the ground when she heard shots fired, that appellant did not have a gun while the shots were being fired, and that she did not see who was shooting. On cross-examination she admitted that she had told this story to no one until six days prior to her trial testimony, even though her cousin, appellant, had been in jail for more than a year on a murder charge.
Charles Nelson had been employed by the Bakersfield Police Department at the time of the shooting, and spoke to Ebony Miller on July 29, 2006. It is not clear why the defense called Nelson. He testified on direct examination that Miller told him the shots “just came from the front of her.” On cross-examination, Nelson testified that Miller told him appellant was the shooter and that appellant was “the only one” shooting. Nelson testified that Miller named appellant by his nickname, “L’il Pete,” and described appellant in detail.
Henry Cartwright had convictions for voluntary manslaughter and for selling cocaine base. He testified that he was “with Pete” (appellant) at the time of the shooting, that the gunshots sounded like they were being fired from more than one gun, and that he did not see who was doing the shooting. On cross-examination, Cartwright stated that he first talked to defense investigators two days before his trial testimony. Before that, he hadn’t given any statements to anyone since giving one to the police on July 29, 2006. Cartwright was impeached with the rebuttal testimony of Sergeant Dennis West, who testified that he conducted the recorded interview of Cartwright, and that Cartwright told him Cartwright was not sure who the shooter was but that the shooter “could have been” appellant.
The evidence presented by appellant on his motion for a new trial will be described in our discussion below of the court’s ruling on that motion.
DISCUSSION
Applicable Law
“When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. 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.…” (§ 1181.) “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not be cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328; see also People v. Sutton (1887) 73 Cal. 243, 247-248.) Particularly pertinent to this case is the third of these five factors. “‘[T]he trial court may consider the credibility as well as the materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.’ (People v. Beyea (1974) 38 Cal.App.3d 176, 202 [113 Cal.Rptr. 254].)” (People v. Delgado, supra, 5 Cal.4th at p. 329.) “It was not improper for the trial court to deny defendant’s motion if it believed [the affiant’s] proffered affidavit lacked credibility and would not have changed the result on retrial.” (People v. Cole (1979) 94 Cal.App.3d 854, 860, disapproved on another ground in In re Kelly (1983) 33 Cal.3d 267, 277.) “The weight and credibility to be attached to the affidavit and testimony in support of defendant’s motion was for the trial judge....” (People v. Hill (1969) 70 Cal.2d 678, 699.) “‘“[I]n determining whether there has been a proper exercise of discretion on such a motion, each case must be judged from its own factual background.”’” (People v. Delgado, supra, 5 Cal.4th at p. 328; People v. Dyer (1988) 45 Cal.3d 26, 52.) “‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’” (People v. Williams (1988) 45 Cal.3d 1268, 1318; People v. Delgado, supra, 5 Cal.3d at p. 328.) “A motion for a new trial on newly discovered evidence is looked upon with disfavor, and unless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.” (People v. McDaniel (1976) 16 Cal.3d 156, 179.)
B. Evidence Presented on the Motion
McKinley Womack gave two recorded statements to the police during the investigation, and then testified at appellant’s preliminary hearing. In the first statement, he told police that he drove to the Elk’s Lodge by himself, walked into the parking lot, heard gunshots, ran, and was hit by the gunfire. When he was asked if he knew what type of gun was being used, he said “[i]t sounded like an automatic” and “[i]t was just, just constant, you know.” When he was asked if it sounded like a handgun or a rifle, he said “[i]t was more like a handgun.” He also told police “I don’t know who else was shot or nothing.” Toward the end of the statement, the detective told Womack “I’m gonna leave you my card here, and, uh, if there’s any other information or anything that you can, uh, help with me [sic] and figure out how you got shot... I appreciate if you give me a phone call, okay?” Womack replied “All right.”
A few days later, after officers had spoken to other witnesses, they spoke again with Womack. This time Womack stated that he had not gone to the Elk’s Club alone, and that Camellia Goulsby and a female named Chastity were with him when he drove to the Elk’s Club. Appellant came up to the car and “probably yelled at” Camellia, “but he didn’t say nothing to me.” Womack told the officer, about appellant, “my brother got kids by his mother so I know him, yes, I know him.” When the questioning officer told Womack the officer thought Womack knew who had shot him, Womack said “I don’t know who shot me” and “I didn’t see nobody shoot nothin’”
At appellant’s preliminary hearing Womack testified that he was shot in the back while he was in the Elk’s Lodge parking lot, that he did not know who shot him, and that he then spent about eight hours at the hospital where he was treated. He also testified that he is friends with appellant and that his (Womack’s) “brother had two kid’s by [appellant’s] mother.” Appellant’s defense counsel attempted to elicit information from Womack about the incident. Womack testified that he saw appellant in the lot that night, but he never saw any argument between appellant and Wilton Wilson, and never attempted to pull or assist in pulling appellant and Wilson apart from each other. He testified that he heard a gunshot, started to run, and got shot. He said that Wilton Wilson and Camellia Goulsby were 10 to 20 feet away from him when he was shot.
Womack was not called as a witness at the trial by either side. His status as a shooting victim was established by testimony from other witnesses and by the medical records of his treatment. As the prosecutor later explained at the hearing on appellant’s motion for a new trial, “I did not want to put [Womack] on as a witness because of his multiple versions that he gave to the detectives.”
Appellant’s motion for a new trial presented the following declaration from Womack:
Appellant’s motion for a new trial also presented records from the ambulance service that transported Womack to the hospital, and a declaration from a defense investigator chronicling his unsuccessful attempts to contact Womack prior to trial. Appellant raises no contention on this appeal that the court erred in concluding that the ambulance service records were not “new evidence” (§ 1181) or that anything in them would bolster appellant’s contention that there was more than one shooter. Although the parties present arguments as to whether the defense did or did not exercise “reasonable diligence” in attempting to locate Womack, the court did not base its denial of appellant’s new trial motion on any lack of diligence on the part of appellant in discovering and producing Womack’s new story. As we explain, even if we assume that the defense could not with reasonable diligence have discovered and produced Womack’s testimony at trial, the trial court concluded that Womack’s testimony was not “such as to render a different result probable on a retrial of the cause” (People v. Delgado, supra, 5 Cal.4th at p. 328), or, in the trial court’s words, “I don’t think it would have made one bit of difference in this case even if Mr. Womack had testified.”
“I McKinley Womack do hereby declare:
“1. I was present at the Elks Club on East California Avenue on the evening and early morning hours of July 28-29, 2006, and was the victim of a shooting in the parking lot. I arrived at the Elks Club at just before mid-night, [sic] I was driving my 2002 silver Chevrolet Impala. Camelia Goulsby and Chasedy were passengers in my car. As I was parking my car, next to the fence of the Elks Club on the southern end of the parking lot facing California Avenue, Camelia jumped out of [the] car before it came to a complete stop and approached a large crowd in the parking lot of the Elks Club. I saw Wilton Wilson and Jaime Avila arguing in the parking lot. Jaime was standing behind my car and towards the west side of the parking lot, Wilton Wilson was standing next to the driver’s side of his truck which was further to the north and slightly further west of where Jaime Avila was standing.
“2. I walked over towards Wilton Wilson, and was standing near the driver’s side of Wilton’s truck towards the rear of the truck. Other people were trying to get Wilton to calm down. At about the time this happened I heard a gunshot coming from behind me, from the north side of the parking lot towards the church. I dropped down and ran around the back of Wilton Wilson’s truck, trying to hide on the passenger side of the truck. As I was going around the back of Wilton’s truck another shot was fired from the same area and I was hit by a gunshot to my back and I fell to the ground. As I was lying on the ground I heard several additional gun shots being fired, this second round of shots sounded as if they were from a much larger caliber gun. The first two shots I heard sounded like firecrackers going off, while the second five or six rounds sounded as if they were coming from the front of Wilton’s truck and were quite a bit louder.
“3. As I lay on the ground, people were running all around and leaving the parking lot. Eventually, I saw Wilton’s truck drive away, leaving me behind. Mr. Avila’s cousin Monique and another girl by the name of Glow stayed with me until help arrived. I did not know that Wilton Wilson had been shot until I was told later at the hospital. While I was being taken to the hospital the ambulance person told me I had been shot in the back and that it appeared to be a smaller caliber round. I remember the doctors at Kern Medical Center telling me that it was probably a twenty-two (.22) or twenty-five (25) caliber round that hit me. The bullet entered in back and out of my buttocks, and no bullet was ever recovered. I was at Kern Medical Center for approximately ten (10) hours and then was released to go home.
“4. I was interviewed on the night of the shooting by the police and again approximately two to three weeks later by the same detectives. I told the detectives that there were two different shooters because I could hear the shots coming from different locations, and because the sound of the shots did not sound the same. The police did not believe me that there was more than one shooter that night, and believed I was lying. I didn’t feel that there was any reason to talk to the police any more since they did not believe my version of the events of that night. That was the last time I talked to police about the matter.
“5. I did testify at the preliminary hearing but was not able to tell about everything that had happened on that night, specifically that I believed there were two shooters and two different guns. I received a subpoena for the trial from the District Attorney, but I was never called to testify. Once the trial started I was told by the District Attorney that the matter was being trailed, and then was told by the District Attorney that I would not be needed to testify.
“6. I work for an oilfield company and at the time of the shooting I was working in the Taft area. At the time of the trial I was working in Los Angeles and did not hear about the outcome of the trial until after it was over. I could not believe that Jaime Avila was convicted of having shot me, because that would be impossible. At the time the shots were fired I was facing Jaime, the shot that hit me came from behind me, there is no way that Jaime Avila could have been the person who shot me. I cannot stand the thought of Jaime Avila being convicted for shooting me, when I know that did not happen. That is the reason for me providing this statement at this time.”
C. The Trial Court’s Ruling
In denying the motion for a new trial, the court stated:
“I have considered the motions and the arguments and, of course, I heard the trial. It does not appear to me that there is good cause to grant a new trial. First of all or mainly, Mr. Womack’s testimony or latest statement is different than what he said before. I’m not sure what he would actually testify to. And if he did testify consistent with the statement provided by the public defender investigator, he certainly would be impeached. There is other evidence – the Hall’s Ambulance records, the doctor from KMC. All that evidence was available. It’s not newly discovered evidence. It could have been presented at the trial. And the real bottom line is I don’t think it would have made one bit of difference in this case even if Mr. Womack had testified. So the motion for – even if the other evidence had been presented, it wouldn’t have made any difference. The motion for new trial is denied.”
D. There Was No Abuse of Discretion
We can find no abuse of discretion in the court’s denial of appellant’s motion for a new trial. Womack’s declaration would appear to any reasonable person to be entirely lacking in credibility, and the court cannot be said to have abused its discretion in so concluding. In not one but two recorded statements given to police, and in which the police questioner was in essence pleading with Womack to provide any pertinent information Womack had, Womack made no mention of any purported multiple shooters. The statements made by Womack in paragraph “4” of his declaration, in which he says he “told the detectives that there were two different shooters because I could hear the shots coming from different locations, and because the sound of the shots did not sound the same,” are belied by the transcripts of the two recorded statements themselves. The only argument appellant presents on appeal to attempt to explain this discrepancy is “[a]lthough the transcripts of [Womack’s] police interviews do not reflect that he told the police that he thought there were two different shooters, that part of his statement might not have been recorded.” In fact, however, the first statement appellant gave included the following questions and answers:
“Calvillo: Do you know what type of, uh, gun was being used? Did you see what it looked like?
“Womack: It sounded like an automatic. It was just, just constant, you know.
“Calvillo: Did it sound like a, uh, handgun or sound like a rifle?
“Womack: It was more like a handgun.
“Calvillo: Handgun?
“Womack: Yeah.
Womack’s declaration also lacks credibility because of its failure to provide any plausible explanation for why Womack would withhold from his friend’s (appellant’s) attorney any information Womack might have had that would show it would “be impossible” for appellant to have shot Womack. Womack knew appellant was accused of being the shooter and was charged with crimes resulting from Womack and Wilson having been shot. Womack had testified at the preliminary hearing on the charges against appellant. He could have spoken to appellant’s defense counsel that day. There was also undisputed evidence that Womack had come to court on two other occasions for readiness hearings in the case. The trial court did not, however, deny the new trial motion on the basis of any determination that appellant could have “with reasonable diligence... discovered and produced” Womack’s testimony at trial. (§ 1181, subd. (8).) Even if we assume that the defense could not with reasonable diligence have discovered and produced the evidence at trial, the trial court expressly stated “the real bottom line is I don’t think it would have made one bit of difference in this case even if Womack had testified.” The court clearly denied the motion on the basis that the evidence in the Womack declaration was not “such as to render a different result probable on retrial of the cause” (People v. Delgado, supra, 5 Cal.4th at p. 328), and clearly reached this conclusion on the basis of the apparent lack of credibility of the Womack declaration. (Id. at p. 329; People v. Cole, supra, 94 Cal.App.3d at p. 860; People v. Beyea, supra, 38 Cal.App.3d at p. 202.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, J., Gomes, J.