Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 196483-02
Pollak, Acting P.J.
The People appeal from an order granting defendant Dennis Duree a new trial following his conviction of five counts of second degree robbery (Pen. Code, § 212.5 subd. (c)). The trial court denied the motion under the statutory ground on which it was made, newly discovered evidence that could not with reasonable diligence have been presented at trial (§ 1181, subd. (8)), but felt compelled to grant the motion on nonstatutory grounds, based on defendant’s assertion that he had engaged in the robberies and maintained his silence at trial because of the threats of his codefendant, who had died after the trial was over. We do not believe that California law required granting the nonstatutory motion and, to the contrary, conclude that for two reasons the court erred in granting the motion.
All statutory references are to the Penal Code unless otherwise noted.
Factual and Procedural Background
The evidence at trial may be summarized as follows.
On May 1, 2005, a couple was robbed at gunpoint at a gas station in San Francisco. The man had been pumping gas as his wife sat in the car. A white Nissan Sentra pulled up, and both the driver and the passenger got out. The passenger, later identified as defendant, approached the man pumping gas, showed the man a gun tucked in his waistband, and ordered him to “Get in the car or I’ll blow your fucking head off.” The man refused to comply and defendant entered the back seat of the car, pulled out his gun, and lunged over the front seat to grab the woman’s purse. After taking $40 to $60 from the purse, defendant left the car and walked away from the gas station, followed by the white Nissan.
About an hour and forty minutes later, the same car pulled up to a group of three teenagers in McLaren Park in San Francisco. Again defendant got out of the passenger side of the car. Defendant showed the teenagers the gun and said, “You guys know what to do.” The teenagers emptied their pockets and defendant took their cell phones, some jewelry (including a chain he ripped from one boy’s neck), a pack of cigarettes and approximately $100. The driver, who was still in the car, yelled to defendant to “Make sure you’ve got all his shit,” after which defendant also took a pair of earrings from another boy. The boys later testified that the driver had threatened them, saying, “I’m going to get you guys. I’ll shoot you,” and “I have a gun. I’ll shoot you guys up.” Defendant returned to the car and he and the driver drove off. The boys left the park and called 911, giving the police a description of the car and the license plate number.
Approximately 15 minutes later, at 1:00 p.m., a police officer spotted the car. He called for backup, then pursued the car. The driver sped away and led police on a high speed chase. The police momentarily lost sight of the car, and when they found it a few minutes later, it was abandoned on a dead-end street with both doors open and the engine still running. Police officers caught up with the driver a block away. The driver was later identified as codefendant Ronald Henry, defendant’s cousin. The car was identified by the victims as the one that had been used during the two robberies, and was later identified as belonging to defendant’s uncle. Inside the car was a gun, $100, and a pack of Newport cigarettes. The gun was later identified as that used in the second robbery, and the cigarettes as belonging to one of the victims.
Defendant had run in a different direction and after jumping some fences managed to elude the police by catching a bus to his home. That night, defendant left San Francisco to stay with an aunt in Sacramento, where he remained for three months. A warrant was issued for his arrest but defendant eventually turned himself in. On August 3, an information was filed charging him with five counts of second degree robbery, with an enhancement for using a firearm appended to each count. At a trial lasting seven days, neither defendant nor Henry testified. Both defendants presented a defense of mistaken identity. The jury found defendant guilty on all five counts and found the firearm enhancements to be true. Henry was found not guilty on the three charges against him.
In the sentencing memorandum submitted by defense counsel and in statements made by defendant and his attorney at the sentencing hearing on February 1, 2006, defendant was portrayed as a “follower” who had been strongly influenced by his cousin. Counsel referred to defendant’s troubled childhood, low intelligence, malleable personality, and impaired judgment due to drugs and alcohol ingested that day as factors affecting why he took part in the crimes. While the attorney mentioned the influence of Henry, he made no suggestion of duress or coercion.
According to the sentencing memorandum, Henry had borrowed a car from defendant’s uncle and picked up defendant on the morning of May 1, 2005. They drove around the city, consuming alcohol. Henry showed defendant a gun, and offered him an ecstasy pill, which defendant ingested. “This was the first time [defendant] had ever taken this particular drug and it, combined with the alcohol, seriously impaired his judgment and common sense. Soon, [defendant] found himself in possession of his cousin’s gun with his cousin also telling him that they were going to get some money by robbing some people on the street. His cousin selected, and drove to the locations of the robberies and instructed [defendant] about what to do and how to do it.”
Defendant’s unsworn statement at his allocution confirms this account: “[W]e rode around, and we was drinking liquor and smoking weed.... [¶] [H]e showed me a pistol after a minute or so. And I never really seen a gun in real life before. So, I asked to see it. I held it, examined it... and passed it back to him. [¶]... [¶] [H]e showed me... two ecstasy pills. He asked me if I wanted to take it.... I told him I never done that before. So, I was cool. He asked me why,... and I told him that... I seen the news and I read stuff about people dying the first time they used the drug. So, I was scared to do it. [¶] So then he did the drug. He took the pill. So, I’m watching him and observing him and nothing happened. So I guess I felt comfortable at the time. So I ended up taking the pill too. [¶]... [H]e showed me the pistol again asking me was I ready to get some money.... I had like an over-fascination with the gun at that time. [¶] I took the gun and held onto it.... First he committed a robbery, and then... he passed me the gun back and told me to go do one, and I didn’t know what to do.... I was kind of confused.... [¶] So, he came talking to me, and I guess I end up doing the driver. It just went on like that, Your Honor.”
According to defendant’s declaration filed with his new trial motion, an initial robbery on May 1, 2005, was carried out by Henry alone. Henry stopped at an intersection, got out of the car with a gun and robbed a pedestrian crossing the street. No charges were filed in connection with this robbery.
Defense counsel included in the sentencing memorandum a letter written on behalf of defendant asking the court to send defendant to an addiction rehabilitation program rather than sentencing him to jail. The letter stated, in part, that defendant’s “long standing drug/alcohol problems... lay at the root of the crimes he committed. While acknowledging his past mistakes as a juvenile, [defendant] wants the court to know that he truly is an honest and good person who, for various reasons, made some terrible decisions on May 1, 200[5].... Unfortunately, his addictions got the better of him and he foolishly listened to suggestions of his cousin.... [Defendant] is really at a loss to explain why he committed the robberies since he knows robbing people at gunpoint does not fit with his character.”
Defense counsel also argued that defendant’s low intelligence and unsophisticated nature made him particularly susceptible to the suggestions of his more sophisticated and criminally experienced cousin. “Viewing the case generally, one is struck by the unsophisticated, and frankly—stupid—conduct displayed [by defendant]. There is [an] overt lack of common sense in committing a robbery in broad daylight, approaching multiple individuals at arm’s length on populated city streets, while displaying a gun, using no disguises to cover one’s identity, and then using a ‘getaway’ car belonging to one’s uncle, traceable via the license plate numbers. Further, getting into the victims’ vehicle at a gas station where the event is captured on videotape renders the conduct even more questionable. Such conduct discloses either unparalleled bravado or abject stupidity resulting in spontaneous and amateurish actions. Considering the personal factors of [defendant],... the latter option is the correct characterization of these robberies. Additionally, the involvement and actions of the ‘getaway driver’ clearly show that the genesis of the crimes did not come from [defendant]—rather, he was the dupe who was given the gun to personally use and approach the victims, while the driver remained in relative safety behind the wheel, in a position of less ‘identifiability’ and with a means of beating a hasty retreat if ‘things went wrong.’... As between [defendant] and the driver, it certainly seems that the driver was the more ‘experienced criminal’ of the two and made a conscious effort to insulate himself from detection and prosecution as much as possible. [¶]... [¶]... [I]t seems clear that [defendant’s] acts did not originate with him.... [T]he criminal intent originated in the mind of [Henry] but [defendant] followed the lead and acted wrongly.”
Furthermore, “throughout the pendency of this case, [defendant’s] choices have been adversely affected by the actions and ideas of another—namely, the codefendant Ronald Henry.” Decisions not to accept a plea deal (including one for a 10 year sentence, seven years less than the prosecutor eventually recommended) and to proceed on a “no time waiver basis” were adopted at the insistence of Henry. Defense counsel declared that “it was always my impression that co-defendant Henry’s opinions in the matter were ‘driving’ the case and that he was ‘imposing’ his views and beliefs about the case upon my client; conversely, I have always observed that... Mr. Henry was the ‘dominant’ personality and [defendant] was the more ‘silent, secondary’ personality. [¶]... [¶]... Mr. Henry was a ‘hothead’ who was controlling the decisions and opinions of [defendant].... I repeatedly stated my beliefs to [defendant] and also urged him [to no avail] to try and disregard the (often erroneous) ideas and opinions of codefendant Ronald Henry.” Defense counsel reiterated at the sentencing hearing that Henry “was the one who was essentially driving the train” and defendant “was working under the influence of Mr. Henry, who... was the mastermind in this.” Counsel pointed out that Henry had a “record of robbery and rape,” and used his “ex-con expertise” to manipulate defendant. Defense counsel contended that defendant “may have a lapse of good judgment on some days, he also was susceptible to the influence of others.” The memorandum states that in making strategic choices during the trial, defendant was under the sway of Henry. The memorandum cites California Rules of Court, rule 4.423(a)(4), under which a defendant’s “participat[ion] in the crime under circumstance of coercion or duress... not amounting to a defense” is a circumstance in mitigation.
Rather than imposing sentence at that point, the court ordered a diagnostic evaluation of defendant pursuant to section 1203.03. On June 6, 2006, proceedings were suspended pursuant to section 1368 while defendant received further diagnosis. On July 5, 2006, defendant was found incompetent to stand trial and proceedings were suspended. On July 26, 2006, defendant was committed to Napa State Hospital for treatment. Approximately 10 months later, on May 23, 2007, defendant was found restored to mental competence and proceedings were resumed.
On July 24, 2007, defendant filed a motion for a new trial pursuant to section 1181, subdivision (8), which 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 this motion, defendant claimed for the first time that he committed the robberies under duress, and that he did not assert this defense at trial “due to the continuing influence and/or continuing fear of [Henry].”
In support of the motion, defendant submitted a declaration in which he claimed that Henry “slipped a couple hits of ecstasy in the brandy” they were sharing without defendant’s knowledge. Although during trial there had been no mention of more than one gun, defendant asserted in his declaration that there were two. Defendant claimed that after Henry had committed one robbery (see fn. 2, ante), Henry “put the 9 mm gun to my chest and told me that if I pulled a robbery too, then he would have ‘dirt’ on me as well and that’s the only way that he could trust me not to turn him in. He did not ask me to do a robbery, but told me that I was going to pull a robbery. I have never had a gun pointed at me before and I was scared for my life, especially since I knew that [Henry] had used a gun before, and that he had even shot a gun at his own sister.... At that point, I was scared for my life and felt that if I did not do a robbery, or if I tried to run out of the car, he was going to shoot me. Since [Henry] knew where I lived, I was afraid that he would be able to find me and get to me or my family at any time in the future if I ran or did not do what he told me.” According to the declaration, Henry then drove to the gas station, gave defendant a gun while he kept the other, and told him to rob the couple at the gas station. A little later, they drove past the three boys and committed the second robbery. “He gave me the gun again and told me to get out of the car and do the robbery. I did as he ordered and all I could think about was what would happen to me if I came back to the car empty handed.... While I was with the guys, [Henry] yelled from the car to make sure and get one guy’s earrings, otherwise he was going to start shooting; I knew he had a gun in the car and thought that his threat was directed at me to make sure I did the robbery the right way and got what he wanted. I remember at the trial, there was testimony from the guys about [Henry’s] threat to shoot someone over the earrings.”
No second gun was ever found. While there was testimony from the three victims of the second robbery that Henry, who remained in the car, had said “I’ll shoot you” and “I have a gun. I’ll shoot you guys up,” there is no evidence in the record that a second gun was ever seen or produced.
According to defendant’s declaration, after eluding the police, defendant went to Sacramento to stay with his aunt. While there, he received three phone calls from Henry’s girlfriend, warning him that if he turned himself in, it “would be bad for him.” Eventually defendant’s father convinced him that he should surrender, convincing him that if he told the police he had been forced to commit the robberies by Henry, “it would not be that bad for [him].” His father drove to Sacramento, picked him up, and drove him back to San Francisco.
The declaration continues that during the course of the trial, when defendant and Henry were in the “holding tank” together, Henry “would always tell me to make sure that I did not tell anyone that we knew each other. He told me that he wasn’t going to take any deals because he ‘couldn’t do 12 years in prison.’ He kept telling me that he knew that we were going to ‘beat the case.’ [He] got me to believe that if I even told my attorney about what really happened, that my lawyer would tell the police and we both would end up going to prison; I ended up not telling the truth to anyone—even my lawyers—and stuck with the story that [he] was telling me to go with. I was also afraid to tell anyone the truth because I knew that [Henry] had guns and knew how to use them, and I also knew that [Henry] was capable of hurting people badly. I also feared that since he knew [a lot] of other criminals on the streets, he could get them to do something to me if he told them that I was snitching on him. At one point during the trial, when it was just the two of us in the holding tank, I told him that I wanted to tell the truth about what happened during the robberies. [He] got real angry and started threatening to beat me up right then and there. Whenever I told him that I wasn’t sure about going along with his story, he would alternate between threatening me to keep quiet and telling me that things were ‘looking good’ and that we were going to beat the case... as long as I ‘stuck with it.’ ”
The new trial motion was also accompanied by declarations from defendant’s lawyer, mother and aunt. Defense counsel declared that he was “particularly struck by [defendant’s] inexplicable and ‘blind’ adherence to his assertions that he did not know Mr. Henry and that he did not commit the robberies in spite of the significant circumstantial evidence against him.... [¶]... [¶] As the case progressed toward certain jury trial, it became more apparent to me that [defendant] was ‘listening to’ and being influenced by, the more experienced, more volatile and more vocal [Henry].... [¶]... [¶] When [defendant] returned to court for sentencing [after being restored to competency] in a much more communicative state than he had been, he told me [for the first time] that Mr. Henry forced him, by contemporaneously threatening his life with a gun, to commit the May 1, 2005 robberies.... [Defendant] was in fear of Mr. Henry continuously from May 1, 2005, through the trial and all the way up to Mr. Henry’s death when he was no longer a threat.”
Henry was murdered in July of 2006, approximately one year before the motion for new trial was filed.
In her declaration, defendant’s aunt stated that Henry had called her and warned her that defendant “had better not ‘snitch’ ” or Henry would “get” him. She also spoke with defendant the day after the robberies and corroborated defendant’s new version of the events of May 1, 2005: Henry “forced [defendant] to commit robberies with a gun; [defendant] kept telling me that he was so afraid of [Henry] and his threats that he felt forced to do the robberies.... [Henry] put a gun to his head... and [defendant] was scared for his life because [Henry] is so crazy and out of control. [Henry] pressured [defendant] the whole way, from getting in the car, then telling him who to rob and where and when and how to do it.... [¶] After [defendant] turned himself in... [Henry] was sending messages to [defendant] while they were both in jail... [saying] things like ‘You don’t know me,’... and ‘Tell them you did it all yourself.... You know what’ll happen to you, nigger.” Defendant’s mother also corroborated his claim that he had committed the crimes under duress.
After a hearing that extended over parts of three days, the trial court reluctantly granted the new trial motion. The court concluded that the motion could not be granted on statutory grounds, since the evidence of duress was not newly discovered. But, despite its own misgivings about the credibility of defendant’s duress claim, felt compelled to grant the motion on nonstatutory grounds. As explained by the trial court on the first day of the hearing: “The court under the facts of this motion and matter that’s been presented to me at trial, I believe, based upon this record, based upon the law that’s set forth as being nonstatutory grounds for a motion for a new trial, requires the court to grant a new trial in this case much against this court’s inclination had the law been otherwise or whether this was left to my own evaluation of the law. [¶] I believe, to make it clear, I believe that I am required to grant a new trial under the facts of this case presented in the motion for a new trial. [¶] This is done despite the fact that the defendant has, by his failure to come forward with this evidence, substantially weakened its probative effect, in my opinion, in any motion for a new trial.”
The court went on to list a large number of discrepancies between the description of events in defendant’s declaration in support of the new trial motion and the statements he had made at his prior allocution hearing. The court stated “that on the defendant’s declaration alone, because of those inconsistencies, I probably would have denied the motion, it being by itself of limited credibility on the issue of Henry’s undue influence.” However, because of the supporting declarations from defendant’s family members, the court felt “that those declarations do establish some sufficient corroboration for me to think that on this record, if I didn’t grant the motion for a new trial now, it would be granted by the First District Court of Appeal in the future.” After commenting on defendant’s delay in raising the issue, especially after “he was advised by his father that the evidence of that intimidation would probably exonerate him and that’s why he turned himself in,” the court continued, “Again, the delay in bringing it forward and his inconsistent or at least contradictory posture at other times substantially weakens the defense at trial, but I don’t think that’s an issue for me to decide on whether or not to grant the motion for a new trial. [¶]... [¶] It’s not the court’s view that this would have changed the result, but it is the court’s view that it was an issue that possibly could have changed the result in the case depending upon how it was presented.... [¶]... [¶] The only reason the court feels it’s required to grant a new trial is so that the defendant can put on evidence of duress and get the appropriate instructions and have the jury decide that issue.”
Following a recess of several days to permit counsel to research the issue further, the court reaffirmed its conclusions. “Absent these nonstatutory new trial cases, I would find and already have found that the new trial—on statutory grounds, this new trial motion should be denied because it does not comply with the law, it is unauthorized, and I would deny it absent [People v.] Williams [(1962) 57 Cal.2d 263], [People v.] Martinez [(1984) 36 Cal.3d 816], [People v.] Davis [(1973) 37 Cal.App.3d 106], and [People v.] Oliver [(1975) 46 Cal.App.3d 747]. [¶]... [¶] The defendant’s position may not be enough to create reasonable doubt in a jury, but it’s not inherently implausible, and it’s supported by declarations from others in the family that point out the undue influence that Henry exerted on the defendant and on their families because of his dangerous nature or at least because of their understanding of his nature, dangerous nature. To that extent, the presentation is not, you know, incredible or completely unbelievable. [¶]... [¶] The bottom line is... that I can’t—if this presentation had been made during the trial, I couldn’t keep it off the stand, couldn’t prevent it from coming in front of the jury on the grounds I didn’t think it was very credible, but I don’t think I can do that now. [¶] If I did do it now, this would go up on appeal, and I’d be just reversed on that ground.... [¶] One of the things that these nonstatutory cases are saying is that if this—if the evidence—if the exclusion of evidence during the trial would have resulted in a reversal through the appellate process, then you have to grant the motion for new trial. [¶]... [¶] The court [grants the motion] reluctantly, but I feel that I’m compelled to do so. If the court had greater latitude in this area, the court would deny the motion on all grounds, but I don’t have that authority.”
The People have timely appealed from the new trial order.
Discussion
Standard of review
“ ‘ “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. Delgado (1993) 5 Cal.4th 312, 328.) “Such an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations].” (People v. Knoller (2007) 41 Cal.4th 139, 156.) “In determining whether there has been a proper exercise of discretion on such motion each case must be examined on its own facts [citation], recognizing that the trial court is in the best position to determine the genuineness and effectiveness of the showing in support of the motion.” (People v. Minnick (1989) 214 Cal.App.3d 1478, 1481.)
The trial court misapplied the nonstatutory grounds for a new trial.
Section 1181, subdivision (8) specifies as one of the nine statutory grounds for which a new trial may be granted, that “new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” California courts have long applied a five-part test to determine the limited circumstances under which a new trial should be granted under this provision: “To entitle a party to have a new trial on this ground, ‘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; and 5. That these facts be shown by the best evidence of which the case admits.” ’ ” (People v. Williams, supra, 57 Cal.2d at p. 270.)
While section 1181 states that a new trial may be granted “only” in the nine instances specified in the statute, “new trials are frequently granted on nonstatutory grounds where the failure so to do would result in a denial of a fair trial to a defendant in a criminal case.... [¶]... [¶] The power to grant a new trial on such nonstatutory grounds obviously is derived from the trial court’s constitutional duty to insure an accused a fair trial. [Citation.]... ‘It is axiomatic that when an accused is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law....’ And, of course, a constitutional duty may not be abridged by statute.” (People v. Davis, supra, 31 Cal.App.3d at pp. 109-110.) “The duty of a trial court to afford every defendant in a criminal case a fair and impartial trial is of constitutional dimension. Where the procedure has fallen short of that standard, an accused has been denied due process, and the inherent power of the court to correct matters by granting a new trial transcends statutory limitations.” (People v. Oliver, supra, 46 Cal.App.3d at p. 751.)
The Attorney General contends that violation of the constitutional right to a fair trial can be found only in cases where “the State itself... deprive[d] individuals of life, liberty, or property without ‘due process of law.’ ” (DeShaney v. Winnebago County Dept. of Social Services (1989) 489 U.S. 189, 195). However, the Supreme Court has made clear that the constitutional right to a fair trial can be abridged in many ways other than the misconduct of the prosecutor—for example, by errors of the trial court itself, which for this purpose is a state actor, or by ineffective counsel, regardless of whether the attorney is appointed by the court or hired privately by the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) As defendant points out, virtually none of the California cases granting a new trial on nonstatutory grounds were predicated on the conduct of a government actor. (E.g., People v. Williams, supra, 57 Cal.2d 263 [failure to call known favorable defense witnesses to testify]; People v. Davis, supra,31 Cal.App.3d 106 [material defense witness failed to appear to testify as he had promised to do]; People v. Oliver, supra, 46 Cal.App.3d 747 [unjustified prejudicial comment by trial judge to the jury].)
Because of the overriding interest in assuring that guilt of a crime is fairly and correctly determined, courts have relaxed some of the conditions under section 1181, subdivision (8) for nonstatutory new trial motions, primarily the requirement that the new evidence not have been discoverable with reasonable diligence. “The requirement of diligence serves ‘a public policy which demands that a litigant exhaust every reasonable effort to produce at his trial all existing evidence in his own behalf, to the end that the litigation may be concluded.’ [Citations.] That policy, however, itself serves a more fundamental purpose—the determination of guilt and innocence. Loyal to that higher purpose, some California cases suggest that the standard of diligence may be relaxed when the newly discovered evidence would probably lead to a different result on retrial. [Citations.] On the other hand, we have found none which declare that although newly discovered evidence shows the defendant was probably innocent, he must remain convicted because counsel failed to use diligence to discover the evidence.” (People v. Martinez, supra, 36 Cal.3d at p. 825, fn. omitted.) “[A]n enlightened system of criminal justice must recognize that, despite all the protections afforded a criminal defendant before and during trial, on rare occasions a person will be wrongfully convicted. [Citations.] Procedural rules designed to encourage the parties to discover and produce their evidence at the trial should not blind the system to the occasional miscarriage of justice. Fundamental principles of due process require a remedy by which a defendant can bring newly discovered evidence before a court to urge correction of an erroneous judgment.” (Id. at p. 826.) Other decisions have held that the concern for a just outcome outweighs the requirement that the evidence not be cumulative (People v. Shepherd (1936) 14 Cal.App.2d 513, 518) and, indeed, the requirement that the evidence be truly “newly discovered” (People v. Williams, supra, 57 Cal.2d at p. 274; People v. Davis, supra, 31 Cal.App.3d at p. 109).
Nonetheless, consistent with the underlying concern of preventing a miscarriage of justice that justifies a nonstatutory motion, there has been no relaxation of the requirement that the new evidence “ ‘ “be such as to render a different result probable on a retrial of the cause.” ’ ” (People v. Williams, supra, 57 Cal.2d at p. 270.) “[W]here the ‘newly discovered evidence’ contradicts the ‘strongest evidence introduced against’ defendant [citation] and comes from an unexpected source [citation], it would appear proper that defendant should have the opportunity of trying to present such evidence for the consideration of the trier of the facts.” (Id. at pp. 274-275.) Whether the proffered new evidence is likely to affect the outcome of the trial requires the trial court to evaluate the credibility of the proffered evidence. Merely because evidence lacking credibility would have been admissible if it had been presented at trial does not mean that such evidence would likely have affected the trial’s outcome or that a new trial is required to permit the jury to evaluate such evidence. “[T]he trial court may consider the credibility as well as the materiality of the evidence in its determination 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; cf. People v. Gaines (1962) 204 Cal.App.2d 624, 629 [“ ‘The rule that a trial judge is not required to accept as true the sworn testimony of a witness applies to affidavits’ ”].)
It is the trial court’s responsibility to evaluate the credibility of the new evidence and the likelihood that it would affect the outcome of trial. (People v. Davis, supra, 31 Cal.App.3d at p. 111.) “The question as to the effect upon the case of the newly discovered evidence is from its nature peculiarly one that is addressed to the discretion of the trial court, and, of course, should be determined by that court with a full realization of the responsibility involved....” (People v. Sing Yow (1904) 145 Cal. 1, 4.) “This remedial procedure, a motion for a new trial based upon after-discovered evidence, is designed to serve the ends of justice. It is made available as a means of relief from manifest injustice. That purpose would hardly be served if the law required the trial judge, who heard all of the evidence and saw all of the witnesses, to assume that a jury would believe testimonial evidence however improbable and unworthy of belief he finds it to be. If the purpose of the remedy is to be served, without subjecting it to undue abuse, the trial judge who approaches the question of the probable effect of the new evidence upon the result, in the event of a new trial, should be vested with a broad discretion in considering matters of credibility as well as materiality.” (Jones v. United States (4th Cir. 1960) 279 F.2d 433, 436, cert. denied sub. nom. Princeler v. United States, 364 U.S. 893.)
From the trial court’s explanation of its ruling, quoted extensively above, we are left in doubt whether the court properly exercised its discretion in this regard. The court clearly expressed its disbelief in the version of defendant’s participation in the robberies first provided in his declaration supporting the new trial motion, and the court’s doubts that this version would be believed in light of its many inconsistencies with defendant’s prior excuses for his involvement. However, despite their obvious bias in favor of defendant, the court regarded as more plausible the supporting declarations of his family members. The court felt that “defendant’s position may not be enough to create reasonable doubt in a jury, but it’s not inherently implausible,” and that since it would have been error to have excluded the evidence if offered at trial, the court was compelled to grant the new trial. As we have indicated, this is not the correct standard. The motion should have been granted only if the court believed that under all the circumstances, including the inherent plausibility or implausibility of the proffered new evidence, the inconsistent statements that defendant had made previously, and the other evidence presented at trial, it was likely that the new evidence would produce a different outcome in a new trial. Were this the only error in the trial court’s analysis, we would remand the matter so that the court could unequivocally make such a determination.
However, there is a more fundamental problem with granting a new trial in this case. We assume, with the trial court, that if believed, defendant’s new version of the circumstances under which he participated in the robberies would constitute the defense of duress. The defense is available when criminal acts are committed as the result of threats that cause the defendant and would cause a reasonable person to believe his or another person’s life is in danger, and the threat is immediate. Penal Code section 26, subdivision six provides that persons are not capable of committing noncapital crimes if they “committed the act... under threats or menaces sufficient to show that they had reasonable cause to and did believe that their lives would be endangered if they refused.” (See also CALCRIM No. 3402 [“Duress or Threats”]; CALJIC No. 4.40 [“Duress─Threats and Menaces”].) “[D]uress negates an element of the crime charged—the intent or capacity to commit the crime—the defendant need raise only a reasonable doubt that he acted in the exercise of his free will.” (People v. Heath (1989) 207 Cal.App.3d 892, 900.) Defendant’s assertion that Henry held a gun to his chest, demanding that he commit the robberies, and that he in fact feared for his life, we may assume, if true, would constitute a defense to the crimes.
While defendant’s posttrial declaration may have supported the defense of duress to the commission of the robberies, the threats defendant describes do not establish duress excusing his failure to come forward with these facts at the time of trial. Even accepting defendant’s claim that Henry threatened to harm his family if he testified truthfully, the harm was not imminent. “Duress is an effective defense only when the actor responds to an immediate and imminent danger. ‘[A] fear of future harm to one’s life does not relieve one of responsibility for the crimes he commits.’ [Citations.] The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent.” (People v. Heath, supra, 207 Cal.App.3d at p. 900.) “An underlying premise [of the defense] is ‘if there was a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm,” the defense[] will fail.’ ” (Ibid.; see CALCRIM No. 3402 [“A threat of future harm is not sufficient; the danger to life must have been immediate”].)
The inapplicability of the duress doctrine to defendant’s purported reason for having earlier failed to reveal Henry’s threats does not, of course, relate to the likelihood of establishing at a new trial the defense of duress to the robbery charges. Rather, the question is whether defendant’s failure to act with reasonable diligence in presenting that defense is to be excused by those threats. In answering this question, the absence of immediacy is as significant in this context as it is in the context of providing a defense to the underlying crimes. If there were other alternatives that defendant could have pursued, the threats provide no excuse for willfully withholding and falsely representing the true situation over the course of trial. There were in fact many alternatives available to defendant, including disclosing the threats to his attorney, with whom he met on numerous occasions prior to and during trial, to law enforcement agents or to the court. While (still assuming the truth of defendant’s statements) these options would have entailed risk, for fundamental reasons of public policy defendant’s decision to pursue the deception and take his chances with the defense that was presented simply cannot be condoned. We conclude that a nonstatutory motion for a new trial is not available based on facts previously known to the defendant but withheld because of threats that do not meet the criteria for the defense of duress.
Although the doctrine of judicial estoppel may not be directly applicable here because neither the court nor the jury accepted as true defendant’s prior position that he was not in any way involved in the robberies (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183), the policies that underlie that doctrine are nonetheless powerfully applicable. “ ‘ “The doctrine of judicial estoppel... is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.... ‘The policies underlying preclusion of inconsistent positions are “general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings.” ’... Judicial estoppel is ‘intended to protect against a litigant playing “fast and loose with the courts.” ’” ’ [Citation.] ‘It seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite.’ ” (Id. at p. 181.)
This conclusion is not inconsistent with the decisions that have eased the diligence requirement for such a motion. In the leading Williams case, for example, the “very unusual facts” were such that defendant was not considered responsible for failing to realize that two known witnesses would provide exculpatory testimony. (People v. Williams, supra, 57 Cal.2d at pp. 271, 275.) Not only was the defendant considered faultless in this respect, but the affidavits in support of the new trial motion “disclose[d] a deliberate scheme [by others] to produce false evidence and to abuse and subvert the process of the court for the purpose of bringing about the conviction of an innocent man.” (Id. at p. 275.) Similarly, in Davis the defendant who obtained a new trial had received a trial that was unfair “without fault on his part.” (People v. Davis, supra, 31 Cal.App.3d at p. 111.) Nor was the defendant at fault in causing the unfairness justifying a new trial in Oliver. And in Martinez the Supreme Court held that defense counsel’s lack of diligence in obtaining evidence likely to have absolved the defendant should not preclude granting a nonstatutory motion for new trial, but the court expressly “distinguish[ed] those cases in which the lack of diligence is that of the defendant himself, as where the defendant knows of a witness but does not inform his counsel. (See People v. Greenwood (1957) 47 Cal.2d 819, 822... and cases there cited.)” (People v. Martinez, supra, 36 Cal.3d at p. 825, fn. 8.) Here, even assuming the truth of everything defendant said in his declaration seeking a new trial, he was plainly at fault in withholding that information at trial. His failure to come forward with the information was not the result of legally recognizable duress and therefore cannot be excused. “While a defendant should be afforded the full benefit of this type of rectifying motion, courts should be on the alert to see that the privilege is not abused.” (United States v. Johnson (1946) 327 U.S. 106, 113.) The trial court erred in granting a new trial based on the facts before it.
Disposition
The order granting a new trial is reversed, and the matter is remanded to the trial court for sentencing.
We concur: Siggins, J., Jenkins, J.