Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCR017162 Jennifer R. S. Detjen, Judge.
Tom Stanley for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gomes, J
After sheriff’s deputies initiated a nighttime vehicle stop for a possible driving under the influence and an expired registration tag, driver Octavio Chavez Mendoza at first drove away, but then he stopped and fired a shot at a deputy. After exchanges of gunfire and a series of pursuits, Mendoza fled on foot and deputies found his brother, passenger Jose Chavez, dead in the car. A jury found Mendoza guilty of the provocative act murder of Chavez and guilty of the attempted murders of both deputies. On appeal, Mendoza argues prejudice from various rulings on evidence, instructions, and new trial motions. We affirm.
BACKGROUND
On August 20, 2004, the district attorney filed an information charging Mendoza with the murder of Chavez (count 1; Pen. Code, § 187, subd. (a)) and the attempted willful, deliberate, and premeditated murders of Luis Padgett and Jeffrey Thomas, both of whom were peace officers engaged in the performance of their duties (counts 2 & 3, respectively; §§ 187, subd. (a), 189, 664, subds. (e), (f)), on December 3, 2003. The information alleged personal and intentional discharge of a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)) in count 1 and personal and intentional discharge of a firearm (§ 12022.53, subd. (c)) and personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) in all three counts.
Later statutory references are to the Penal Code unless otherwise noted.
On October 4, 2007, the court granted Mendoza’s motion for judgment of acquittal of first degree murder. On October 10, 2007, the court granted his motion for judgment of acquittal of the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury or death.
On October 17, 2007, a jury found Mendoza guilty of the second degree murder of Jose Chavez and of the attempted willful, deliberate, and premeditated murders of Padgett and Thomas and, in addition, found true the allegations that Padgett and Thomas were peace officers engaged in the performance of their duties and that Mendoza personally and intentionally discharged a firearm and personally used a firearm in all three counts.
On August 11, 2008, the court imposed an aggregate determinate term of 60 years consecutive to an aggregate indeterminate term of 45 years to life calculated as follows:
Count 1: Fifteen years to life for the second-degree murder of Chavez consecutive to a term of 20 years for personal and intentional discharge of a firearm (§ 12022.53, subd. (c)) consecutive to a term of 10 years (aggravated term) for personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) with stays of the latter two enhancements (§ 12022.53, subd. (f));
Count 2: A consecutive term of 15 years to life for the attempted willful, deliberate, and premeditated murder of Padgett consecutive to a term of 20 years for personal and intentional discharge of a firearm (§ 12022.53, subd. (c)) consecutive to a term of 10 years for personal use of a firearm (§ 12022.53, subd. (b)) consecutive to a term of 10 years (aggravated term) for personal use of a firearm (§ 12022.5, subd. (a)) with stays of the latter two enhancements (§ 12022.53, subd. (f)); and
Count 3: A consecutive term of 15 years to life for the attempted willful, deliberate, and premeditated murder of Thomas consecutive to a term of 20 years for personal and intentional discharge of a firearm (§ 12022.53, subd. (c)) consecutive to a term of 10 years for personal use of a firearm (§ 12022.53, subd. (b)) consecutive to a term of 10 years (aggravated term) for personal use of a firearm (§ 12022.5, subd. (a)) with stays of the latter two enhancements (§ 12022.53, subd. (f)).
DISCUSSION
1. Evidentiary Rulings
Mendoza argues prejudice from the court’s denial of his motions to present additional evidence that he was left-handed and to present new evidence that the sheriff’s public information officer characterized the gunfire differently than did the deputies at trial. The Attorney General argues that the court’s rulings were neither erroneous nor prejudicial.
First, we summarize the record on the issue of the court’s denial of Mendoza’s motion to present additional evidence that he was left-handed. In a demonstration in which he used his right index finger to pull the trigger, Padgett testified as a defense witness on direct examination that Mendoza fired the gun at him in that way. Mendoza’s attorney immediately called to the stand Mendoza’s former girlfriend, who testified that she lived with him for three or four years and that he was left-handed. She testified that she saw him eat, drink, and throw a ball with his left hand. Afterward, a juror sent the court a note asking, in light of her testimony, “can the defendant sign his full name using his left hand and that signature be compared to his previous signature(s) in record[?]” Informing counsel that the note was marked as a court’s exhibit, the court added, “I’m only sharing it with the attorneys. I don’t plan on doing anything more than that, other than that just to let you know that note was written.”
Later, the prosecutor asked Mendoza on cross-examination to draw the vehicle stop on a blank sheet of paper and then to write his initials on the left corner of that piece of paper. “For the record, your Honor,” the prosecutor stated, “he’s writing something on the left corner with his right hand.” The court responded, “The record will so reflect.” On redirect examination, Mendoza testified, “I’m left-handed, but I do write with my right hand.” He said he wrote with his right hand because his brothers were right-handed, he was the only one who was left-handed, and his brothers and the other kids in school laughed at him for that. He denied doing anything with his right hand other than write. On recross examination, he testified he had been writing with his right hand since about age seven.
In rebuttal, the prosecutor called to the stand a sheriff’s lieutenant who had testified on direct examination to finding foot impressions in the dirt near the site of Mendoza’s arrest. On rebuttal, he testified as a firearms expert to weak wristing -- a phenomenon that occurs when a shooter who has built muscle memory by repetitive shootings with the dominant hand uses the weak hand to shoot. The problems weak wristing can cause include loss of accuracy and weapon malfunction, especially when firing a semiautomatic weapon. In his opinion, a left-handed driver would use his right hand to fire a semiautomatic weapon out the driver’s window to his left and behind him because using the left hand would require him “to probably turn partially around in the seat as well as lean forward to get past the door pillar that’s on the left.”
The issue of the additional evidence Mendoza sought to introduce arose from the following colloquy among court and counsel:
“THE COURT: Any surrebuttal [sic], [Mendoza’s attorney]?
“[MENDOZA’S ATTORNEY]: Your Honor, I call Eugenio Ramirez.
“[PROSECUTOR]: Your Honor, may we approach?”
After the court excused the jury for a recess, the colloquy continued as follows:
“[PROSECUTOR]: Your Honor, I could be mistaken, but I don’t recall a Eugenio Ramirez on the witness list and I’m objecting.
“THE COURT: All right. [Mendoza’s attorney].
“[MENDOZA’S ATTORNEY]: He is not on the witness list. However, he is an individual that I interviewed over the recess this morning. He’s a friend of Octavio Mendoza’s family. They grew up near each other in Mexico. He would testify to the fact that Mr. Mendoza is left-handed in playing ball and doing everything that he observed back then and he resides here and that’s what I’m offering to have him testify.”
After the court and counsel tacitly agreed Ramirez had not been present in the courtroom, the colloquy continued as follows:
“THE COURT: How is that surrebuttal [sic] evidence? That evidence was put on in your case, [Mendoza’s attorney], and the People put on evidence that the defendant can write with his right hand. How does the fact that the defendant can throw with his left hand, how is that surrebuttal [sic] evidence?
“[MENDOZA’S ATTORNEY]: The inference of the People’s cross-examination of Mr. Mendoza was that he is right-handed and although Mr. Mendoza testified explaining that he writes right-handed and does everything else left-handed, I think we have a right to bring in additional evidence to rebut that inference that the People were trying to raise by having him draw that drawing with his right hand.
“THE COURT: The People established he writes with his right hand.”
After determining that the source of Mendoza’s testimony about drawing with his right hand arose not on redirect examination during the prosecution’s case but on cross-examination during the defense case, the court concluded the colloquy as follows:
“[MENDOZA’S ATTORNEY]: Well, then I’m asking to re-open the defense case for that purpose.
“THE COURT: All right. That request is denied. And I’ll tell you why. It is just purely cumulative to what you’ve already put on. And [the prosecutor] demonstrated -- actually the defendant demonstrated in response to [the prosecutor’s] questions that he writes with his right hand. So the evidence has shown he writes with his right hand and throws with his left hand.”
In his opening argument to the jury, the prosecutor challenged Mendoza’s credibility about using his right hand:
“He led you to believe that he did everything with his left hand and it was only when I asked him to draw the cars that you saw that he could draw with his left hand -- right hand. He testified that, well, he writes with his right hand, but that was because he was teased. Well, if he was teased wouldn’t he do everything with his right hand? Regardless of whether he is left or right-handed, he wanted you to believe he did nothing with his right hand.”
In his argument to the jury, Mendoza’s attorney sought to downplay the prosecutor’s demonstration before the jury that Mendoza wrote with his right hand:
“Now, something was made about [him] indicating that he would sign his name with his right hand. This is supposed to be the proof that he is really right-handed I guess. Picasso maybe, but certainly nothing in the any sort of realistic picture. I mean, that is certainly not evidence of much ability with your right hand. He said he was teased when he was a kid because he was left-handed and everybody else was right-handed. And I think we have the testimony from [his girlfriend] who lived with him for three years who said that he was left-handed, he did everything left-handed. He played ball with her kids left-handed. I think that this drawing is kind of a red herring because it really does not establish anything in terms of whether he is actually right-handed or has good facility with his right hand.”
In his closing argument to the jury, the prosecutor discussed the evidence about whether Mendoza was left-handed or right-handed and about whether he used his left hand or his right hand to shoot at Padgett:
“There is a lot been made by the defense of whether or not [Mendoza] is left-handed in this case or right-handed. And in my argument previously to you I said what is important about what happened when [Mendoza] was at the witness stand is that he wrote with his right hand and he didn’t want you to know that. Everything he testified to and [his girlfriend] that he does everything with his left hand and all of a sudden we find out he writes with his right hand. But we know at least he can write with his right hand and that would give him better motor skills with his right hand than the average left-handed person.
“Second, it is impossible for any left-handed person who wants to shoot a police officer while he’s sitting in the car and the police officer is behind him and to his left, it is impossible to pull the trigger without making a lot of contortions with your left hand. As [the sheriff’s lieutenant] had testified, in that situation, left-handed or right-handed, you are going to pull the trigger with your right hand.
“The evidence -- there is some evidence that is consistent with a left-handed person using his right hand. The gun jammed. [The sheriff’s lieutenant] testified about weak wristing. Limp wristing. And that is when an individual uses his less dominant hand to fire a semi-automatic weapon. And because they don’t hold the gun firmly enough when they pull the trigger, the recoil of the gun doesn’t happen correctly, which causes the slide to malfunction and causes a jam. That’s why he said his deputies and the investigators from the D.A.’s Office train with their left hand. And here the 9mm weapon [found in Mendoza’s car] jammed.”
Second, we summarize the record on the issue of the court’s denial of Mendoza’s motion to present new evidence that Erica Stuart, the sheriff’s office public information officer, characterized the gunfire differently than did the deputies at trial. Before trial, the court granted a defense motion for discovery of the tape recordings of interviews of both Padgett and Thomas on the day after the charged crimes. During trial, out of the presence of the jury, Mendoza’s attorney brought to the court’s attention two articles in the local newspaper reporting that Stuart said both occupants of the car opened fire at the same time. The prosecutor replied that he does not trust half of what he reads in the newspaper, that Stuart never interviewed the officers, that he was present when she talked with the press, and that she never said what the articles attributed to her. On the request of Mendoza’s attorney, the court ordered a hearing out of the presence of the jury.
At the hearing, Stuart acknowledged that she said both occupants of the car opened fire at the same time. She testified that before she talked with the press she was briefed by “someone in authority” who could have been “a detective, possibly a lieutenant. Could have been the undersheriff. And I don’t remember.” She spoke with neither Padgett nor Thomas. She takes notes on her briefings, but after she talks with the press she throws her notes away.
After Stuart testified, counsel argued the matter. Mendoza’s attorney characterized her testimony as “potentially impeaching information because it differs from the account given by the deputies.” He requested the presentation of her testimony to the jury, by stipulation or otherwise, or “dismissal or some other appropriate sanction” on the ground that the evidence was “impeachment information that is exculpatory under Brady.” The prosecutor declined to stipulate, emphasized that Padgett’s and Thomas’s interviews were both recorded, and opined “that she just took what whoever was telling her, who did not talk to the deputies, and jumped to some conclusions.” Observing that “one would speculate this is secondhand information, but it could be third hand or fourth hand or fifth hand information that she had,” the court characterized the defense proffer as “unreliable hearsay” and denied the defense motion.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
In reliance on, inter alia, Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) and Davis v. Alaska (1974) 415 U.S. 308 (Davis), Mendoza argues that the court’s rulings violated his constitutional right to present evidence. We disagree. The defendant has a constitutional right “to present all relevant evidence of significant probative value to his defense.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553.) Mendoza’s girlfriend and Stuart, the witnesses at issue, “rather than being ‘crucial’ (Davis[,] supra, [] at p. 310),” were “minor in the context of the entire case.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1052.)
Even if we were to assume, without deciding, that the court erred by denying the proffered evidence, the error was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-308; Chapman v. California (1967) 386 U.S. 18, 24.) The additional evidence about left-handedness was cumulative to evidence already in the record that Mendoza writes with his right hand and throws with his left hand. The new evidence about Stuart was intrinsically speculative. “Chambers does not stand for the proposition that due process requires admission of any hearsay statement made under circumstances demonstrating some trustworthiness or reliability.” (People v. Garcia (2005) 134 Cal.App.4th 521, 539, first italics in original, second italics added.)
2. Instructional Rulings
Mendoza argues prejudice from the court’s denial of his request for instructions on duress, necessity, self-defense, and imperfect self-defense. The Attorney General argues that the court’s rulings were neither erroneous nor prejudicial.
First, we summarize the prosecution evidence. After Padgett initiated a vehicle stop with his emergency lights for a possible driving under the influence and an expired registration tag, Mendoza drove his car to the shoulder of the county road, but as Thomas opened the door of the patrol car Mendoza sped away without stopping. With his emergency lights and siren on, Padgett gave chase for about four miles until Mendoza stopped, but as Padgett started to get out of the patrol car Mendoza again sped away.
With his emergency lights and siren still on, Padgett gave chase for about another two-and-one-half miles until Mendoza left the county road, drove down a dirt road, and stopped next to an orchard. Padgett stopped the patrol car about four or five feet behind Mendoza’s car, which he approached with a flashlight in one hand and a.40-caliber Beretta semiautomatic handgun in the other, and repeatedly yelled, “Show me your hands,” but there was no response. After advising dispatch of the vehicle stop, Thomas got out of the patrol car and approached Chavez’s side of Mendoza’s car. From about three feet away, Padgett saw the tops of handguns between Mendoza’s and Chavez’s legs. “Drop the gun,” he yelled, as he stepped back from Mendoza’s car. Mendoza fired a round at him through the closed window. The bullet shattered the window but missed Padgett.
Padgett and Thomas both fired.40-caliber Beretta semiautomatic handguns through the back window at Mendoza’s side of the car. Padgett saw Chavez’s door open and told Thomas to watch him. Thomas saw Chavez holding his arms together in front of his body and swinging his arms toward him as if holding a gun. Padgett saw a muzzle flash shoot back from Chavez toward Thomas. Padgett and Thomas both fired at Chavez.
Mendoza’s car again started to move, so Padgett and Thomas got back into the patrol car and followed him as he drove down one dirt road after another until he stopped next to the orchard again. Padgett stepped out of the patrol car and drew his Colt M-4 rifle. Thomas stepped out of the patrol car and drew his handgun. Padgett said, “Let me see your hands. Stop the vehicle. Sheriff’s Department,” but there was no response. Padgett fired his rifle at Mendoza’s side of the vehicle and, hoping to disable the car, at the front and rear driver’s side tires, but Mendoza again started driving. Padgett and Thomas got back into the patrol car and followed him.
Mendoza drove another 50 to 100 yards but stopped as another patrol car with emergency lights on approached from the other direction. Mendoza climbed over Chavez, went out Chavez’s window, and ran into the orchard. After Padgett reloaded his rifle, he and Thomas approached Mendoza’s car, looked inside, and saw Chavez, dead in the passenger seat.
Next, we summarize the defense evidence. Mendoza testified he intended to stop after he saw the emergency lights of the patrol car but Chavez pushed a gun into his side and told him, “Don’t stop.” He testified he stopped later but Chavez told him, “Keep going. Do not stop,” and threatened him with the gun, so he started driving again. He testified he stopped again only after Chavez told him, “Stop here.” He testified he intended to run into the fields because he was in fear of his brother and the deputies behind him, but a deputy shot him as soon as he stepped out of the car, so he started driving again. He denied firing a gun. He testified he was 29 years old, Chavez was 20 years old, and Chavez was calling the shots that night.
Our analysis begins with the colloquy at the instruction-settling conference. Mendoza requested CALCRIM Nos. 3402 (“Duress or Threats”), 3403 (“Necessity”), 3470 (“Right to Self-Defense or Defense of Another (Non-Homicide)”), and 505 (“Justifiable Homicide: Self-Defense or Defense of Another”). As to all four instructions, the court noted he “testified that he didn’t fire at anyone” and asked his attorney “why these instructions should be given.” He replied that “there is, although not charged, … testimony that he drove off because his brother had threatened him and he was under duress in terms of driving off.”
With reference to CALCRIM No. 3402, the court inquired, “How do you propose that instruction read? It starts: The defendant is not guilty of blank if he acted under duress. What should be in that blank?” Mendoza’s attorney characterized the car chase as “a potential provocative act leading to the shooting.” Noting that “the provocative act is firing at Officer Padgett,” the court asked, “Is there any evidence in this case that these officers fired their weapons because the defendant failed to yield?” The prosecutor replied in the negative. Mendoza’s attorney replied, “At the second stop they fired because the -- with no firing coming from either vehicle -- I mean from the [defendant’s] vehicle because the defendant, according to the testimony, failed to yield, was moving around in the vehicle. And….”
In relevant part, CALCRIM No. 3402 provides: “The defendant is not guilty of _________________ if (he/she) acted under duress. The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s]. The demand or request may have been express or implied.”
The court asked for comment from the prosecutor. With reference to CALJIC Nos. 3402 and 3403 alike, he replied, “I don’t see any relevance unless he was charged with failing to yield or 2800 of the Vehicle Code. With respect to the other two, the defense’s -- the defendant’s own testimony is he did nothing wrong.” Mendoza’s attorney noted, “Well, his testimony is that he did not yield to the officers because he was under duress from his brother.”
In relevant part, CALCRIM No. 3403 provides: “The defendant is not guilty of _________________ if (he/she) acted because of legal necessity.”
At that juncture, the court turned to CALCRIM No. 3470. “You are requesting that the Court instruct the jury that the defendant is not guilty of blank if he used force against the other person in lawful self-defense. What do I put in that blank? He’s not guilty of what?” Mendoza’s attorney replied:
In relevant part, CALCRIM No. 3470 provides: “Self-defense is a defense to ___________________ . The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another).”
“Your Honor, what I’m trying to get at here is I believe there is a way of looking at this evidence that pursuant to Mr. Mendoza’s testimony Deputy Padgett fired his weapon prior to any other shots being fired and there is testimony that at some point the passenger was firing his weapon and I believe the actions of the passenger in that regard were arguably in self-defense of himself or Mr. Mendoza and this is all tied up in the provocative act that is supposedly set in motion by Mr. Mendoza and I think the defense -- a way of looking at the defense is that what really happened here was Deputy Padgett fired setting in motion the shooting by Deputy Thomas and if Jose Chavez was firing he was acting in reasonable self-defense and not as part of the provocative act that in the course of events that Mr. Mendoza had set into motion.”
In relevant part, CALCRIM No. 505 provides: “The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (self-defense/ [or] defense of another).”
The prosecutor opined “that if the jury believes the defendant’s testimony he’s guilty of nothing and these instructions are unnecessary because the defendant says he did nothing. The only thing he did was flee and that was under the duress of his brother. He’s not charged with that.” Mendoza’s attorney replied, “He’s charged with setting in motion this entire scenario, including the actions of his brother,” to which the prosecutor added, “With intent.” After the prosecutor added, “With intent,” the court continued the colloquy to the next day, when Mendoza’s attorney proffered written modifications of three of his requested instructions, in each of which he made “murder by provocative act” the crime at issue. (CALCRIM Nos. 3402, 3403, 3470.)
After additional argument by counsel, the court found evidence in the record warranting self-defense and imperfect self-defense instructions on the attempted murder of Thomas. Solely as to that count, the jury received modified versions of CALCRIM No. 571, authorizing the jury to find him guilty of the lesser included offense of attempted voluntary manslaughter if Chavez attempted to kill him in imperfect self-defense or imperfect defense of another, and of CALCRIM No. 3470, authorizing the jury to find him not guilty of attempted murder if Chavez used force in lawful self-defense or lawful defense of another.
“A trial court is required to give a requested instruction on a defense only if substantial evidence supports the defense.” (People v. Panah (2005) 35 Cal.4th 395, 484, citing In re Christian S. (1994) 7 Cal.4th 768, 783.) Our review of the record satisfies us that substantial evidence supported none of Mendoza’s requested instructions other than those the court gave.
3. New Trial Motion Rulings
Mendoza argues prejudice from the court’s denial of his motion for a mistrial on the grounds that the evidence about the sheriff’s public information officer betrayed a discovery violation and that the court’s reply to a jury question about a gunshot wound adversely impacted his credibility. The Attorney General argues that the court’s rulings were neither erroneous nor prejudicial.
Insofar as Mendoza seeks relief on the ground of evidence about the sheriff’s public information officer, he basically restates his argument claiming prejudice from the court’s denial of his motion to present new evidence that she characterized the gunfire differently than did the deputies at trial. (Ante, part 1.) As we rejected his argument in the context of proffered evidence, so we reject his argument in the context of a new trial motion. Brady requires disclosure only of evidence favorable to the accused and material either to guilt or to punishment. (People v. Roberts (1992) 2 Cal.4th 271, 330, citing United States v. Bagley (1985) 473 U.S. 667, 674.) Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the trial would have been different. (Roberts, supra, at p. 330, citing Bagley, supra, at p. 682.) Our review of the record satisfies us that the court’s denial of his new trial motion on the ground of new evidence about the sheriff’s public information officer was neither erroneous nor prejudicial.
Insofar as Mendoza seeks relief on the ground of the court’s reply to a jury question about a gunshot wound, the record shows he testified that deputies shot him three times, once on the left side under his shoulder after he stopped for the first time and once on his right arm and once on the back of his head after he stopped for the second time. Emphasizing Mendoza’s display to the jury of the scar on his left side, his attorney argued that the wound was consistent with his testimony that he was shot after he put his foot out the door to leave the car. In rebuttal, the prosecutor argued that Mendoza made up that story “to be consistent with his injury, but there are a number of ways [he] could have gotten that injury,” one of which was that, since “he was shooting,” he could not have been facing the windshield “the whole time.”
During deliberations, the jury sent the court a note asking, “Is there testimony by the attending medical personnel or others of a wound to the left rib cage of the defendant or to the left underarm of the defendant prior to the defendant’s testimony?” After the court proposed answering the jury’s question, “No,” Mendoza’s attorney objected on the ground that the answer was “incomplete because it implies there was no medical treatment given.” The court replied, “No, it doesn’t imply that at all. It just answers their question,” and answered the jury’s question, “No.”
Mendoza’s new trial motion attached hospital records confirming a bullet wound to his left side, sought relief on the ground of newly discovered evidence, and intimated ineffective assistance of counsel. His attorney acknowledged that Mendoza testified to the wound on his left side and showed the jury his scar, and the prosecutor emphasized that he neither introduced evidence to the contrary nor argued the point, but his attorney argued that the hospital records would enhance Mendoza’s credibility about “[his] version of the facts.” The court voiced skepticism that the hospital records “would have much effect on the outcome of the case” but nonetheless, at his attorney’s request, appointed the public defender on the “limited issue regarding medical reports.” The public defender reported to the court that the issue was not whether Mendoza’s attorney rendered ineffective assistance of counsel but whether the hospital records would have reasonably led to a more favorable verdict.
The prosecutor’s opposition to the new trial motion emphasized that the bullet wound to Mendoza’s left side was never in dispute and argued that the hospital records were not newly discovered evidence. On those grounds, the court denied the motion.
The rule is settled that a new trial motion on the ground of newly discovered evidence is disfavored and that a denial of the motion will not be disturbed on appeal unless a clear abuse of discretion is shown. (People v. McDaniel (1976) 16 Cal.3d 156, 179.) Mendoza fails to make the requisite showing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J. Poochigian, J.