Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB703117. Bryan Foster, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All further statutory references are to the Penal Code unless otherwise indicated.
During five days in August 2007, defendant Antonio Rey Carabajal engaged in a course of criminal conduct against his former girlfriend, her children, and her mother. A jury convicted him of 17 criminal offenses, including kidnapping (§ 207, subd. (a)), injury against a fellow parent (§ 273.5, subd. (a)), child abuse (§ 273a, subd. (a)), making criminal threats (§ 422), dissuading a witness (§ 136.1, subd. (b)(1)), stalking (§ 646.9, subd. (a)), and assault likely to cause great bodily injury (§ 245, subd. (a)(2)), most involving personal use of a firearm (§§ 12022.53, subd. (b) and 12022.5, subds. (a) and (d).) The court sentenced defendant to a total prison term of 28 years.
On appeal, defendant argues the trial court should have granted a new trial to allow newly-discovered evidence that would have impeached the credibility of the principal victim, Jane Doe, as a prosecution witness and exculpated defendant. Defendant also contends it was error not to give a unanimity instruction on count 17 for assault with a firearm. He urges the case be remanded for resentencing because the court erred in its oral pronouncement on four counts. We reject defendant’s contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
There are four victims of the 17 offenses, Jane Doe (counts 1, 2, 5, 6, 8, 9, 12, 13, 14, and 17), Baby Doe (counts 3, 4, 11, and 16), Minor Doe (counts 10 and 15), and Jane Doe’s mother (count 7). Jane Doe testified reluctantly because she married defendant shortly before trial.
In August 2007, Jane Doe was pregnant with defendant’s child. Between August 2 and 7, 2007, defendant left many profane, angry, and threatening messages on Jane Doe’s voicemail. An example of defendant’s heated rhetoric is: “You fuckin bitch you and your fuckin rat-ass mom need to call the DA or do something so I can get some kind of charges done..., fuckin, I don’t fuckin know, that’s why they bitching me to get the fuckin charges out whatever kind they are [alright]? Fuckin bitch.”
A. August 2 and 3, 2007
On August 2, 2007, Jane Doe was in a parking lot with Baby Doe, who was about 10 months old. Defendant entered Jane Doe’s vehicle and, while she drove, he hit her multiple times in the face with a closed fist. He also kicked her and cursed. Defendant was angry because a man had called his cell phone asking for Jane Doe. The attack continued for about 15 minutes. After Jane Doe called the police the next day, the police photographed the bruises on her face and leg. She told the police defendant was carrying a handgun during the incident.
B. August 4, 2007
On August 4, defendant called Jane Doe at home. Because she had called the police, he warned “he was going to come over to my house and kill me” and her mother. Both Jane Doe and her mother were fearful and believed defendant capable of acting on his threat. They began packing to leave town and reported the threat to the police, who initiated an emergency protective order.
C. August 7, 2007
On the morning of August 7, 2007, Jane Doe obtained a restraining order against defendant. When she returned home with Baby Doe and Minor Doe, defendant was there waiting for Jane Doe and got in the passenger seat of her car. While Jane Doe drove around for three or four hours to various locations, he struck her again many times on the face and head. Defendant was carrying a handgun. He pointed it at her, hit her on the head, and told her he was going to kill her.
At one point they struggled over who would drive the car and Jane Doe called 911 on her cell phone. In a recording of the fight, defendant screamed at Jane Doe and Jane Doe repeated her fear that “I’ll die!! I’ll die!! I’ll die!!”
Jane Doe continued to drive. After leaving Jane Doe’s car at her mother’s workplace, they obtained a ride to the apartment of defendant’s friend, Lorenzo. In the apartment bedroom, defendant continued to hit Jane Doe, as well as pulling her hair and punching her in the head. Jane Doe managed to call her sister and whisper for her to call the police.
When defendant learned the police were coming, he left the apartment. When the police arrived, Jane Doe was drifting in and out of consciousness. Her injuries were photographed at the hospital. Her face, arms, and legs were bruised. Her head displayed bumps and swelling. As Jane Doe was trying to crawl away from defendant, he punched her in the back, causing another bruise.
D. Defense Evidence
Defendant has four previous felony convictions. In the course of his testimony, he admitted most of the allegations made against him in the present case.
Defendant testified that Jane Doe had picked him up on August 2, 2007, after he called her. They were engaged to marry but were having difficulties. While they were in the car, another man telephoned and defendant slugged Jane Doe. He hit her three times while driving around but he denied having a gun.
Defendant admitted leaving “stupid” phone messages on her voicemail. He asked her to call the office of the district attorney to deny that she had been kidnapped.
On August 7, 2007, Jane Doe picked him up at a friend’s house with her children in the car. As they drove around aimlessly for several hours, defendant hit her with his hands and fists and pulled her hair because he wanted information about the other man. Once they stopped and he borrowed a friend’s gun to scare her. He wanted her to know he was serious about his threat to kill the other man. He did not point a gun at Jane Doe or threaten to kill her. He returned the gun to the friend after five minutes.
Defendant admitted hitting Jane Doe again while they were in Lorenzo’s apartment bedroom. He denied that Jane Doe called her sister from the apartment. After defendant left the apartment to buy some methamphetamine, a friend warned him not to go back.
Defendant’s father testified that, when Jane Doe told him about the August 7, 2007, incident, she never mentioned the gun.
III
NEW TRIAL MOTION
Some months after the trial concluded, Jane Doe wrote a letter, explaining that she had been pressured and coerced by the prosecutors into testifying against defendant, particularly regarding the charges for kidnapping, child abuse, and use of a firearm. She claimed she went in defendant’s company voluntarily but the prosecutor threatened that she might lose custody of her children if she did not cooperate.
Defendant’s motion for new trial was based on prosecutorial misconduct, somewhat erroneously mischaracterized as a violation of Brady v. Maryland (1963) 373 U.S. 83. The trial court denied the motion. On appeal, defendant particularly argues the trial court erred by not allowing Jane Doe to testify at the hearing about her letter, the threats she received, and her trial testimony. The record in the present case does not establish the trial court abused its discretion.
In ruling on a motion for a new trial based on newly discovered evidence, the trial court considers the following factors: (1) that the evidence, and not its materiality, be newly discovered; (2) that the evidence not be cumulative; (3) that a different result would be probable on a retrial of the cause; (4) that the party could not with reasonable diligence have discovered and produced it at trial; and (5) that these facts be shown by the best evidence of which the case admits. (People v. Beeler (1995) 9 Cal.4th 953, 1004; People v. Delgado (1993) 5 Cal.4th 312, 328; People v. Dyer (1988) 45 Cal.3d 26; People v. Martinez (1984) 36 Cal.3d 816, 821.)
In ruling on a motion for a new trial made on the ground that a witness has recanted her testimony, the trial court determines whether the new evidence is credible “after a consideration of all the facts pertinent to the particular issue. The court is not the final arbiter of the truth or falsity of the new evidence. [¶] [O]nce the trial court has found the recantation to be believable, it must then decide whether consideration of the recantation [by the jury] would render a different result on retrial reasonably probable.” (People v. Minnick (1989) 214 Cal.App.3d 1478, 1482.)
We note that defendant improperly cites People v. McSherry (1992) 11 Cal.App.4th 1157 [1993 Cal. LEXIS 1539], review denied and ordered not to be officially published, March 18, 1993, S030923.
In the present case, the court observed that Jane Doe had been extremely equivocal in her testimony and refused to offer a version of events favorable to the prosecution. The court said further that her testimony was not necessary: “It appears to [] me that the issue in this case is whether or not-even if the district attorney’s actions were pressuring her in some fashion-unless the effect of that showed in the trial-but as far as I can see her testimony in the trial-I think Mr. Dixon [the prosecutor] is correct in that her testimony was not exactly as the prosecution would have liked it. In fact most of the things she testified to were things that were essentially, you know, uncontested facts as far as where they went, how they were in the car, those type of things. [¶]... [¶]... But there’s no indication there was any pressure put on her at the time the initial investigating officers were investigating it. That had to do with what happened afterwards in preparation for the trial.” The court then denied the motion, finding no prosecutorial misconduct and no “prejudice to the defendant given the testimony of the witness at the time of the trial.”
In considering the relevant factors, we do not perceive an abuse of discretion. In her two statements to the police, Jane Doe initially described defendant’s violent behavior, including gun use, on August 3 and 7, 2007. Jane Doe told one prosecutor she was afraid of defendant and she declined to make a victim’s statement at sentencing. Two prosecutors denied having pressured or threatened Jane Doe about her testimony. The evidence about Jane Doe’s change of heart was not “newly discovered” as it was already demonstrated by her extreme reluctance to testify fully and consistently at trial. To the extent that Jane Doe’s letter may be construed as a recantation of her prior statements, the trial court could clearly find it not credible. Furthermore, after Jane Doe had made every effort at trial to minimize defendant’s offenses, it was not probable a different outcome would have resulted on retrial.
IV
UNANIMITY INSTRUCTION
The basis for defendant’s conviction for count 17, assault with a firearm, was Jane Doe’s testimony that, while they drove around on August 7, 2007, defendant pointed a gun at her, while threatening to kill her, and struck her with it. Defendant contends the prosecution did not make an election between the two separate acts of pointing the gun and hitting with the gun. Therefore, the court erred by not giving a unanimity instruction, CALCRIM No. 3500.
In a criminal case, “the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) 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.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The requirement for unanimity, however, gives way when “criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct.” (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) The unanimity instruction was not required on count 17 because pointing the gun and hitting with the gun were part of a single, ongoing attack on Jane Doe, akin to repeated slashing over a short period of time while using the same knife. (People v. Jefferson (1954) 123 Cal.App.2d 219, 220-221; People v. Harris (1994) 9 Cal.4th 407, 431, fn. 14; People v. Robbins (1989) 209 Cal.App.3d 261, 266.)
V
SENTENCING
As the parties agree, the abstract of judgment correctly states the sentences for counts 8, 15, and 16 and the firearm enhancement for count 13. But, in each instance, the court miscalculated one-third of the middle term. The correct sentence on count 8 (§ 136.1, subd. (b)(1)) was one year and the court imposed eight months. The correct sentence on counts 15 and 16 (§ 273a, subd. (a)) was one year four months and the court imposed one year eight months. The correct sentence on the enhancement (§ 12022.5, subds. (a) and (d)) was one year four months and the court imposed one year eight months. Altogether, the court imposed six months more than authorized but that error was cured in the abstract of judgment.
Nevertheless, defendant argues the case must be remanded for resentencing to allow the trial court to exercise its discretion. We disagree. The trial court clearly expressed its intention to base its sentence on the designated middle terms. It made minor miscalculations but the abstract of judgment corrects those figures in favor of defendant, reducing the total proposed sentence by six months. There is nothing to correct, either below or on appeal: “We realize the general rule is that the oral pronouncements of the court are presumed correct. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Nonetheless, under these circumstances, we will deem the minute order and the abstract of judgment to prevail over the reporter’s transcript. (People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Smith (1983) 33 Cal.3d 596, 599.)” (People v. Thompson (2009) 180 Cal.App.4th 974, 978.) There is no need or occasion for the trial court to exercise its discretion as in People v. Burbine (2003) 106 Cal.App.4th 1250, 1258. Any error by the trial court was indisputably harmless.
VI
DISPOSITION
We affirm the judgment in full.
We concur: Ramirez P. J., Richli J.