Opinion
F054788
2-19-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GEORGE JEFF II, Defendant and Appellant.
David R. Mugridge for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
INTRODUCTION
Appellant Robert George Jeff II was convicted after jury trial of gross vehicular manslaughter while intoxicated, driving under the influence of alcohol and causing bodily injury to another, driving while intoxicated and causing bodily injury to another, failure to stop at the scene of an injury accident and driving with a license suspended or revoked for driving under the influence of a drug or alcohol. (Pen. Code, § 191.5, subd. (a); Veh. Code, §§ 23153, subds. (a) & (b), 20001, subd. (a), 14601, subd. (a).) Appellant admitted a special allegation that he has two prior convictions for driving under the influence of alcohol. (Pen. Code, subd. (d).) He was sentenced to an aggregate term of 18 years to life imprisonment.
Appellant argues trial court abused its discretion and infringed his constitutional rights by denying a pretrial Trombetta motion and by denying his new trial motion. We are not persuaded and will affirm.
California v. Trombetta (1984) 467 U.S. 479 (Trombetta).
FACTS
At approximately 8:30 a.m. on August 19, 2005, a Lexus vehicle was observed traveling at a high rate of speed on a roadway in Hanford that ran alongside a canal. The driver was unable to negotiate the "S" curved road. The Lexus traversed the canal in a counter clockwise motion. Its front end impacted with the canals east bank, followed by the passenger side. At some point, the vehicle overturned. It came to rest right side up on the sloped east canal bank. Witnesses called for emergency services and went to the scene to assist. Three people were in the Lexus when the accident occurred: appellant, Robert Barrios (Barrios) and Tony Jeff (Tony).
Some witnesses have been referenced by their first names in order to avoid confusion. No disrespect is intended or implied.
Allan McCain saw a cloud of dust and then noticed the Lexus on the canal bank. He reached the scene about five minutes after the accident. Tony was flailing in the canal trying to stand up and Barrios was floating face down in the water. McCain pulled Barrioss head out of the water and held onto him to make sure that he did not slide back into the water.
About three minutes later, McCain heard wrestling noises emanating from inside the Lexus and then heard a splash. He saw appellant coming from around the passenger side of the Lexus. Appellant had a big cut on his forehead and a bloody face. McCain asked appellant if he was okay. Appellant replied, "I have to go, Im on parole." McCain said, "[Y]ou are hurt pretty bad, you need to stay." Appellant replied, "Im on parole." McCain told appellant that it was "okay, it was just an accident. You are not going to be in trouble." Appellant kept repeating that he was on parole and he had to go. McCain asked appellant who was driving. Appellant said, "I was, but I got to go, Im on parole." Appellant began to walk off. McCain asked appellant if he could at least help him pull Barrios fully out of the canal. Appellant did so. Then he told McCain to "take care of both of them and he had to go." Appellant "started stumbling off north bound along the east side of the canal." When police officers arrived, McCain told "them that another person was hurt really bad and he was walking this direction and he said he was the driver."
Highway Patrol officer Chris Maselli heard the radio broadcast stating that appellant had fled. Maselli decided to search for appellant. He noticed another officer standing near appellant. Maselli joined the officer. Appellant appeared angry and agitated. He flailed his arms, yelled and swore. Appellant shouted "for us to shoot him." Appellant was apprehended by the officers. He had a visible laceration across his forehead and his head and hair were covered in blood. Appellants speech was slurred and "[h]e was going through mood swings, which is consistent with being under the influence." He had a "very strong [odor of alcohol] on his breath and person."
Appellant was taken to the hospital, where he gave a statement to Maselli. Appellant "[s]tated that he was walking down the canal bank, did a suicide 360 and fell down and when he fell down, he hit his head, stated he was not in the collision." Appellant said he was injured by falling onto the dirt canal bank and "claimed he was never in any kind of collision."
Maselli performed two breathalyzer tests on appellant. The results showed blood alcohol concentration levels of .185 percent and .182 percent. A blood sample was taken from appellant, tested and found to have a blood alcohol concentration level of .19 percent.
Barrios died at the hospital. The cause of death was respiratory failure resulting from multiple blunt force trauma to the chest. Also, Barrios sustained cranial swelling, internal injuries, a pelvic fracture, lacerations on his right arm, a torn groin, abrasions on his left hip, and bruising on the right side of his body.
Appellant sustained a laceration on his head and a laceration on his left knee.
Tony sustained a laceration on his right cheek and a seat belt abrasion on the right side of his neck.
Photographs were taken of the scene, the damage to the Lexus and the injuries sustained by its occupants. Maselli noticed blood on the headrest of the drivers seat of the Lexus and saw that a strand of long hair was stuck on the blood. At the time of the accident, both Tony and Barrios had shaved heads and appellant had long hair. Maselli took the headrest into custody and sent it to the Department of Justice for testing. The blood on the headrest was swabbed and DNA tested. The test identified appellant and eliminated Barrios as a possible source of the sample. The criminalist who performed the DNA test was not provided with a sample of Tonys blood.
Appellant, Tony and Barrios "are all first cousins." However, people with close biological relationships still have different DNA.
Based on damage to the Lexus and the injuries sustained by its occupants, Maselli opined that appellant was the driver, Barrios sat in the front passenger seat and Tony sat on the right side of the rear seat. Appellant and Tony had their seat belts buckled when the accident occurred. Barrios ejected from the Lexus through the right front window. Maselli concluded that appellant was the driver based on the relatively minor injuries he sustained and the blood and strand of hair found on the drivers seat headrest.
Appellants defense was based on the premise that he was a passenger in the Lexus when the accident occurred. Appellant testified that he was drinking the night before the accident and he continued drinking at Trina Alanizs house when he awakened the next morning. He went with Barrios and Tony in the Lexus to buy some more beer. Appellant testified he was sitting on the front passenger seat and Barrios was driving. He started to blackout after they left the house and does not remember anything until he saw a scared look on Barrioss face; the next thing appellant remembers is a person telling him that help is on the way. Appellant testified that the police told him that he was the driver and he repeatedly denied it. Appellant admitted that he lied to the police when he told them that he was not involved in the accident. He also admitted two prior drunk driving convictions and that his drivers license was suspended when the accident occurred. Appellant also admitted that despite having a suspended license, he still drove occasionally. Finally, appellant admitted that at times he drove other peoples cars.
Appellants aunt, Melissa Contreras, and his friend, Steven Thomas, testified that on the morning of the accident a group of people, including appellant, Barrios and Tony, were all drinking beer and socializing outside of Trina Alanizs house. Around 8:00 a.m., appellant, Barrios and Tony left in the Lexus to buy some more beer for the group. Barrios got into the drivers seat; appellant sat on the front passenger seat; Tony sat on the back seat behind appellant.
Jennifer Barrios (Jennifer), who was Barrioss mother and is appellants aunt, testified that Barrios was the primary user of the Lexus even though he did not have a valid drivers license.
Celia Hartnett gave expert accident reconstruction testimony for the defense. She was unable to examine the Lexus because it was sold at auction in August 2005 and crushed for scrap metal in June 2006. Because she could not examine and analyze the interior of the Lexus, she was unable to determine who drove the vehicle. Hartnett testified that it would be speculative to make conclusions concerning the positions of appellant, Barrios and Tony in the Lexus based on photographic evidence of the damage to the Lexus and the physical injuries sustained by its occupants.
DISCUSSION
I. Failure to preserve the Lexus did not infringe appellants due process right.
A. Facts
The Lexus was impounded by the California Highway Patrol on the day of the accident. It was released for sale by the California Highway Patrol on August 30, 2005; it was sold at auction on this date to an auto salvage company. The Lexus was transferred to two other owners and in June 2006 it was stripped of component parts and crushed for scrap metal.
On October 18, 2005, charges were filed against appellant. He was arraigned on August 17, 2006. Ken Brock was immediately listed as counsel of record. The preliminary hearing was held on September 6, 2006; Maselli was the only witness. Appellants first informal request for location of the Lexus was made in October 2006.
On July 20, 2007, appellant filed a pretrial motion asserting that release from impound and sale of the Lexus violated Trombetta. He sought dismissal of the case or suppression of all DNA evidence against him and suppression of Masellis observations and opinions. In his moving papers, appellant primarily focused on the contention that the interior of the vehicle contained numerous observable and testable blood stains in various locations and these stains were potentially "exculpatory or incriminatory nature." Appellant also mentioned that the respective positioning of the driver and passenger seats had evidentiary value.
Appellant supported the motion with three declarations authored by forensic scientists who were contacted by defense counsel. The first declaration was authored by the defenses accident reconstruction expert, Celia Hartnett. She declared that she recommended to defense counsel that various tests be performed on the interior of the vehicle to establish the drivers identity and positions of the three occupants when the accident occurred. "Due to the fact that the vehicle was destroyed before our staff had an opportunity to perform any of these examinations, significant physical evidence was lost that may have had the potential to either positively identify the driver, or to positively place [appellant] in a position in the vehicle other than the drivers seat." The second declaration was authored by Robert Jess, a senior forensic scientist. He declared that if the Lexus "had not been destroyed, further examination could have been conducted by the Defense to aid in determining the location of each occupant of the vehicle at the time of the incident." The destruction of the vehicle "caused the loss of significant physical evidence, which might have otherwise had potential reconstruction value. [Boldface and italics omitted.]" The final declaration was authored by Laurie Jennings, a biological screening and DNA expert. She declared that "[w]ith a properly and professionally conducted probe of the vehicle, the positions of each of the three involved individuals may have been determined. Due to the fact that the vehicle was destroyed before I had an opportunity to perform my own examinations, significant physical evidence was lost which might have otherwise had potential reconstruction value."
The People opposed the motion, arguing that the Lexus did not contain material, exculpatory evidence that was apparent before its destruction. Since appellant denied being involved in the accident, the additional blood evidence inside the Lexus was potentially incriminating and did not have apparent exculpatory value. In any event, because appellant climbed from the wreckage through the passenger side, his blood would be found throughout the cabin. Also, appellant did not establish bad faith.
The motion was denied after hearing. The court determined there was no evidence of bad faith on the part of the individuals responsible for investigation of the accident and storage of the Lexus. Further, there was no evidence showing that the failure to maintain custody and control of the Lexus after the initial investigation was done intentionally for the purpose of impeding preparation of a defense. Their decisions concerning investigation of the accident and the storage of the vehicle appeared to be reasonable and appropriate under the circumstances. The court also determined it would not have been reasonably foreseeable to the investigating officers that other blood sites in the vehicle would be exculpatory or of critical importance. The evidence that might have been obtained from additional testing would have been ambiguous. The presence of blood in other sites within the Lexus would not significantly diminish the probative value of the blood and hair found on the headrest because appellant was seen crawling from the car.
B. The pretrial Trombetta motion was properly denied.
Trombetta, supra, 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) establish the standard for a federal due process claim arising from failure to preserve evidence. In Trombetta, the Supreme Court held that the preservation obligation is "limited to evidence that might be expected to play a significant role in the suspects defense." (Trombetta, supra, 467 U.S. at p. 488, fn. omitted.) To meet the standard of constitutional materiality, the evidence at issue "must both possess an exculpatory value that was apparent before the evidence was destroyed" and it must "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489.) In Youngblood, the Supreme Court determined that the states responsibility is further limited when the defendants challenge is to "the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." (Youngblood, supra, 488 U.S. at p. 57.) In such a case, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process ...." (Id. at p. 58.)
In California state courts, the Trombetta and Youngblood standards are applied together. If the evidence has apparent exculpatory value, then the state has a duty to preserve it and loss or destruction of this evidence infringes the defendants due process right, even if the police acted in good faith. When the evidence is merely potentially useful to the defense, the states responsibility is more limited. In such a case, bad faith must be shown to prove a denial of due process. (People v. Roybal (1998) 19 Cal.4th 481, 509-510 (Roybal).) If the defendant demonstrates that significant exculpatory evidence was lost or establishes bad faith in connection with the loss of potentially useful evidence, the trial court has discretion to impose appropriate sanctions. (People v. Medina (1990) 51 Cal.3d 870, 894.) On review, an appellate court "must determine whether, viewing the evidence in the light most favorable to the superior courts finding, there was substantial evidence to support its ruling." (Roybal, supra, 19 Cal.4th at p. 510.)
Prior to Trombetta, California courts afforded defendants greater due process protection in destruction of evidence cases. (See, e.g., People v. Hitch (1974) 12 Cal.3d 641 (Hitch). These cases were based on California courts interpretation of the federal due process clause and not on any independent state grounds. Therefore, Hitch and its progeny did not survive Trombetta. (People v. Johnson (1989) 47 Cal.3d 1194, 1234.)
i. The Lexus did not contain evidence having an exculpatory value that was apparent when the vehicle was released from impound and sold.
We agree with the trial court that the Lexus did not contain evidence having an exculpatory value that was apparent before the vehicle was released from impound and sold in August 2005. Appellant gave a statement on the day of the accident denying any involvement in the accident and stating that he was injured in a fall. This was a rollover collision and McCain heard appellant wrestling around inside the Lexus and climb out through the passenger side of the vehicle. McCain told police officers that appellant admitted being the driver. Therefore, additional fingerprints or blood evidence matching appellants DNA type anywhere inside the Lexus would have been inculpatory in the sense that it would have tended to disprove appellants statement that he was not involved in the accident and to support McCains statement that he saw appellant climb out of the vehicle. Furthermore, the three defense experts merely averred that analysis and testifying of blood, fingerprint and positioning evidence contained inside the Lexus might have benefitted the defense. The experts did not aver that such evidence necessarily would have been exculpatory or have supported appellants trial defense that he was a passenger. Such a pronouncement would have been highly speculative. It is equally likely that additional evidence derived from the Lexus would have provided further proof that appellant was the driver. In sum, the blood, fingerprint and positioning evidence that could have been obtained from the Lexus would have opened avenues of investigation that might have led in any number of directions adding to the body of circumstantial evidence in this case. Thus, the Lexus did not meet the constitutional standard of materiality established in Trombetta.
ii. Appellant did not establish bad faith.
Appellant also failed to establish bad faith within the meaning established in Youngblood. Bad faith is proven when one shows evidence of official animus toward the defendant or a conscious effort to suppress evidence. (Trombetta, supra, 467 U.S. at p. 488.) In this case, neither animus nor conscious suppression was shown. There was no reason for investigators to believe in August 2005 that there would be a conflict over the positions of the occupants of the vehicle because appellant denied being in an accident and McCain told police officers that appellant admitted being the driver. The investigators were not required to anticipate all possible lines of defense that might be advanced at trial. Furthermore, no evidence was presented demonstrating that the release from impound or sale of the Lexus was conducted in a manner inconsistent with standard procedures. Although appellant asserts that the registered owner of the Lexus did not receive advance notice of the sale, he did not offer any support for this assertion in his moving papers or testimonial evidence at the pretrial hearing. Also, he did not offer any proof that notice customarily is provided to registered owners when the vehicle has been declared a total loss by the insurer.
As in People v. McNeill (1980) 112 Cal.App.3d 330 (McNeill ), this is a case that is "less one of failure to preserve evidence than failure to gather and collect everything which, with fortuitous foresight, might prove useful to the defense." (Id. at p. 338 [not required to gather and retain fingernail scrapings from decedent].) The People are not obligated "`to foresee everything the fertile mind of the defense counsel might wish to examine." (Ibid.) Since appellant failed to establish constitutional materiality or bad faith, the pretrial Trombetta motion was properly denied. (McNeill, supra, 112 Cal.App.3d at p. 338; see also People v. Cooper (1979) 95 Cal.App.3d 844, 850-851 [not obligated to handle plastic bag containing heroin with gloves or to test it for fingerprints].)
C. Refusal to reconsider this issue did not deprive appellant of a substantial right.
At trial, Jennifer testified that she was the registered owner of the Lexus and that no one contacted her between "August the 18th and August 20th" to tell her that the car was going to be released from impound and sold for salvage.
Appellant filed a motion for new trial that was based on an unrelated claim of newly discovered evidence (see discussion part II). During an oral argument on this new trial motion that was conducted on February 11, 2008, defense counsel asserted the trial was unfair from the start because the state destroyed the Lexus. During his responsive argument, the prosecutor said, "The People didnt destroy that car. The family of the defendant destroyed that car, not the People." Defense counsel replied that the prosecution misled the defense for nine months by "telling us that that car did exist." The court stated that it did not remember "the evidence of the state destroying that car" and it did not see how or why the state could destroy the Lexus "without any input or involvement by the owner or insurance company." Defense counsel replied that the former owner of the Lexus was present in the courtroom. The court refused "to go into that issue today. That has nothing to do with the motion before this court."
Appellant contends that the courts refusal to reconsider the Trombetta issue constituted an injustice that deprived him of a substantial right. We disagree. Because the point orally raised at the new trial motion lacked merit, the trial courts refusal to consider it is harmless and does not require remand. (People v. Braxton (2005) 34 Cal.4th 798, 816-817 [overruling People v. Sarazzawski (1945) 27 Cal.2d 7].)
The Trombetta claim was fully litigated before trial and it was decided on the merits. Appellants written new trial motion was based on other grounds. Although defense counsel did not orally articulate a coherent legal argument based on the applicable standard, the substance of his remarks on February 11 implied that he believed the state had not acted in good faith when the Lexus was released from impound and sold. If this point had been considered on the merits, it would have failed.
As previously explained, bad faith is established when there is evidence of official animus toward the defendant or a conscious effort to suppress evidence. (Trombetta, supra, 467 U.S. at p. 488.) Appellant did not offer any evidence showing that the release from impound and sale of the Lexus was conducted in an irregular manner. The Lexus was declared to be a total loss by the insurer. Jennifers testimony that she did not receive advance notice of the sale would not have been sufficient to support a finding of bad faith because appellant did not offer any proof indicating that notice is customary when a vehicle is declared to be a total loss. Also, appellant did not offer any proof that the prosecution intentionally misled the defense about the possible existence of the Lexus; an honest mistake is not equivalent to bad faith. In any event, since the Lexus was destroyed in June 2006 and appellant first requested information about the Lexus in October 2006, appellant cannot demonstrate tangible prejudice arising from confusion about the possible existence of the vehicle.
Thus, we find the trial courts refusal to reconsider the Trombetta claim was not an abuse of discretion; appellant was not prejudiced or deprived of any substantial right.
II. The new trial motion was properly denied.
A. Facts
Appellant was on parole when he committed the current offenses. On September 19, 2005, a probable cause hearing for revocation of appellants parole based on offenses arising from the automobile accident was conducted at Kern State Prison. The written summary of revocation hearing and decision (the summary) reflects that appellant was represented at this hearing by Kim Fowler. It also reflects that Contreras and Tony were subpoenaed by the defense to appear as witnesses. However, neither Contreras nor Tony could be cleared for entry into Kern State Prison. The summary does not indicate why they could not be cleared. Also, it does not indicate that anyone submitted a written statement. On September 23, 2005, appellants parole was revoked and he was returned to custody for 12 months.
At trial, Contreras testified as a defense witness. In relevant part, she testified that she did not give any statements to law enforcement. Her credibility was attacked by the prosecutor, who argued that she was biased and only provided information when it benefited the defense.
Tony was not called as a witness by either side.
Appellant filed a motion for new trial based on a claim of newly discovered evidence. Therein, he asserted that Contreras and Tony each submitted a handwritten statement at the parole revocation hearing and these statements contained material, exculpatory evidence. Appellants trial counsel, Ken Brock, learned about the creation of these statements after the verdict was entered.
Appellant submitted supporting declarations from Contreras and Tony. They averred that after they could not be cleared for entry at Kern State Prison, they each wrote a handwritten statement and gave it to a uniformed officer. Contreras declared that she wrote Barrios was driving when the three men left to buy beer. She forgot about writing this statement but spontaneously recalled the event about two months after the trial ended. Due to her memory lapse, she did not tell anyone about it before trial. Tony declared that he wrote Barrios was driving when the accident occurred. Tony declared that when he was interviewed by Brock, he responded "No" to Brocks query whether he "had made any statement to anybody else about the accident" because he thought the question was limited to "another police officer at that time."
Appellant also submitted a supporting declaration authored by Brock. Brock declared that he interviewed Contreras and Tony as part of his trial preparations. Neither of them told him about the handwritten statements. After interviewing Tony, Brock made the strategic decision not to call Tony as a defense witness because Tony told police officers that he did not know who was driving when the accident occurred. Brock averred that if he had known about the written statements, he would have called Tony as a defense witness and used Contrerass written statement to bolster her credibility. Brock also declared that he contacted Fowler. She told him "there were witnesses who were excluded, but she does not recollect if written statements from these persons were provided." Fowler also said that she does not know if she ever possessed written statements authored by Contreras and/or Tony. She routinely destroys her parole revocation hearing files every six months. If she possessed such statements, she had destroyed them.
Finally, appellant submitted a letter authored by a representative of the Board of Parole Hearings responding to a "request ... concerning the hearing held on September 23, 2005 [sic]." The letter states that transcripts are not produced for revocation hearings and audio tapes serve as the official record of the hearing. The policy of the Board of Parole Hearings is to maintain a copy of the parole revocation hearing for one year from the hearing date. After one year, the tapes and all documentation are purged.
The People opposed the motion, arguing there was no credible proof that the written statements ever existed. Moreover, the evidence is neither new nor material.
The motion was denied after hearing. The court did not see "no basis to the defense claims that theres been any unfairness, or any denial of due process by the circumstances that are claimed to have surrounded [Contrerass] change of ... story...." It concluded that the new trial motion had "no basis in law or fact."
B. Denial of the new trial motion was not an abuse of discretion.
Penal Code section 1118 authorizes grant of a new trial based upon newly discovered evidence. The applicable standard is established:
"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. Turner (1994) 8 Cal.4h 137, 212 (Turner).)
"`The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." (People v. Williams (1988) 45 Cal.3d 1268, 1318.) The appellate court may base its affirmance of the trial courts decision solely on the unlikeliness of a different result on retrial. When it does so, it need not address the remainder of the listed factors. (People v. Delgado (1993) 5 Cal.4th 312, 329, fn. 7 (Delgado.)
In this case, the trial court acted well within its discretion in denying the new trial motion because it is not reasonably probable that admission of the newly discovered evidence would result in a more favorable result on retrial.
Appellant acknowledges in his reply brief that a Trombetta violation is not an enumerated ground for granting a new trial under Penal Code section 1181, writing that "[a]ppellant moved for a new trial under Penal Code section 1181 based on newly discovered evidence that was not available at trial, not for the Trombetta violation." Yet, appellant repeatedly asserts that the state destroyed the written statements. This assertion is unproved. Appellant did not provide any convincing evidence that the statements Contreras and Tony claimed they wrote were given to the hearing officer or included in the record maintained by the Board of Parole Hearings. Neither Contreras nor Tony described or named the uniformed officer to whom they allegedly gave their written statements. Appellants attorney, Fowler, does not recall whether the witnesses who were excluded from the hearing provided written statements. There is no indication in the summary that any defense witness submitted a written statement. In the absence of convincing evidence that the statements were ever in the custody of Kern State Prison or the Board of Parole Hearings, it cannot be proved that they were "destroyed by the government," as is asserted by appellant. Since appellant did not prove either governmental custody or destruction, the assumption that there was a "Trombetta violation" is unfounded.
The credibility as well as the materiality of the newly discovered evidence is relevant. (Delgado, supra, 5 Cal.4th at p. 329.) "[I]t is settled that the offer of a witness, after trial, to retract his sworn testimony is to be viewed with suspicion." (In re Weber (1974) 11 Cal.3d 703, 722.) In this case, there is no independent proof that the handwritten statements ever existed. Fowler does not recall if any written statements were created or provided to the hearing officer. Both Fowler and the Board of Parole Hearings destroyed their records of the hearing in accordance with their customary practice. Thus, testimony from Contreras and Tony — that, after being denied prison clearance to testify as defense witnesses at appellants parole revocation hearing, they gave an unnamed officer a handwritten statement consistent with their trial testimony — would be uncorroborated. Without corroboration, reasonable jurors would give such testimony little weight.
Furthermore, Brock declared that the police reports indicated that Tony did not know who was driving. Two months later, at appellants parole revocation hearing, Tony suddenly remembered that Barrios, the dead man, was driving. Yet Tony did not contact the police or the prosecution to provide them with this crucial piece of information. It is highly unlikely that a jury would believe exculpatory testimony from Tony that was inconsistent with his original statement to the police and was offered only to assist the defense.
Additionally, testimony from Contreras, i.e., that following entry of the verdict she spontaneously remembered creating a handwritten statement at appellants parole revocation hearing, would not diminish the force of the prosecutors point that she was biased and came forward only to benefit the defense. Contrerass credibility would not be substantially bolstered by uncorroborated testimony concerning a belatedly remembered prior consistent statement.
Most important, though, is the fact that the newly discovered evidence does not undermine or reduce the probative value of the Peoples proof that appellant was driving the Lexus when the accident occurred. McCains testimony that appellant said he was the driver immediately following the accident was the single most important piece of evidence in this trial. McCain reported this statement to the police. He did not know appellant and had no reason to lie. McCains testimony is bolstered by the hair and blood evidence found on the drivers headrest. Appellants lie to Maselli about the source of his injuries and his denial that he was in an accident demonstrate a consciousness of guilt and undermine the credibility of his trial testimony. When the entirety of the circumstantial evidence is evaluated, it provides compelling proof that appellant was the driver.
Accordingly, we conclude there is not a reasonable probability of a different result on a retrial and uphold denial of the new trial motion. (Turner, supra, 8 Cal.4th at pp. 212-213 [upheld denial of new trial motion where different result not probable on retrial]; Delgado, supra, 5 Cal.4th at pp. 328-329 [same].)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Ardaiz, P.J.
Gomes, J.