Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. SWF013298, William R. Bailey, Jr., Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
Gordon S. Brownell, 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, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Gerard John Gallo called 911; when the police responded to his home, he showed them a mound of dirt in the backyard and admitted that that was where he had buried the body of his 90-year-old father. He claimed that, a week earlier, they had been having an argument over money when his father simply dropped dead. He admitted writing and cashing a check for $2,000 on his father’s account after his death.
Decomposition made it impossible to say whether the cause of death was homicide or natural causes. However, when a forensic pathologist opined that there were three bruises on the decedent’s face, suffered before death, defendant was charged with murder. The trial court granted a motion for acquittal of first degree murder. A jury convicted defendant of second degree murder.
Defendant contends that the trial court erred by refusing his request for jury instructions on involuntary manslaughter. We agree. There was sufficient evidence that defendant caused his father’s death unintentionally but during the commission of an assault and battery that was not inherently dangerous, which would constitute involuntary manslaughter. Moreover, it seems reasonably probable that, if the jury had been instructed on involuntary manslaughter, it would have found defendant guilty of that rather than second degree murder.
Accordingly, we must reverse. We reject defendant’s additional contention that the trial court erred by denying his motion for new trial, which was based on newly discovered evidence. Thus, we will remand with directions to give the People the option of either retrying defendant for murder or accepting a reduction of the conviction to involuntary manslaughter.
I
FACTUAL BACKGROUND
A. The Prosecution Case.
As of August 2005, defendant’s father, Joseph Gallo (generally known as Joe), was 90 years old. He was living at Mount Rubidoux Manor, a senior housing facility in Riverside. Joe was a cheerful, “[h]appy-go-lucky” kind of person. Because he “liked to play the ponies,” he usually carried large amounts of cash, such as $600, $1,000, or $2,000. He used a walker; he would not go anywhere without it.
Joe told one resident of the Manor that he was afraid of defendant, who “acted pretty crazy at times.” Warren Keys, another resident of the Manor, considered himself Joe’s “best friend.” Joe told Keys that defendant asked him for money often. If Joe had been planning to move out, he would have told Keys, but he never did.
On August 17, 2005, Joe was seen by a physician, Dr. Ving Yam. Dr. Yam found him to be in good physical condition. However, Joe had had one stroke several years earlier. He took one baby aspirin a day to prevent another stroke. He had a history of high blood pressure, though it was well controlled by medication. Dr. Yam did not find any bruises on his face, neck, or arms.
Dr. Yam admitted that, according to medical records, on March 15, 2005, Joe had presented at a hospital with vomiting, chest pain, shortness of breath, and severe dizziness. Joe had had earlier episodes of dizziness in September 2002 and July 2004, as well as falls in February and August 2005.
On Thursday, August 18, 2005, defendant went to the front desk of the Manor and filled out the “sign-out sheet,” indicating that Joe was going to be away for awhile. Defendant told the receptionist that he was taking his father to visit his house, to see if he would like to move in with him, adding that “it was a surprise, so don’t tell his father.” When she asked when Joe was going to be back, defendant did not know; she said “how about the 23rd and he said okay.” Joe was sitting in the same room at the time; he looked upset.
Also on August 18, two other residents of the Manor saw Joe and defendant in the parking lot They both looked angry. Defendant was “storming” out of the parking lot, and Joe was following him. At one point, Joe picked up his walker, “slammed it down” on the ground, and said, “[O]h, shit.”
Defendant lived with his wife in a house in Romoland. One of defendant’s neighbors testified that, sometime between August 16 and 19, in the early afternoon, through her kitchen window, she heard “a heated argument” between two men. She also heard a higher pitched, possibly female voice “interceding.” After a minute or two, she heard “a glass, a pot or something break and shatter.” Then it was quiet.
According to defendant’s cell phone records, on August 18, at 1:59 p.m. and again at 2:02 p.m., he phoned Washington Mutual. Joe had a Washington Mutual checking account. Defendant had once had a Washington Mutual checking account; in March 2005, however, he had deposited a $9,900 check that bounced, causing his checking account to be overdrawn by over $10,000. In May 2005, Washington Mutual had closed the account and written off the overdraft.
Karolee Espe was a receptionist at Miller-Jones Mortuary, less than four miles from defendant’s house. She testified that on a Thursday in early or mid-August 2005, she received a “strange phone call.” The caller identified himself as “Jerry”; he said he was calling from Corona. He said that someone had died in his backyard. Espe told him to call the sheriff and the coroner. He said, “I can’t do that. My friend wouldn’t want me to do that.” He asked, “[C]an I bring him in my truck to your place[?]” She said no, the police and coroner had to be involved. He then asked, “[W]ell, what if I just bury him in my back yard[?]”
Espe passed the caller on to Thomas Bloom, a funeral director, explaining that the caller’s father had passed away. The caller told Bloom that “his dad was sitting in a lawn chair in his back yard with a beer still in his hand.” He indicated that he was just “around the corner.” Bloom asked the caller if he had phoned 911; he responded that he did not want to get the police involved because his father had been in trouble with the law. The caller then said he was going to bury his father in the backyard.
Toni Marie DiDominicus was married to Joe’s grandson (defendant’s nephew); she considered Joe her “gramps.” They spoke regularly, at least a couple of times a week. On August 18, around 5:00 p.m., defendant left a voice mail for DiDominicus. In it, he said, “I picked up my dad today and I brought him out to my house and he’s staying . . . with me for a while here. . . . I’m just letting you know everything’s okay. Uh, and . . . don’t call over there [because] he’s not there.”
On August 19, defendant cashed a $2,000 check on his father’s account, dated August 18 and made payable to defendant. Defendant had signed the check with his own name, adding the words, “[a]ttorney in fact.” According to a bank official, defendant was not authorized to sign on the account. However, she admitted that she did not know whether or not there was “a power of attorney on the account.”
Several days later, a resident of the Manor knocked on Joe’s door; defendant opened it. There were “a bunch of papers” — consistent with bills or bank statements, but not consistent with magazines or newspapers — spread out on the floor. When the resident asked where Joe was, defendant said, “I took him to my place. He is coming to stay with my wife and me.” (Punctuation altered.) Roughly around the same time, Joe’s walker was seen in the back of Joe’s parked truck.
On August 25, defendant went to the Manor again and told the receptionist that Joe was going to be moving out and staying with him. She had defendant fill out a “Notice of Intent to Vacate.” On it, he indicated that Joe was going to be moving in with him; however, he listed a former address, not his current address.
Defendant called DiDominicus several more times that week, saying that Joe was with him and was okay. Nevertheless, she became concerned because Joe had not called her personally. On August 26, DiDominicus’s husband called defendant and told him that, if they did not hear from Joe in the next couple of days, they were going to call the police.
On August 27, defendant made a 911 call. He reported that his father had died a week earlier and was “on the property.” He explained, “[W]e had an argument” and “he couldn’t breathe.” He said that he did not call 911 at the time because he “panic[k]ed” and “didn’t know what to do.”
When the police responded to the call, defendant showed them a mound of dirt in the backyard. Upon removing 12 to 14 inches of dirt, they found Joe’s body, wrapped in two blankets. He had only $2 or $3 in cash. A search of defendant’s house revealed unused checks on Joe’s account, in several locations.
Two small stains on the bottom of a blue rug, near the kitchen counter, tested positive for human blood. There was no blood on the top of the rug; this could have been because it had been placed over some blood that was already on the floor or because it had been cleaned.
In his initial statements to the police, and in a longer interview, defendant said that, on the morning of August 18, around 10:30 a.m., he had picked up his father from a care home in Riverside and brought him to his house. Around noon, they had an argument over defendant wanting to borrow money from his father. It became “a shouting match where they were in each other’s faces.”
Suddenly, Joe fell backwards. As he was falling, his elbow hit a kitchen counter. This opened up a preexisting cut or bruise, which bled onto the wooden floor. Defendant denied “physically lay[ing] a hand on [Joe] . . . during the argument.” Defendant tried to revive his father. When he could not, he “freaked out.”
Defendant told the first officer he talked to that Joe fell backwards suddenly, then began gasping for air. He told a second officer that Joe “gasped and . . . grabbed at his chest and fell backwards onto the floor,” where he continued “gasping a little bit.” In the interview, he told a third officer that Joe started “losing his breath,” then fell, then was “gurgling” and having trouble breathing for about a minute.
Joe’s friend Warren Keys confirmed that Joe had had “[l]ike a blood blister” on his left elbow.
In his initial statements, defendant said he did not call 911 because he was “panicked.” In the longer interview, he said that it did not occur to him to call 911 until “[i]t was too late.” He added that he did not call 911 because he was “afraid of the whole situation, that [he] wouldn’t be believed.” DiDominicus and his other relatives would “think [he was a] money[-]grubbing crook.” When asked, “Were you afraid they were going to think you killed him?,” he answered, “Yeah, maybe.”
Defendant wiped up the blood. He took the body into the backyard, placed it on two lawn chairs, and wrapped it in some blankets. After thinking for half an hour or so, he “decided to make this go away.” He placed the body on the ground and covered it over with dirt.
Defendant admitted writing and cashing a $2,000 check on Joe’s account, explaining that he signed it in his own name because “I’m on the account.”
On August 30, 2005, Dr. Mark McCormick, a forensic pathologist, performed an autopsy on Joe. The body was decomposed to an extent consistent with a date of death some 5 to 14 days earlier. Due to the decomposition, he was unable to determine a cause of death. The cause could have been either natural causes or homicide; “[it is] pretty much a push . . . .” He could not rule out either a stroke or a heart attack. A large stroke would have been apparent, but a small stroke would not. He found no injuries to the elbows, but he would only have been able to find a deep wound, not a superficial one.
Dr. McCormick did find three areas of “discoloration” — above the right eye, on the left cheek, and on the neck. At the autopsy, he thought that these were due to decomposition. Subsequent microscopic examination of two of these areas, however, revealed red blood cells in the tissues. This meant that they were bruises, caused before death. They indicated “multiple impacts.” There was no trauma to the back of the head.
Dr. Yam testified that there was a “possibility” that a blunt impact could set off a heart attack or a stroke.
A sheriff’s deputy testified that, during a “casual conversation” with defendant in the courthouse, he asked what he was in for. Defendant said, “[T]hey found my dad buried in the back yard.” The deputy asked, “Do you know who killed him?” Defendant replied, “I killed him, but they don’t know the circumstances.”
The trial court instructed the jury to consider the deputy’s testimony “only for the purpose of testing th[e] defendant’s credibility” and not “as evidence of guilt.”
B. The Defense Case.
Defendant’s testimony at trial was essentially consistent with his statements to the police, with the following exceptions and additions.
Defendant added that his father had previously given him money from time to time. On August 18, when he picked his father up, defendant mentioned that he needed a loan, and his father indicated that he was willing to make a loan to him. After they got to defendant’s house, defendant asked for $1,600. His father said he would lend defendant only $1,000.
Defendant did not know why he did not call 911 nor why he buried his father’s body, except that he “panicked” and was “not thinking straight.”
Defendant admitted cleaning blood from the rug. He also admitted phoning Washington Mutual, testifying that he wanted to find out whether a check he had written had cleared and what the balance was in his account. He denied that his account had been closed. He admitted writing and cashing the $2,000 check. He claimed that his father had added him to his account as attorney in fact, so that he had the legal authority to do so. He introduced several other checks on his father’s account that he had signed previously. He believed that his signature card had been lost when Washington Mutual took over Home Savings.
Defendant denied taking any cash from his father’s body. He also denied calling the mortuary.
Defendant admitted lying to DiDominicus and to people at the Manor because he was “scared,” adding that he had had “a couple of run-ins with law enforcement.”
Defendant testified that what he said to the deputy was that he buried his father, not that he killed him.
DiDominicus, along with defendant’s wife, brother, and nephew, testified that defendant was not a violent person.
II
PROCEDURAL BACKGROUND
In a felony complaint, defendant was initially charged only with elder abuse under circumstances likely to cause death or great bodily injury or death. (Pen. Code, § 368, subd. (b)(1).) Defendant pleaded guilty.
Over defendant’s objection, the trial court gave the prosecution leave to file an amended complaint, adding a charge of murder. (Pen. Code, § 187, subd. (a).) Defendant then brought a Faretta motion, which was granted. After a preliminary hearing, at which he was held to answer, the prosecution filed an information with the same charges.
In this appeal, defendant does not contend that this was error.
A “Faretta motion” is a motion to allow the defendant to discharge appointed counsel and to proceed in propria persona. (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].)
At trial, after the prosecution rested, the trial court granted a motion for an acquittal of first degree murder under Penal Code section 1118.1. After closing arguments, but before the trial court instructed the jury, defendant requested instructions on involuntary manslaughter. (Pen. Code, § 192, subd. (b).) The trial court refused the request on the grounds that it was untimely and also that there was insufficient evidence of involuntary manslaughter.
The jury was instructed on second degree murder. At the request of the prosecution, it was also instructed on voluntary manslaughter under a “heat of passion” theory. (Pen. Code, § 192, subd. (a).) It found defendant guilty of second degree murder.
Defendant was allowed to have appointed counsel for purposes of posttrial proceedings. Defense counsel then filed a motion for new trial, on grounds including newly discovered evidence, which was denied. The trial court sentenced defendant to a total of 15 years to life in prison.
III
REFUSAL TO INSTRUCT ON INVOLUNTARY MANSLAUGHTER
Defendant contends that the trial court erred by refusing to instruct on involuntary manslaughter.
“Involuntary manslaughter ordinarily is considered a lesser included offense of murder. [Citation.]” (People v. Heard (2003) 31 Cal.4th 946, 981.) “A trial court must instruct the jury on a lesser included offense, whether or not the defendant so requests, whenever evidence that the defendant is guilty of only the lesser offense is substantial enough to merit consideration by the jury. [Citation.] Substantial evidence in this context is that which a reasonable jury could find persuasive. [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 414, fn. omitted.)
Preliminarily, we note that the trial court denied defendant’s request for involuntary manslaughter instructions in part because it was untimely. However, if the trial court had a duty to instruct on involuntary manslaughter at all, it had a duty to do so sua sponte. Accordingly, whether defendant requested such an instruction is irrelevant, much less whether he did so timely.
Involuntary manslaughter is “the unlawful killing of a human being without malice” that occurs “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Pen. Code, § 192, subd. (b).) When based on an unlawful act, it requires proof that the act “was dangerous to human life or safety under the circumstances of its commission.” (People v. Cox (2000) 23 Cal.4th 665, 675.) When based on a lawful act, it requires proof of criminal negligence. (People v. Penny (1955) 44 Cal.2d 861, 879.) “Criminal negligence is ‘“aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . .”’ [Citation.]” (People v. Valdez (2002) 27 Cal.4th 778, 783, quoting Penny, at p. 879.)
“Malice may be express or implied. Malice is express ‘when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ [Citation.] . . . ‘[M]alice is implied “when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” [Citation.]’ [Citation.]” (People v. Robertson (2004) 34 Cal.4th 156, 164, quoting Pen. Code, § 188 & People v. Lasko (2000) 23 Cal.4th 101, 107.) Here, defendant denied intending to kill his father. Moreover, while there was evidence from which the jury could have concluded that defendant hit his father in the head three times, there was little evidence that these blows were life endangering. No bones were broken; there was no bruise to the back of Joe’s head. The evidence indicated that these blows caused death, if at all, by precipitating a stroke or a heart attack. From Dr. Yam’s testimony that Joe was in good health, the jury could have concluded that, even if defendant did hit his father, he did not act with conscious disregard for life.
Nevertheless, if defendant did hit his father, he committed an unlawful act — an assault (Pen. Code, § 240) as well as a battery (Pen. Code, § 242). Accordingly, if the jury found that, under the circumstances, the blows did in fact present a danger to human life, it could find defendant guilty of involuntary manslaughter. And it could find that from the very fact that Joe died. It could also find that from the fact that he had had a previous stroke, as well as from the fact that he was extremely elderly and inferably frail. Myriad cases have held that an involuntary manslaughter conviction can be based on an assault or battery that did not appear life threatening. (E.g., People v. Spring (1984) 153 Cal.App.3d 1199, 1204-1207 [single punch to the head; victim did not fall down or lose consciousness but went into coma a week later]; People v. Jackson (1962) 202 Cal.App.2d 179, 183 [in the morning, defendant “bumped” victim’s head into pavement five or six times; victim “picked himself up and went about his daily business” but collapsed and died that night]; People v. Zankich (1961) 189 Cal.App.2d 54, 67-68 [bystanders heard but did not see single punch; victim died from “a rupture of some defect within one of the blood vessels,” caused by stress, but which could have happened during normal activity, “even during sleep”].)
In People v. Morgan (1969) 275 Cal.App.2d 603, the victim died of a heart attack after the defendant punched him an untold number of times. (Id. at pp. 605-606.) The appellate court upheld a conviction of involuntary manslaughter (id. at pp. 607-608), stating: “This case is clearly one where the appellant inflicted grievous, though perhaps not inherently fatal injuries upon the victim. True it is that the victim suffered from some preexisting deficient physical condition and perhaps the blows struck by appellant would not have killed a healthy man of younger years. . . . We are persuaded in any event that the consequences of an act or acts which are the efficient cause of death of another are not excused, nor is the criminal responsibility for causing death lessened, by the preexisting physical condition of the person killed at the time the act was done, or by his low vitality, which rendered him unable to withstand the shock of the blows inflicted, and without which predisposed condition the blows would not have been fatal, if a causal connection between the blows and the fact of death is made to appear. [Citation.]” (Id. at p. 607.)
The People argue that the evidence showed not a simple assault, but an assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The unlawful act necessary for involuntary manslaughter can be either a misdemeanor or a felony that is not inherently dangerous. (People v. Burroughs (1984) 35 Cal.3d 824, 835-836, disapproved on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.) If death results from a felony that is inherently dangerous, the crime is either second degree murder (People v. Howard (2005) 34 Cal.4th 1129, 1135) or voluntary manslaughter (People v. Garcia (2008) 162 Cal.App.4th 18, 28-32; see also People v. Cameron (1994) 30 Cal.App.4th 591, 604, fn. 8). Assault with force likely to cause great bodily injury is, at least arguably, an inherently dangerous felony. The People therefore conclude that there was insufficient evidence of involuntary manslaughter.
The jury, however, could have found a simple assault or battery rather than an assault with force likely to cause great bodily injury. Once again, while death did, in fact, result, there was evidence that death was not likely or foreseeable. Perhaps the jury could have found that punching a 90-year-old man in the head three times was likely to cause great bodily injury; on this record, however, it was not required to do so.
The People assert that “[i]t was clear from the testing on the tissue samples that [defendant] struck [Joe]’s face with intense force.” Not so. Dr. McCormick merely testified that the injuries were bruises rather than decomposition. There was no other evidence of the force used.
The People also argue that the error was harmless. They point out that the jury had the option of finding defendant guilty of voluntary manslaughter but found him guilty of second degree murder instead. They argue that the jury therefore necessarily found that defendant acted with malice. In the particular instance of “heat of passion” voluntary manslaughter, however, the defendant may act with the intent to kill, which would ordinarily constitute express malice; nevertheless, malice is negated, as a matter of law, because the defendant acts in response to legally sufficient provocation. (People v. Manriquez (2005) 37 Cal.4th 547, 583.) In this case, the evidence of legally sufficient provocation was exiguous. It is no surprise that the jury convicted defendant of second degree murder instead. This verdict, however, must be viewed as a finding that provocation was absent, not that malice was present. Thus, this is not a case in which “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’” (People v. Elliot (2005) 37 Cal.4th 453, 475, quoting People v. Edelbacher (1989) 47 Cal.3d 983, 1028.) Rather, once the jury concluded that voluntary manslaughter was not a tenable verdict, it was faced with “an unwarranted all-or-nothing choice” (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200) between second degree murder and an acquittal.
Defendant argues that the failure to instruct on a lesser included offense violates the federal Constitution and therefore triggers the federal “beyond a reasonable doubt” harmless error standard. We need not decide this issue, because we conclude that the error was prejudicial even under the less demanding state harmless error standard. Under the latter, the failure to instruct on a lesser included offense “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 165.) We “may consider ‘whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 870, quoting Breverman, at p. 177.)
The evidence of murder, however, was not particularly strong. Admittedly, even though the trial court granted a motion for acquittal on first degree murder, there was some evidence of a premeditated killing. Defendant signed his father out of the Manor and took him to his own home, where he would be isolated and relatively helpless. Defendant needed money; at least inferably, he knew that his father habitually carried large amounts of cash. After Joe’s death, his cash was missing, and defendant admittedly wrote a $2,000 check on Joe’s account.
At the same time, there was considerable contrary evidence. When defendant first signed his father out, he indicated that Joe would be returning in a few days. It was only after Joe died that defendant went back to the Manor and reported that he was actually moving out. Defendant testified that an argument preceded Joe’s death; this was corroborated by the neighbor who overheard two men arguing. The phone call to the mortuary suggests that defendant had no preconceived plan for disposing of his father’s body. The same is true of the improvisatory fashion in which defendant buried his father — in his own backyard and without even digging a hole.
The evidence of an unpremeditated killing with malice was even weaker. It consisted largely of three facts — defendant admitted arguing with his father over money right before he died; defendant took $2,000 from his father’s bank account, and inferably also took his cash; and defendant buried his father in his backyard. These circumstances, however, were largely consistent with involuntary manslaughter. Even defendant’s statement to the deputy that he “killed” his father was consistent with involuntary manslaughter as well as with murder.
Most telling of all, it was defendant himself who ultimately (if belatedly) called 911 and reported Joe’s death. Arguably, he did so only because DiDominicus’s husband had threatened to call the police. Nevertheless, if defendant had actually used deadly force on his father, it would seem that he would have dug up the body and dumped it somewhere in the desert, rather than call the police and show them exactly where he had buried it. He had no way of knowing that decomposition had already erased any evidence of such a crime.
Finally, there was no physical evidence of murder. Dr. McCormick’s testimony that there were three bruises on Joe’s face was perfectly consistent with an unintentional killing during an assault and battery. Joe had had one stroke and perhaps also at least one heart attack. Dr. McCormick conceded that he could not rule out either a stroke or a heart attack as the cause of death.
In sum, it seems reasonably probable that, if the jury had been given the option of finding defendant guilty of involuntary manslaughter, instead of being forced to choose between murder, voluntary manslaughter, and acquittal, it would have found him guilty of involuntary manslaughter. Hence, we must reverse.
As we will discuss in part IV, post, we find no other error. Accordingly, the appropriate appellate remedy is to give the prosecution the option, on remand, of either (1) retrying defendant for murder or (2) accepting a modification of the judgment to involuntary manslaughter. (People v. Kelly (1992) 1 Cal.4th 495, 528; People v. Springfield (1993) 13 Cal.App.4th 1674, 1681-1682; People v. Brooks (1986) 185 Cal.App.3d 687, 697-698; People v. Heffington (1973) 32 Cal.App.3d 1, 15-17.)
IV
MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EXPERT TESTIMONY
Defendant contends that the trial court erred by denying his motion for new trial, to the extent that the motion was based on newly discovered expert testimony.
A. Additional Factual and Procedural Background.
Defendant moved for a new trial on several grounds, including newly discovered evidence. The newly discovered evidence, as relevant here, consisted of the testimony of Dr. Harry J. Bonnell, a forensic pathologist who had performed over 7,000 autopsies. Dr. Bonnell had reviewed the police reports, the autopsy report, morgue photos, microscopic slides from the autopsy, and the testimony of Dr. McCormick and Dr. Yam.
Dr. Bonnell noted that, according to Dr. McCormick’s autopsy report, Joe’s “left anterior descending coronary artery (which supplies blood to the conducting system of the heart) [was] 70% obstructed by atherosclerotic plaque.” In addition, on March 15, 2005, Joe had had an episode of dizziness, shortness of breath, chest pain and vomiting, all of which are symptoms of a heart attack. Dr. Bonnell concluded that Joe was “severely ill,” with “severe, widespread atherosclerosis or clogging of his arteries.” He had a “particularly high risk” of suffering a heart attack “with the slightest stress.”
Dr. Bonnell found no evidence of any bruises caused before death. Red blood cells could appear in the tissues as a result of an impact after death — for example, while defendant was carrying the body out to the backyard. Joe had been taking aspirin regularly, which prevents clotting and thus increases the likelihood of postmortem bruising.
The trial court denied the motion, finding that defendant had not exercised reasonable diligence to obtain Dr. Brownell’s testimony.
B. Analysis.
The trial court may grant 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.” (Pen. Code, § 1181, cl. 8.)
“‘In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not 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.’”’ [Citation.] ‘[U]nless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1004, quoting People v. Delgado (1993) 5 Cal.4th 312, 328 & People v. McDaniel (1976) 16 Cal.3d 156, 178-179.)
Here, the defense could have consulted Dr. Brownell as easily before the verdict as after the verdict. Dr. Brownell’s opinion was based exclusively on material that was available to the defense during the trial — particularly the finding in the autopsy report that Joe’s left anterior descending coronary artery was 70 percent obstructed and the medical records showing that Joe had had a previous episode of symptoms consistent with a heart attack. Dr. McCormick’s testimony that Joe had antemortem bruises, along with his testimony that the cause of death could have been either homicide or natural causes, was obviously crucial for the prosecution. In argument on the new trial motion, defense counsel admitted that, if he had been representing defendant at trial, he would have consulted a pathologist.
Finally, defendant had the burden of demonstrating reasonable diligence. (People v. Addington (1941) 43 Cal.App.2d 591, 595.) The new trial motion did not explain why defendant did not consult Dr. Brownell or a similar expert before trial. The trial court could properly deny the motion for this reason alone. (People v. Sheran (1957) 49 Cal.2d 101, 111 [defendant was not entitled to new trial based on memories he had recovered under sodium pentothal when “no reason was given as to defendant’s failure to submit to the sodium pentothal examinations prior to, or during the course of, the trial”].)
Defendant relies on People v. Martinez (1984) 36 Cal.3d 816. There, the trial court denied the defendant’s motion for new trial, which was based on newly discovered evidence, in part due to lack of reasonable diligence. (Id. at p. 822.) The Supreme Court reversed, stating, “We do not believe . . . that this lack of diligence is a sufficient basis for denial of defendant’s motion.” (Id. at p. 825) It added: “[S]ome 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.” (Ibid., fn. omitted.)
The court explained: “Once a trial court determines that a ‘defendant did not have a “fair trial on the merits, and that by reason of the newly discovered evidence the result could reasonably and probably be different on a retrial,”’ [citation], it should not seek to sustain an erroneous judgment imposing criminal penalties on the defendant as a way of punishing defense counsel’s lack of diligence. In many cases, . . . proof of counsel’s lack of diligence to discover evidence will demonstrate that counsel was constitutionally inadequate . . . . In such cases a new trial would be required . . . . The focus of the trial court, however, should be on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsel’s lack of diligence was so unjustifiable that it fell below constitutional standards. Counsel who believes in good faith that he used due diligence cannot reasonably be expected to argue his own ineffectiveness; his client should not pay a penalty because of the attorney’s unwillingness to assert his own incompetence. If consideration of the newly discovered evidence is essential to a fair trial and a just verdict, the court should be able to grant a new trial without condemning trial counsel as constitutionally ineffective.” (People v. Martinez, supra, 36 Cal.3d at pp. 825-826, fn. omitted, quoting People v. Williams (1962) 57 Cal.2d 263, 275.) In a footnote, the court stated: “We distinguish 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. [Citation.]” (People v. Martinez, supra, at p. 825, fn. 8.)
Here, because defendant was representing himself, the lack of due diligence was entirely his own. He asks us to draw a distinction between him as a party and him as his own counsel, arguing that he lacked diligence, if at all, solely in the latter role. Under Martinez, however, this is irrelevant. Martinez reasoned that defense counsel’s lack of reasonable diligence would be grounds for a new trial all by itself; it also reasoned that defense counsel should not be in the position of filing a motion for new trial based on his or her own ineffective assistance. A defendant who has been allowed to proceed in propria persona, however, is not entitled to a new trial based on ineffective “assistance.” (People v. Blair (2005) 36 Cal.4th 686, 734.) Moreover, in this case, defendant was provided with appointed counsel for purposes of filing the new trial motion. Accordingly, the reasons stated in Martinez for overlooking trial counsel’s lack of reasonable diligence were not present.
We therefore conclude that the trial court did not err by denying defendant’s motion for new trial to the extent that it was based on newly discovered expert testimony.
V
DISPOSITION
The judgment is reversed. Defendant may be retried for second degree murder. However, if the People fail to bring defendant to a new trial in a timely manner (see Pen. Code, § 1382, subd. (a)(2)), our remittitur shall be deemed to modify the verdict by reducing the conviction from second degree murder to involuntary manslaughter, and the trial court shall promptly resentence defendant.
We concur: KING J., MILLER, J.