Opinion
A146342
06-01-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC082229A)
A jury convicted Anthony Davis of several felonies, including inflicting corporal injury on a woman with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)) and criminal threats (§ 422). The trial court found Davis's prior convictions true, denied his new trial motion, and sentenced him to state prison.
All undesignated statutory references are to the Penal Code.
Davis appeals. He claims the court erred by: (1) instructing the jury on flight after crime (CALCRIM No. 372); (2) eliminating a factor from the jury instruction on evaluating witness credibility (CALCRIM No. 226); (3) failing to adequately inquire "whether he wished to be present" on the first day of trial testimony; and (4) denying his new trial motion. Davis also argues cumulative errors require reversal.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We provide an overview of the facts here, and additional factual and procedural details in the discussion of Davis's specific claims.
In September 2014, J.B. lived in an apartment with her children, including her 11-year-old daughter, A.B. J.B. was dating Davis, and he sometimes spent the night at her apartment.
Charges
The operative information charged Davis with seven crimes arising out of an incident on September 11, 2014: inflicting corporal injury on J.B. (§ 273.5, subd. (a) (Count 1)); assault with a deadly weapon on J.B (§ 245, subd. (a)(1) (Count 2)); criminal threats against J.B. (§ 422 (Count 3)); criminal threats against A.B. (§ 422 (Count 4)); dissuading or preventing J.B. from making a report (§ 136.1, subd. (b)(1) (Count 5)); endangering a child (§ 273a, subd. (b) (Count 6)); and dissuading or preventing A.B. from making a report (§ 136.1, subd. (b)(1) (Count 9)).
The operative information also charged Davis with two crimes arising out of incidents in early September 2014: inflicting corporal injury on J.B. (§ 273.5, subd. (a) (Counts 7 and 8)). The information alleged Davis had 10 prior convictions. J.B.'s Trial Testimony
In September 2014, J.B. and Davis had been dating for about five years. Tension was common in their relationship. In early September, 2014, Davis punched J.B. several times, bruising her abdomen. Davis also slapped J.B.'s face. Shortly thereafter, Davis and J.B. had a physical altercation about a rental car.
A. September 11, 2014
On the evening of September 11, Davis came to J.B.'s apartment as she made dinner. That day, there "was a raise in tension" between J.B. and Davis because he had loaned J.B. money and wanted to be repaid. J.B., however, thought the money was a gift. She and Davis argued about money "for a minute" but then Davis "kind of just dropped it" and sat down to eat.
When J.B. asked Davis about a mark on his arm, he got "really, really mad." He got up "and punched [J.B.] in the side of the head" with his fist. J.B. — who had been standing by the stove — fell back against the sink "pretty hard." A.B. screamed at Davis to stop. In response, Davis told A.B. to go to her room; A.B. ran to her room and locked the door. J.B. was "very, very afraid," because her "daughter was present," and J.B. "didn't know what he would maybe do to her because he's so angry." Davis had previously hit J.B. when he was angry, and J.B. knew Davis had battered his sister in 2010.
The parties stipulated Davis was convicted of misdemeanor vandalism of J.B.'s apartment in 2004, and of battering his sister in 2010. The parties also stipulated Davis was convicted of domestic violence on J.B. and assault with force likely to cause great bodily injury in 2012.
J.B. and Davis argued about suspected infidelity and Davis "got even angrier." He grabbed J.B.'s arms, kicked her thigh "really hard . . . and [she] fell." Davis closed the blinds in the apartment. A.B. came out of her room, and J.B, "quickly got up." Several times, Davis told J.B. he would kill her if she called the police. J.B. was afraid: she did not "want to die" and she did not want "anything to happen to [her] daughter." J.B. screamed at Davis to "stop, just leave." Davis told J.B. and her daughter to keep their voices down because "the police would come. So he wouldn't go to jail." The police had been at the apartment on at least two previous occasions, and Davis had an ongoing concern about the police coming to the apartment.
A.B. told Davis to " 'leave [her] mom alone.' " She retrieved a baseball bat from her room and started "banging on the wall of her room to . . . scare [Davis] off." In response, Davis told A.B. to return to her room. Davis ran to the kitchen, grabbed a big kitchen knife, and pointed it at J.B., "[r]ight in front of [her] face." Davis waved the knife around and yelled, " 'If you guys don't shut up . . . I'm going to kill both of you . . . if the police come.' " A.B. screamed " 'I don't want to die young.' " She kicked out the window screen and J.B. told her to jump out of the window. A.B. put her foot out the window, but did not jump.
Davis kicked and punched J.B. and she fell to the floor. While she was on the floor, Davis grabbed her hair and punched her head. J.B.'s nose began bleeding, and blood was "everywhere." Crying, J.B. asked Davis, " 'Why are you doing this? Why? Why does it have to be like this? Just leave.' " Davis did not respond. J.B. told her daughter to call 911 and she did. Davis said " 'I'm leaving' and then just ran out the door." J.B. locked the door so Davis "wouldn't come in." Law enforcement and emergency personnel arrived; paramedics treated J.B. for her injuries.
Davis may not have heard J.B. tell her daughter to call the police.
Several days later, Davis returned to J.B.'s apartment. J.B. had changed the locks, so Davis tried to enter through the window. J.B. slammed the window shut and called the police.
B. Prior Incidents
In 2010, J.B. lied to Davis and told him she was pregnant with his twins; she thought that if she said she "was pregnant, he wouldn't hit [her]." J.B. told Davis a similar lie in 2011, because she was "fearful of him."
In 2012, Davis physically assaulted J.B. during an argument — he punched J.B. in the head, and choked her. Davis stopped when the police arrived. J.B. gave a statement to the police, but she refused to give any details about the incident at Davis's preliminary hearing and testified Davis had never punched her. J.B. did not want to testify against Davis because she was scared of him, and because she hoped "things would get better." In 2014, Davis kicked in a door at J.B.'s apartment while arguing with her. J.B., however, declined to testify in the criminal proceeding against Davis because she was scared of him and she thought "it would get better" if she did not testify. She did not want Davis to go to jail because she loved him.
Other Trial Testimony
A.B. testified she was at the apartment on September 11, 2014. Initially, things were calm, but Davis and J.B. began arguing and Davis punched J.B. A.B. saw Davis strike her mother in the face and saw blood on J.B.'s nose and mouth. A.B. banged a baseball bat against the wall to make noise, hoping someone would help; she also thought about leaving the apartment through the window, so she removed the screen and sat on the window sill. A.B. changed her mind, and opened her door to check on her mother. She saw Davis kick her mother in both legs, causing her to fall.
A.B. heard Davis tell J.B. that if she called 911, he would kill her. As Davis said "I'll kill you," he was pointing with two fingers at A.B. and her mother, and A.B. felt he was speaking to both of them. Davis also pointed a kitchen knife as he threatened them. A.B. cried and said she was too young to die. At the time, J.B. had a phone in her hand. Davis took the phone and put it down, but the phone received an incoming call because J.B. had called 911. Davis got his jacket and left the apartment.
After the incident, J.B.'s "eye was swollen. She had bruises and scratches." The police arrived after Davis left. A neighbor testified she often heard arguments coming from J.B.'s apartment. On September 11, 2014, the neighbor heard A.B. screaming "really, really, really loud." Verdict, New Trial Motion, and Sentence
The jury convicted Davis of five crimes arising out of the September 11, 2014 incident: inflicting corporal injury on J.B. (§ 273.5, subd. (a) (Count 1)); criminal threats against J.B. (§ 422 (Count 3)); criminal threats against A.B. (§ 422 (Count 4)); dissuading or preventing J.B. from making a report (§ 136.1, subd. (b)(1) (Count 5)); and endangering a child (§ 273a, subd. (b) (Count 6)). The jury could not reach a verdict on the remaining counts and the court declared a mistrial.
Davis moved for a new trial based on newly discovered evidence. The court held an evidentiary hearing and denied the motion. In August 2015, the court sentenced Davis to 25 years and four months in state prison.
DISCUSSION
I.
The Court Did Not Err in Instructing the Jury with CALCRIM No. 372,
and Any Assumed Error Is Harmless
At the prosecution's request — and without an objection from Davis — the court instructed the jury with CALCRIM No. 372, which provides: "If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." During closing argument, the prosecutor told the jury "[t]he fact that [Davis] did leave the scene is something that you may consider as evidence of his guilt." The prosecutor also explained, "on the issue of flight, you should realize that [it] isn't simply the fact that he left the apartment on the 11th; it's the fact that he . . . didn't want the police called. He knew the police may very well be called because he's the one who brought up the subject . . . [¶] . . . So he was fleeing because he was concerned about being caught."
On appeal, Davis claims "there was no factual basis" for the flight instruction. We review the instructional error claim de novo. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) A flight instruction is generally proper " ' "where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." ' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328 (Bonilla).)
Here, the circumstances of Davis's departure from the apartment on September 11, 2014 "provided sufficient evidence of flight to warrant the flight instruction." (People v. Cage (2015) 62 Cal.4th 256, 285; Bonilla, supra, 41 Cal.4th at p. 329.) Davis had been arrested on previous occasions when he physically assaulted J.B. On September 11, 2014, Davis told J.B. and her daughter to keep their voices down because he was concerned the police would come to the apartment. He also threatened to kill them if the police arrived: he waived a knife in the air and yelled " 'If you guys don't shut up . . . I'm going to kill both of you . . . if the police come.' " As A.B. called the police, Davis left the apartment, and he was gone before emergency personnel arrived. These circumstances "could have given rise to an inference of consciousness of guilt." (Bonilla, at p. 329.) The jury could have attributed an innocent explanation to Davis's conduct — that he left the apartment at J.B.'s request — but it could have inferred his "departure and the circumstances thereof were consistent with and supported the prosecution's theory" that he left the apartment because he did not want the police to apprehend him. (Ibid.) We conclude sufficient evidence supported giving the flight instruction. (People v. Cage, supra, 62 Cal.4th at p. 285.)
Even if the court erred by instructing the jury with CALCRIM No. 372, Davis cannot demonstrate prejudice because it is not reasonably probable he would have obtained a more favorable result had the instruction not been given. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Clem (1980) 104 Cal.App.3d 337, 344-345.) The evidence supporting the convictions was overwhelming — J.B. had physical injuries from the domestic violence Davis inflicted on September 11, 2014, and A.B. witnessed that incident and corroborated her mother's version of the events. Moreover, the "instruction did not posit the existence of flight; both the existence and significance of flight were left to the jury." (People v. Crandell (1988) 46 Cal.3d 833, 870 [error in giving flight instruction was "manifestly harmless"], overruled on another point in People v. Crayton (2002) 28 Cal.4th 346.) Finally, the court instructed the jury to determine for itself what the facts were and to disregard inapplicable jury instructions. (CALCRIM No. 200.) We presume the jury followed the instruction. (People v. Mendoza (2007) 42 Cal.4th 686, 699.)
II.
Any Error in Omitting One Factor from CALCRIM No. 226
Was Not Prejudicial
The court instructed the jury with CALCRIM No. 226, on evaluating witness credibility. The court instructed the jury: "In evaluating a witness's testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . . [¶] Did the witness make a statement in the past that is consistent or inconsistent with the witness's testimony? . . . [¶] Did the witness admit to being untruthful? [¶] Has the witness engaged in other conduct that would reflect on the witness's believability? . . . [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. . . . [¶] . . . If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things but told the truth about others, you may simply accept the part you think is true and ignore the rest."
One factor in CALCRIM No. 226 is "What is the witness's character for truthfulness?" (CALCRIM No. 226 (Fall 2014 ed.) p. 71.) The court did not read that factor when instructing the jury, but the written instruction provided to the jury contained the "truthfulness" factor. After the court finished instructing the jury, defense counsel objected "to the way that CALCRIM [No.] 226 was read" and noted the court had, in an off-the-record discussion, declined to include "character for truthfulness" factor.
On appeal, Davis contends the court prejudicially erred in refusing to include the "character for truthfulness" factor when orally instructing the jury. The court has a sua sponte duty to instruct on factors relevant to a witness's credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884.) At trial, J.B. admitted lying to Davis about two pregnancies, and to committing perjury at a preliminary hearing. The court's oral instruction directed the jury to evaluate J.B.s' credibility by considering these factors: whether she had lied in the past, whether she admitted to being untruthful, and whether she had engaged in conduct reflecting on her believability.
That the court omitted one factor when orally instructing the jury with CALCRIM No. 226 does not demonstrate prejudicial error. (People v. Anderson (2001) 25 Cal.4th 543, 583 [no prejudicial error in omitting reference to witness's character for truthfulness, in part because the jury instruction included factors relating "to the credibility of the testimony"]; People v. Felix (1993) 14 Cal.App.4th 997, 1009 [error in omitting two factors from instruction on evaluating eyewitness identification was not prejudicial].) "It is not reasonably probable the absence of [the character for truthfulness factor] from the instruction influenced the verdicts" (id.), particularly where the jury received the written instruction enumerating all the factors. (People v. Osband (1996) 13 Cal.4th 622, 686-687 [misstatements in oral jury instructions were harmless].)
III.
The Court Did Not Violate Davis's Right to Be Present at Trial
Davis claims the court violated his right to be present at trial by failing to "personally question him" whether he wanted to attend the first day of trial testimony.
A. Background
Davis addressed the court during jury selection in December 2014, and the court admonished him to speak to the court through his attorney. Davis responded: "I just want to let you know. I don't feel comfortable. And I want to file a Marsden motion. I don't feel like he's doing a good job. . . ." The court stopped the proceedings, surveyed the jurors, and determined approximately 75 percent heard Davis's comments. The parties requested the court excuse the jury, and the court agreed.
The court admonished Davis: "Mr. Davis, I'm going to issue one warning. [¶] When your trial begins again . . . if you have any similar outburst, that means if you attempt to speak to me, no matter what you try to say, that will be contempt of court, number one. [¶] Number two, I will exclude you from any further proceedings. So that I can get a jury without worrying about it being prejudiced either for you or against you. [¶] . . . [¶] If you speak out, even once, then you'll be excluded. And your attorney will proceed without you. [¶] It's solely because of your outburst that we have to begin picking another jury. [¶] We won't let that happen again. [¶] If it happens to happen again, that means you will have spoken; and then you will not be present for any of the further proceedings with respect to the jury; understand?" Davis responded that he understood.
Counsel for Davis filed a motion to dismiss based on "unlawful delay in [Davis's] arraignment." At a December 30, 2014 hearing, the court denied the motion, prompting Davis to request a "different judge, because I don't think that you are being fair." The court asked Davis not to interrupt, but Davis ignored the request. The court told Davis, "if you continue your outbursts I am going to exclude you from the courtroom. . . . I am empowered to [exclude you] anytime you refuse to conduct yourself in a proper fashion." Davis responded: "You know what, you can exclude me from the courtroom, I am not getting justice here. You are an unfair judge, and you know it. You are working with these people, and this joker right here is fucking with my wife and my kids, he is pressuring me, he is a fucking piece of shit. He is the person who lies, this fucking prosecution."
The court told Davis "[y]ou are excluded from the courtroom," which prompted another obscenity-laden outburst from Davis. In response, the court said, "I am considering you . . . as voluntarily excluding yourself." It told Davis he had "a right to be here. I am not excluding you. You are walking out on your own." Davis disagreed, stating: "No, I am walking out because you ordered these people to have me, to put me in handcuffs and get me out of here, that's what you did. You are full of shit, fuck all of you." Davis left the courtroom shortly before 9 a.m.
About 30 minutes later, defense counsel asked the court to bring Davis back to the courtroom. The court denied the request, noting Davis was "uttering obscenities" as he left the courtroom and that he had not "had enough time to reflect upon his outburst." Later, a sheriff's deputy offered to bring Davis back into the courtroom, but Davis said " 'he never wants to come back, he wants a new trial and he wants a new judge.' " The court nevertheless brought Davis back into the courtroom before the end of the morning session, to ask him whether he wanted to "stay in the courtroom and not have any more outbursts . . . It's up to you. You indicated you did not want to be here, I will honor that wish if you do not want to be with us, I will let you go. It's up to you." Davis responded that he could not guarantee he would not disrupt the court and left the courtroom. The parties conducted voir dire and selected a jury in Davis's absence.
The next morning was December 31, 2014. Outside the presence of the jury, the court noted it had asked defense counsel to speak with Davis "to find out whether he wanted to return to court. [¶] And what was his answer?" Counsel responded: "He does not." The parties gave opening statements and the prosecutor questioned J.B. in Davis's absence. Shortly before 1 p.m., the court excused the jury for the weekend and revisited the issue of Davis's absence with counsel for both parties. Defense counsel reiterated Davis's comment that he did not wish to be present at trial. In response, the court asked defense counsel to speak with Davis "again on Monday morning before we resume to find out whether or not he's changed his mind."
Davis was present the next court day, January 5, 2015, when J.B. was to be cross-examined. Davis denied telling his attorney he did not wish to be present on the previous court day. The court reminded Davis that he could "have no outbursts." Davis agreed, but then immediately objected to the jury being selected in his absence and complained he was not receiving a fair trial. When Davis finished speaking, the court responded, "Thank you. [¶] You've made your record" and "[w]e're going to bring in the jury." Davis said, "Man, get me out of here" and was escorted from the courtroom. The court then held an in camera hearing, where it asked defense counsel, "Was it an accurate statement when . . . I had you inquire whether or not Mr. Davis wanted to be in court — that he indicated to you he did not want to be in court?" Defense counsel responded, "Yes."
On subsequent court days, when Davis was in the courtroom, he insulted the court and demanded to leave. On at least one occasion, the court took sworn testimony from a sheriff's deputy, who testified Davis refused to return to the courtroom.
B. The Court Did Not Deny Davis's Right to Be Present at Trial
"A criminal defendant's right to be present at trial is protected under both the federal and state Constitutions. [Citations.] 'The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation],' . . . Our state Constitution guarantees that '[t]he defendant in a criminal cause has the right . . . to be personally present with counsel, and to be confronted with the witnesses against the defendant.' [Citation.] [¶] . . . [¶] A defendant's right to presence, however, is not absolute. . . . [A] defendant's 'privilege may be lost by consent or at times even by misconduct.' " (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202-1203 (Gutierrez), italics added.) Sections 977 and 1043 outline a defendant's right to be present during certain criminal proceedings. (See Guitierrez, at p. 1202.) We apply " 'the independent or de novo standard of review to a trial court's exclusion of a criminal defendant from trial, . . . insofar as the trial court's decision entails a measurement of the facts against the law.' " (Ibid.)
Davis contends his right to be present on December 31, 2014 — the first day of testimony — was violated by the court's "excusive reliance on his attorney that [Davis] did not wish to be present." Davis suggests the court should have "personally address[ed] him" on December 31, 2014 to determine whether he wanted to return to the courtroom. Gutierrez has rejected this argument and has held a trial court need not "personally confront a defendant to determine whether the defendant desires to be voluntarily absent from court proceedings." (Gutierrez, supra, 29 Cal.4th at p. 1205.) Instead, "a trial judge may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence." (Ibid.)
As Gutierrez explained, a "trial court may continue a trial in a custodial defendant's absence after the trial has commenced in the defendant's presence—without first obtaining the defendant's written or oral waiver of the right to presence—if other evidence indicates the defendant has chosen to be absent voluntarily. While a defendant's express waiver in front of the judge might be the surest way of ascertaining the defendant's choice, it is not the only way. A defendant's 'consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.' [Citations.] In determining whether a custodial defendant who refuses to leave the lockup is 'voluntarily absent' (§ 1043, subd. (b)(2)), a trial court should take reasonable steps to ensure that being absent from trial is the defendant's choice." (Gutierrez, supra, 29 Cal.4th at p. 1206.)
Here, the court took "reasonable steps" to ensure it was Davis's choice to be voluntarily absent on December 31, 2014 by asking defense counsel to speak with Davis. (Gutierrez, supra, 29 Cal.4th at p. 1209.) The court asked Davis's attorney to speak with Davis "to find out whether he wanted to return to court." On December 31, 2014, the court asked defense counsel, "what was his answer?" Defense counsel responded that Davis did not want to return to the courtroom. As an officer of the court, defense counsel had an obligation to be truthful, and his representation was entitled to a presumption of truthfulness. (Rules Prof. Conduct, rule 5-200; Bus. & Prof. Code, § 6068, subd. (d); DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 834 [court presumes, "unless proven otherwise, lawyers will behave in an ethical manner"].) Defense counsel's information was "reliable" and the court considered it when determining whether Davis waived his right to be present in the courtroom on December 31, 2014. (Gutierrez, at p. 1205.)
Additionally, Davis's statements and conduct support "the conclusion that [Davis] himself decided not to be present." (Gutierrez, supra, 29 Cal.4th at p. 1207.) On at least two occasions, Davis told sheriff's deputies he did not wish to return to the courtroom. And when he was brought to the courtroom on other occasions — including on the day J.B. was to be cross-examined — Davis insulted the court and asked to leave. The trial court was not required to personally question Davis on December 31, 2014, or "corroborate" defense counsel's statement. " 'Busy trial courts need not engage in idle acts.' " (Id. at p. 1205.)
The court did not err by accepting defense counsel's representation that Davis did not wish to be present on December 31, 2014; the court "properly continued with trial [that day] in [Davis's] absence." (Gutierrez, supra, 29 Cal.4th at p. 1209.) Having reached this result, we need not determine whether Davis's absence was prejudicial. (Ibid.)
Davis's attempt to distinguish Gutierrez is not persuasive, and his reliance on U.S. v. Ward (8th Cir. 2010) 598 F.3d 1054 (Ward) does not alter our conclusion. Ward is factually distinguishable. In that case, the district court imposed an "absolute ban on the defendant talking to counsel" and excluded the defendant for refusing to comply. Following the defendant's removal, the district court never conversed directly with the defendant about his right to return to the courtroom; instead, the court used defense counsel as an intermediary. The Ward court noted this procedure made it "unclear whether the decision not to return was [the defendant's] or his attorney's." (Id. at p. 1059.) Here, the court imposed no such ban on Davis communicating with his attorney. Unlike Ward, the record demonstrates Davis voluntarily absented himself from the proceedings on December 31, 2014. Davis's reliance on Ward is misplaced for the additional reason that "[t]he Eighth Circuit's decision is not binding upon this court." (People v. Collins (2010) 49 Cal.4th 175, 233.)
IV.
The Court Did Not Abuse Its Discretion by Denying the New Trial Motion
Davis claims the denial of his new trial motion violated his right to confront J.B. about contradictions in her trial testimony.
A. Background
Davis moved for a new trial, claiming newly discovered evidence demonstrated J.B.'s trial testimony was false and coerced. At an evidentiary hearing, J.B. testified child protective services (CPS) contacted her because "a child was involved" in the domestic violence; CPS advised J.B. to have no contact with Davis, and that there could be consequences if J.B. allowed Davis back into her life. J.B., however, was not concerned CPS was going to take her children away, and CPS did not influence her trial testimony. Neither the prosecutor nor the prosecution's domestic violence victim's advocate influenced J.B.'s trial testimony. J.B.'s parents knew Davis had been convicted of physically abusing J.B. They were concerned about Davis's involvement with J.B.'s children and had threatened to take court action to remove her children. J.B.'s relationship with Davis was a source of conflict with her parents, but their comments did not influence her trial testimony.
After the trial, J.B. resumed contact with Davis. She accepted his telephone calls and sent him letters. She also deposited money in his jail account. Davis and J.B. spoke on the phone nine times between March 27, 2015 and April 19, 2015. In the phone calls, J.B. said she had been forced to come to trial. J.B. lied to Davis so he would not be "angry at [her]." She wanted to make Davis "happy" and told him "whatever he want[ed] to hear." In the past, J.B. had lied to hurt Davis, but she "would never lie to the DA or law enforcement." Her trial testimony was truthful.
At the conclusion of the questioning, the court continued the hearing to allow defense counsel to obtain additional jailhouse phone calls between J.B. and Davis. In a supplemental memorandum, Davis quoted statements J.B. made during March and May 2015 phone calls with Davis, and argued the jury would have reached a different verdict had it heard recordings of the calls. According to Davis, the calls demonstrated J.B. was "wholly unbelievable" and if "the jury had the full picture of [J.B.'s] issues with veracity . . . it is reasonable a different result would have occurred."
In a March 18, 2015 phone call, J.B. told Davis the district attorney advised her not to talk to Davis. Under pressure from Davis, she conceded "Well, yeah, they told me to talk to just them, I guess." In a March 26 call, J.B. told Davis she went to trial because "they'll take the kids," but quickly changed the subject to tell Davis she loved him. In a March 17 call, Davis asked J.B. "why do you say that you were never pregnant with our twins then?" and she replied, "I was mad." In two May 2015 calls, J.B. says "it's like I'm a bad person for talking to you because I'm putting my kids in danger, you know what I mean?"
At the conclusion of a second hearing, the court denied the new trial motion. It noted the defense had presented evidence to the jury that J.B. had been untruthful, including lying about her pregnancy. The jury knew J.B. had lied "and still convicted him." The court expressed skepticism of the claim that another instance of lying would have affected the verdict.
B. Denying the New Trial Motion Was Not an Abuse of Discretion
Section 1181, subdivision 8 authorizes a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." In ruling on a new trial motion, the court considers several factors: " ' "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; 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.) "A new trial motion based on newly discovered evidence is looked upon with disfavor. We will only disturb a trial court's denial of such a motion if there is a clear showing of a manifest and unmistakable abuse of discretion." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151 (Mehserle).)
Here, the newly discovered evidence — that J.B. lied to Davis — was cumulative. At trial, J.B. admitted lying to Davis on at least two occasions. The jury heard this evidence and convicted Davis of the charges arising out of the September 11, 2014 incident. The newly discovered evidence was cumulative and Davis has not demonstrated it would have "render[ed] a different result probable on a retrial." As a result, we conclude the court did not abuse its discretion in denying the new trial motion. (People v. Delgado, supra, 5 Cal.4th at p. 328; People v. O'Malley (2016) 62 Cal.4th 944, 1017 [no abuse of discretion in denying new trial motion where the newly-discovered evidence "would have been, at most, cumulative" to other trial testimony]; Mehserle, supra, 206 Cal.App.4th at p. 1151 [newly-discovered evidence was "essentially cumulative . . . and of marginal relevancy"].)
This case is not, as Davis suggests, like People v. Randle (1982) 130 Cal.App.3d 286 (Randle). In Randle, the jury convicted the defendant of forcible oral copulation; the contested issue at trial was whether "the sex act occurred with consent or force." (Id. at p. 293.) The defendant moved for a new trial based on newly discovered evidence consisting of 20 declarations regarding the complaining witness's: (1) reputation for and instances of prostitution; (2) reputation for, and specific instances of, dishonesty and theft; and (3) descriptions of the incident contradicting her trial testimony. (Id. at p. 292.) Despite the evidence, which tended "to destroy" the complaining witness's "testimony by raising grave doubts about her veracity and credibility," the trial court denied the new trial motion. (Id. at p. 293.) The Randle court reversed, holding the trial court abused its discretion by denying the new trial motion, because of the "very unusual facts of this case." (Id. at p. 297.)
In contrast to Randle, the facts of this case are not "very unusual" and the newly discovered evidence would not have tended to raise "grave doubts about [J.B.']s veracity and credibility." (Randle, supra, 130 Cal.App.3d at pp.297, 293.) An additional lie or lies J.B. told Davis during the phone calls would not have affected the jury's consideration of her credibility. The jury had before it evidence J.B. had lied to Davis. Randle is distinguishable, and we reject Davis's claim that the court erred by denying his new trial motion.
V.
The Cumulative Error Claim Fails
Davis contends the cumulative effect of the claimed errors deprived him of a fair trial. We are not persuaded. We have rejected Davis's claims on the merits; when we have assumed error, we have deemed that error harmless. There is no reasonable possibility the jury would have reached a result more favorable to Davis absent a combination of the assumed errors. (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216; People v. Thomas (2011) 51 Cal.4th 449, 508.)
In his opening brief, Davis argues the court erred by imposing consecutive sentences on Counts 3, 4, and 5. The Attorney General contends section 1170.12, subdivision (a)(7) mandates consecutive sentences on these convictions because they are "serious felonies" under section 1192.7, subdivisions (c)(37) and (38). In his reply brief, Davis "does not dispute the Attorney General's position on this issue." We accept Davis's concession and reject his claim of sentencing error.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.