Opinion
D056912
09-16-2011
THE PEOPLE, Plaintiff and Respondent, v. DERREL HAWKINS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD203594)
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
In a prior opinion in this case we reversed a judgment of conviction for the sale of cocaine base (Health & Saf. Code, § 11352) with instructions to the trial court to hear testimony from a defense witness who was not available at trial and determine whether, in light of that testimony, appellant Derrel Hawkins aka Maricus Terrence Green was entitled to a new trial. On remand the trial court heard testimony from the witness, denied appellant's motion for a new trial and reinstated the judgment of conviction. On appeal appellant contends the trial court abused its discretion in denying his motion. We find no abuse of discretion and affirm the judgment.
We note Green is sometimes spelled Greene in the record and in appellant's signature.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial Trial Court Proceedings
We set forth the circumstances which led to appellant's conviction and the reasons for our reversal in our prior unpublished opinion, People v. Green, D052138, July 16, 2009. In our prior opinion we referred to appellant by his true name, Maricus Terrence Green, and we will do so here as well.
By way of prior order we granted appellant's motion to take judicial notice of the record in People v. Green, D052138.
a. Drug Transaction
As set forth in our prior opinion, the drug transaction which led to Green's conviction occurred as follows: "On December 21, 2006, a San Diego police officer working undercover approached Clyde Finley in the 'C Street Corridor'—an area known for drug sales. Finley was walking alongside Green and another individual, later identified as Dennis Snowden.
"The officer asked Finley if he had 'a 20' or a '2-0,' street slang for $20 worth of cocaine base. Finley nodded and indicated for the officer to follow him. Finley then stopped and talked briefly with Green. Green asked the officer for the money and the officer gave him a $20 bill. Green told Snowden to give the officer a 2-0 and Snowden handed a small rock to Green who handed it to the officer. The officer then asked Green for another 2-0 and Green again asked for money. Snowden handed Green another small rock, and Green broke it in two and handed one piece to the officer.[]
"A prosecution witness testified that it is common practice when someone assists in a drug transaction for that person to receive either money or cocaine in return for their assistance."
"The officer walked away from the men and signaled other officers who arrested Finley, Green and Snowden. Finley had the premarked funds used by the undercover officer in his possession along with additional cash. Snowden had rock cocaine in his possession. Green did not have any drugs or money on his person.[] Upon his arrest, Snowden stated, 'It was my dope and my money.'
"The officer testified that after the transaction he observed that Green appeared to be handing 'some paper objects' to Finley."
--------
"The small rock-like material that the officer obtained from Green was tested and determined to be a usable amount of cocaine base (just under .5 grams). A photograph of Green taken after the arrest was introduced into evidence." (D052138, pp. 2-3.)
b. Trial and Post Trial Proceedings
Prior to Green's trial, Snowden pled guilty and received a sentence of 180 days of custody. At the time of his plea, Snowden stated that at the time of transaction he was under the influence of drugs and had no memory of handing the cocaine to Green.
At the time initially set for Green's trial, Snowden could not be located and the trial court granted Green's motion to continue the trial so that Snowden could be located and made available as a defense witness. The trial court granted Green three continuances so that he could obtain Snowden's testimony. Green's efforts failed and the trial court denied Green's request for a fourth continuance.
At trial Green testified on his own behalf. He stated he was homeless and lives in a parking lot near the location where he was arrested. Green said he did not know Snowden or Finley but approached Finley for a cigarette, when a police officer approached and arrested him.
Following his conviction for the sale of cocaine base, Green moved for a new trial. He argued Snowden had been located and in fact was again in custody and would be available to testify at the hearing on Green's motion for a new trial. In support of his motion Green submitted a letter Snowden had written. In part Snowden stated that he had never met Green before seeing Green in court at the commencement of proceedings against them. Notwithstanding Snowden's availability to testify at the hearing on Green's motion for a new trial, the trial court declined to take testimony from him and denied Green's motion for a new trial.
On appeal from Green's conviction, we found the trial court abused its discretion in declining to hear Snowden's testimony about Green's involvement in the drug transaction. We stated: "[W]e do not quarrel with the proposition that Snowden's testimony may prove to be so incredible or without substance that the trial court could reasonably conclude that a different result in light of that testimony would not be probable upon retrial. We cannot agree however, that given the facts of this case, the trial court could reach that conclusion without even hearing from Snowden. Thus, we conclude that the trial court abused its discretion by denying the motion for a new trial without allowing the defense to present the primary evidence in support of that motion. [Citation.] Consequently, we remand the case for the trial court to rehear Green's new trial motion and to allow Green, if able, to present Snowden's testimony (and any other admissible evidence) in support of its motion at that hearing. The trial court should then decide, having 'all available information before it,' whether the new trial motion has merit. [Citation.] If it concludes that the motion has merit, it should order a new trial. If it decides that the motion does not have merit, it should reinstate the judgment." (D052138, pp. 24-25.)
2. Proceedings on Remand
Consistent with our instructions, on remand the trial court heard testimony from Snowden on Green's renewed motion for a new trial. On remand Snowden conceded that the statements in the letter he had written on Green's behalf at the time Green had made his initial motion for new trial were not true; Snowden testified the letter had been written while he was incarcerated and felt under some duress. In particular, Snowden stated that it was not true that he met Green for the first time when they appeared in court together.
According to Snowden, he was working as a "mule" for Finley, who was the principal organizer of the drug trafficking. Snowden further testified that he met Green the day before the drug sale, enlisted Green to "watch his back," and that Green assisted him in the sale to undercover officer.
Snowden testified in an equivocal manner about whether he accomplished the first sale by handing the drugs to Green or whether he handed them to the undercover officer. However at one point he admitted that he handed the first "rock" to Green. Snowden was not sure whether, in effecting the second sale, he handed the drugs to Green or handed directly to the undercover officer.
The trial court initially opined that Snowden's testimony, if believed, might cause a reasonable juror to doubt whether Green directly handed drugs to the undercover officer and whether in "watching Snowden's back" he intended to aid and abet the sales. Thus initially the trial court indicated that it was leaning toward granting Green's motion for a new trial.
In response to the trial court's expression of its views, the prosecutor pointed out the trial was conducted three years earlier and Snowden's testimony completely contradicted Green's trial testimony, in which Green stated that he did not know either Snowden or Finley and that he just happened to ask Finley for a cigarette at the time the sales were occurring. The trial court took the motion under submission and at the request of the prosecutor reviewed Green's trial testimony as well as the testimony of the undercover officers.
Following its review of the trial transcripts, the trial court denied Green's motion. The trial court stated that at the hearing Snowden made a favorable impression and that it appeared that Snowden was successfully rehabilitating himself. However the court found Snowden's testimony did not provide any exculpatory evidence for Green.
The trial court found that although the undercover officer had testified that Green had directly participated in both drug sales and Snowden portrayed Green as being there principally to protect Snowden, to the extent there was any conflict between the two, a jury was likely to believe the testimony of the undercover officer. In this regard the court noted that by his own admission Snowden was under the influence of drugs at the time of transaction and appeared in his testimony to be attempting to protect Green as much as he could.
More importantly, in addition to Snowden's own credibility problems, the trial court agreed with the prosecutor that Snowden's version of events directly contradicted Green's testimony. While Snowden testified that Green was there to protect him, Green testified at trial that he did not know either Snowden or Finley and that he just happened to be at the wrong place at the wrong time.
In light of the undercover officer's testimony and in particular the conflict between Snowden's version of events and Green's, the trial court found that Snowden's testimony, had it been available would not have made a more favorable result probable.
DISCUSSION
" ' "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.' '' [Citations.] ' "[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." '
"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." ' [Citations.]" (People v. Delgado (1993) 5 Cal.4th 312, 328.)
On this record, given Snowden's own credibility problems and the direct conflict between his version of events and Green's version, we are in no position to question the trial court's determination that on retrial it is not probable Snowden's testimony will lead to a different result. Indeed, by placing Green squarely in the transaction as a participant, Snowden's version incriminates rather than exculpates Green.
Thus, the trial court was fully warranted in concluding Snowden's version of events would not cause even one juror to have doubt about Green's role as either a principal or as an aider or abettor in the drug sales. In this regard we note that in light of the trial court's initial conclusion that Snowden's testimony might cause a reasonable juror to doubt Green's guilt, the record reflects that the trial court was very much aware of the correct standard on a motion for a new trial. (See People v. Soojian (2010) 190 Cal.App.4th 491, 519-521.)
Judgment affirmed.
BENKE, Acting P. J. WE CONCUR:
NARES, J.
AARON, J.