Opinion
F071954
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. DEE WALTER MITCHELL, JR., Defendant and Appellant.
Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Rebecca Whitfield and Kathleen McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1437511 )
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Rebecca Whitfield and Kathleen McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
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In March 2012, Dee Walter Mitchell, Jr. was charged in count 1 with special circumstance murder (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A)) and in count 2 with attempted robbery (§§ 664, 211). It was further alleged as to both counts that Mitchell personally discharged a firearm causing death (§ 12022.53, subd. (d)). Codefendant Lavell Whitfield was also charged with special circumstance murder and attempted robbery and that he was armed with a firearm during the offenses, but he pled guilty and was not tried with Mitchell.
All further statutory references are to the Penal Code unless otherwise stated.
We grant Mitchell's request to take judicial notice of the record on appeal in case No. F067246, which contains the record of Mitchell's trial and the facts underlying his conviction.
In September 2012, Mitchell was found guilty by jury as charged and all allegations found true.
In March 2013, Mitchell filed a motion for a new trial based on newly discovered evidence indicating another person was the shooter and he was not involved in the shooting. The new evidence, a letter which Mitchell received from a Stephen Johnson, indicated that a Deshawn Woody had confessed to shooting the victim Martin Ham and told Johnson that Mitchell "didn't shoot" and was not present with Woody and Whitfield when Ham was shot.
Mitchell's trial counsel subpoenaed Johnson to appear at the April hearing for a new trial. However, when Johnson failed to appear for the hearing, defense counsel requested a continuance and a bench warrant to compel Johnson's attendance. The trial court denied the request to continue the matter, noting it had no assurance Johnson would ever testify. The trial court then denied the motion for new trial finding, inter alia, that the proffered evidence was insufficient to "change the outcome of the case." Mitchell was sentenced to life without the possibility of parole on the murder, plus a consecutive 25-year-to-life term for the firearm enhancement. His sentence on the attempted robbery and attached enhancement was stayed pursuant to section 654.
Following an appeal, we affirmed the jury's verdict, but vacated the trial court's order denying the motion for new trial, conditionally reversed the judgment and remanded the case for another hearing on the motion for a new trial to allow Mitchell time to obtain witness Stephen Johnson's testimony in support of Mitchell's new trial motion. (People v. Mitchell (Dec. 23, 2014, F067246) [nonpub. opn.].)
On remand, Mitchell filed an amended notice of motion for new trial, which was heard in June 2015. Multiple witnesses, including Johnson, testified. The trial court then denied the new trial motion.
Mitchell now appeals from the denial of this motion.
STATEMENT OF THE FACTS
We take the statement of facts from our unpublished opinion in People v. Mitchell, supra, F067246.
Ham's Shooting
On October 8, 2011, at approximately 4:00 p.m., Ham was selling ice cream from a cart attached to his bicycle. He was shot and killed after two African-American males attacked him. Ham died from a single gunshot to the lower portion of his left chest. The bullet then exited his body, but was not recovered. However, a .380-caliber shell casing was found at the scene of the shooting.
Three witnesses saw the attack.
Anthony Morrell-Pardee heard a "popping" noise and saw two African-American males and Ham running around in the street. He looked the other way after deciding that they were "messing around" but then he heard another "pop" and looked again. He saw one of the African-American males, who was short and slender, pointing a gun while the other bigger male chased Ham. The gunman appeared to aim the gun at Ham, and then Morrell-Pardee heard another pop and saw some smoke. The shooter then turned around and jogged slowly into a nearby alley while the bigger male continued to attack Ham, punching and grabbing at him. Ham tried to get on his bicycle, but the bigger male grabbed the handlebar and started hitting Ham in the side of his face repeatedly. The larger male then ran into the same alley as the shorter man, while Ham was grabbing or patting his chest or abdomen and asking for help. In court, Morrell-Pardee did not identify Mitchell as the shooter and he explained that he only saw a profile of the shooter's face.
Armando Mendoza heard a gunshot and then heard someone say either, "Finish him" or "Kill him" or "Shoot him." He then heard a second gunshot and saw two African-American males running toward the alley. Mendoza could not describe the two men he saw running. He never identified Mitchell as the shooter.
Theresa Kirkland saw two men "tussling with the ice cream man." The shorter of the two men was ripping at Ham's pockets, while the taller of the two men pulled on Ham's arm. The two men then ran across the street, stood there, and then the shorter male told the taller male to shoot Ham. The taller male pulled a gun out of his right pocket and shot it two or three times, hitting Ham. The taller male then passed the gun to the shorter male, who shot the gun one time. Ham then fell to the ground.
Kirkland testified that Mitchell was not one of the males that she saw involved in Ham's shooting. Police are led to Mitchell and Whitfield
A.S., who was in the eighth grade when he testified, resided in the neighborhood where Ham was shot. On the night of the shooting, A.S. saw two males standing on the front porch of his neighbor's house. He knew that his neighbors were not home, which caused him to notice the two males. He saw the two males walk away at a fast pace, and they kept looking back over their shoulders. A.S. went inside and told his aunt, who notified law enforcement.
This person is identified by initials in accordance with our Supreme Court's policy regarding protective nondisclosure of minors' identity.
Police responded to A.S.'s location to talk to him. A.S. told the police that he thought he recognized one of the two males as a "Chris" who had been "hanging out" at a house on the corner of Martin Luther King and Maple Street. Police then drove A.S. to that location as a "driveby" and they saw a group of subjects standing on a driveway, which was later identified as 200 Martin Luther King Drive, Unit A. This was Mitchell's residence.
Police officers staked out a perimeter at Mitchell's residence. Sometime that same night, detectives went to the front door and knocked. At or around the same time, an officer positioned in the back of Mitchell's residence heard a bang, like a heavy object hitting a wooden fence. Police discovered a .380-caliber handgun along the fence of Mitchell's residence with the magazine still in it containing four unfired rounds. At trial, however, a police firearms expert was unable to say whether or not the .380-caliber casing found at the shooting scene had been fired from this particular weapon.
Police made contact with Mitchell at the front door of his residence. They spoke with Mitchell outside his residence for approximately 30 minutes before he allowed them to enter. Police found Whitfield in the back of the house approximately 40 minutes after they first knocked on the front door. Police took both Mitchell and Whitfield into custody that night.
Later that same night, police drove A.S. back to 200 Martin Luther King Drive, Unit A, to identify Whitfield and Mitchell. It was dark when the viewing occurred and A.S. remained in the police vehicle. The police shone the vehicle's lights on the first individual, whom A.S. recognized by his hair as the "bigger" of the two males he saw earlier that day. A.S., could "not really" identify the second male that he was shown because he did not see his face. A.S., however, after seeing the second male told police, "Yeah, that's him." A.S. identified the second male because his skin tone was lighter than the other male's skin tone.
In court, A.S. could not identify Mitchell as being one of the males he saw on October 8, 2011. Forensic Evidence
There were no latent fingerprints on the recovered handgun and no gunshot residue was detected on either Mitchell or Whitfield. Mitchell's DNA, however, was discovered on the recovered gun as a "major contributor" while Whitfield's DNA was not identified on the gun. One shoeprint impression near the scene of the shooting had the same general pattern and size as the size 14 Creative Recreation shoes which Whitfield wore that day, but the findings were inconclusive. Another impression was "most likely" made by the red Vans shoes later found in Mitchell's house, which Whitfield saw Mitchell wear during the shooting and which Mitchell admitted to police were his. However, it was not "absolutely positive" that Mitchell's shoes caused the impression.
During a search of Mitchell's residence, police located and seized several cellular telephones. Police identified one of the phones as belonging to Mitchell and subpoenaed Mitchell's cell phone records. The records contained text messages from Mitchell's cell phone.
Two days before Ham's shooting, Mitchell texted multiple people looking to purchase a gun. The day before the shooting Mitchell texted Manuel Retana asking for a gun and indicated he could pay $300. Later that same day, Retana texted Mitchell that he had a gun for him and Mitchell sent his uncle to pick it up. Retana texted Mitchell later that same day indicating that he gave the gun to Mitchell's uncle, texting "Thr u go, man. B easy, G."
On the day before Ham's shooting, Mitchell texted a "Markus L." indicating that he needed the clip from his old gun and he had the same kind, a ".380" caliber gun. On the morning of Ham's shooting, Mitchell texted a "Mando" asking for .380 bullets and that he needed them "ASAP." Mitchell also texted "Markus" early in the morning on the day of the shooting and indicated he was trying to hit a "lick"--which is street slang for a robbery.
Cell phone towers placed Mitchell's cell phone in the general area of the shooting at the time Ham was shot. Whitfield's Trial Testimony
Detectives interviewed Whitfield early in the morning after the shooting, starting at 2:20 a.m. Two days after the first interview, detectives interviewed Whitfield a second time.
Before trial, in May 2012, Whitfield signed a plea agreement with the prosecution to testify against Mitchell in exchange for a guilty plea and a sentence of 13 years eight months in prison.
At trial, Whitfield told the jury that he and Mitchell walked to West Side Market in the afternoon on the day of the shooting. On the way back from the market they saw Ham. Mitchell told Whitfield to hurry and catch Ham, but Ham turned around and came back. Mitchell then told Ham to empty his pockets. Ham began to curse at them, and he sounded drunk. Whitfield stated he had often seen Ham drunk before.
Ham had a blood-alcohol content of .31 at the time of his death.
Ham dismounted his bicycle and was about five feet away from Whitfield, and Mitchell was about the same distance away but to the side and on Whitfield's right. Whitfield punched Ham because Ham cursed at him.
Whitfield heard a gunshot, reacted by looking around, and he saw a gun in Mitchell's hand. Mitchell held a black gun up with an extended, straight arm at shoulder level. Whitfield identified the gun in court (People's exhibit 58) as being the gun that Mitchell held in his hand.
After the gunshot, Ham "backed up and moved his cart." The first shot missed Ham, but the gun then went off again and Whitfield heard Ham scream. Mitchell ran down an alleyway and Whitfield followed. They ran through a yard and several streets until they came to Whitfield's house, where Whitfield changed his pants and shoes. Mitchell then left Whitfield's house and Whitfield stayed behind talking on the telephone with his cousin for 30 or 40 minutes. Whitfield met Mitchell later that day near the crime scene and they saw police lights and yellow tape. Whitfield went back to his house for 10 to 15 minutes while Mitchell waited for him near the crime scene. The two then went back to Mitchell's house where Mitchell changed his clothes.
While they were both at Mitchell's house the police arrived and knocked on the front door. After hearing the police, Whitfield walked to the back of the house to the only bedroom. Mitchell was already in that back bedroom. Whitfield watched as Mitchell opened the bedroom window, tore open the screen, and threw a gun out the window.
After throwing the gun out the window, Mitchell then walked out of the bedroom. Whitfield stayed behind and he did not hear any of the conversation with the police. Whitfield remained in the bedroom for about 20 minutes or longer before he left and encountered the police.
Later that night, the police interviewed Whitfield at the police station. He testified that he was not truthful during that first interview when he had initially denied seeing anything about Ham's shooting. Whitfield then had a second interview with police a couple days later at juvenile hall. He testified that he was more truthful during his second interview. Whitfield said that he never discussed a plea agreement with the police during either of these two interviews.
Whitfield testified he touched Mitchell's black gun a couple of days before the shooting after Mitchell gave it to him to hold. He denied knowing Mitchell was carrying a gun when he and Mitchell walked to the market before encountering Ham. He also denied that Mitchell talked to him about his plans.
Whitfield recalled that Mitchell wore red Vans with white soles and white shoelaces on the day of the shooting, but on cross-examination he could not describe any other article of clothing that Mitchell wore that day.
On cross-examination, Whitfield agreed he had to tell the jury the same thing he told the officers in order to comply with the plea agreement. In addition to the guarantee of a reduced sentence, Whitfield testified he received some special favors on the day he signed the agreement--he was able to eat fast food and the police attempted to arrange a special visit for him with his family.
Whitfield denied chasing Ham or wrestling with him before the shooting.
On rebuttal, Whitfield reiterated he was telling the truth and not just repeating what he told the police in order to get the plea deal. Whitfield agreed that, from the very beginning, he said his fingerprints would not be on the gun, that he did not hold the gun when Ham was shot, and he did not throw the gun out of the window. Whitfield denied that he told the officers "what they wanted to hear" just so he could go home.
DISCUSSION
Mitchell contends the trial court erred when it denied his motion for a new trial based on newly discovered evidence, because it was probable that at least a single juror would have voted for acquittal had the new evidence been introduced. We disagree. New Trial Motion and Hearing
In June 2015, Mitchell brought an amended motion for a new trial based on newly discovered evidence. In the motion, Mitchell argued that a letter written by Johnson and two letters written by Whitfield constituted new evidence that would persuade at least one juror to vote not guilty.
a. Evidence Presented
The letter written by Johnson implicated someone named DeShawn Woody and Whitfield in the shooting. In the first letter written by Whitfield, received by private investigator Warren Yates, Whitfield acknowledged physically assaulting the ice cream man, but claims neither he nor Mitchell fired, or had in their possession, the gun that killed the man. When Yates asked for clarification and more details on his claims, Whitfield wrote a second letter in which he again stated neither he nor Mitchell shot the victim, but that it was the District Attorney's job to find out who shot the ice cream man and it would be "out of the question" for him to say who it was.
At the June 2015 hearing on Mitchell's new trial motion, the defense called Johnson, who said he had known Mitchell for 12 years and knew Whitfield from the "streets." Johnson testified he was at a party in 2011 at the home of a friend named Johnae, who was Whitfield's cousin. Woody was also at the party and asked him where he could get some .380 bullets. Johnson said he had some and, after retrieving them from his mother's house, gave 15 of them to Woody. Whitfield was also present when Johnson gave the bullets to Woody, and Woody and Whitfield split the bullets. Both had guns and Johnson watched Woody load his half of the bullets into his gun. Johnson did not see Whitfield load any bullets into his gun.
Sometime later, after hearing about the ice cream man being shot, Johnson talked to Woody about the incident and Woody told him he "fucked up," without explaining what he meant by this. Woody was crying as he said this. But when Johnson was shown the letter he had written to Mitchell, stating Woody admitted the shooting, Johnson affirmed that what he had written in the letter was true: that Woody told him he felt bad because Mitchell was being wrongly blamed "for something" Woody and Whitfield "did by accident." Johnson then testified his conversation with Woody took place over the phone.
Johnson testified he did not come forward earlier with this information because "it wasn't [his] business." Johnson claimed Mitchell's conviction had nothing to do with his decision to write the letter, and he did not even know Mitchell had been convicted of Ham's murder. He also explained that the reason he failed to appear on his subpoena for the prior hearing on the motion for new trial was simply because he had "something going on" and did not have a way to get to court. At the time of his testimony, Johnson was on felony probation and had multiple convictions involving moral turpitude.
Woody testified that in 2011, at the time of the crime, he lived a few blocks from where the crime occurred. He described himself as five feet 10 inches tall and weighing about 165 pounds in October of 2011. Woody testified he had known Mitchell for four to five years and he was a friend of his, although he did not know his last name. He admitted that he knew two individuals brought into the courtroom for identification: Johnson ("Junior"), whom he had "seen around" in late 2010, and Whitfield ("Bam"), who "hung out" with Mitchell. Woody denied having been at a party with Whitfield where he asked Johnson for bullets. He stated he had not received any bullets, had not loaded any such bullets into a gun, denied ever having a gun, and denied having any conversation with Johnson about the shooting of an ice cream man. He denied telling Johnson he felt bad about Mitchell being in jail for something he and Bam had done. He denied being present when the ice cream man was shot.
The defense also called Whitfield to testify, but he invoked his Fifth Amendment right against self-incrimination and did not testify. As a result, Whitfield was found unavailable and the defense presented evidence of correspondence written between Investigator Warren Yates and Whitfield, written after Mitchell's trial. In the first letter written by Whitfield, he states that neither he nor Mitchell fired the shot that killed the ice cream man and that neither he nor Mitchell had a gun. Whitfield did acknowledge he "physically assaulted" the victim.
The defense offered into evidence the letter Investigator Yates had written to Whitfield in response, in which Yates asked Whitfield to tell him who the shooter was. He also asked Whitfield if he had been intimidated by the police into saying Mitchell was the shooter. Whitfield's response, which was also offered into evidence, repeated that he would not say who the shooter was, but he reaffirmed that it was neither him nor Mitchell.
The parties stipulated that, at the time Mitchell was booked into custody, he was five feet nine inches tall and weighed 170 pounds.
Over defense objection, Detective Robert Gumm testified for the prosecution that he was the officer who transported A.S. to the in-field identification of Whitfield and Mitchell. At the identification, A.S. was shown Mitchell, illuminated in the headlights of the police car, whom he immediately positively identified as one of the two men he saw running from the front yard of his neighbor's house. Following the identification of Mitchell, A.S. also positively identified Whitfield as the one "running behind the other guy." A.S. described to Gumm how Whitfield had to stop to catch his breath and bent over to put his hands on his knees. A.S. also said he saw Mitchell and Whitfield running through the front yard of the house directly across the street from him. The two men then crossed the street and ran on the sidewalk in front of him.
Defense counsel objected to Detective Gumm being questioned on the in-field lineup, stating it was duplicative of what had been produced at trial. The prosecutor argued Detective Gumm did not testify at trial on the in-field lineup and he was questioning him now on the lineup because defense counsel made A.S.'s identification of Mitchell an issue in his amended new trial motion.
On cross-examination, Detective Gumm agreed that A.S. was a block and around the corner from the crime scene when he saw Mitchell and Whitfield running. Gumm also agreed that a one-person in-field identification may be more suggestive to a witness than a lineup in which the witness is shown six persons and asked if the suspect is among them.
b. Argument Presented by Counsel
Defense counsel argued Mitchell was entitled to a new trial based on newly discovered evidence as provided by Johnson's testimony, which was that Woody told him Woody and Whitfield had the firearm and killed Ham, not Mitchell. Defense counsel noted that Johnson's testimony showed that Whitfield did, in fact, know Woody, something Whitfield denied at trial. According to defense counsel, this new evidence was consistent with the fact that Woody lived in the area of the shooting and that Woody matched the description of Mitchell, as both were five feet nine or 10 inches tall and weighed 165-170 pounds. Defense counsel also argued that Whitfield's letters provided new evidence as they contradicted his trial testimony and specifically stated Mitchell was not the shooter and did not have a firearm.
The prosecution argued against the motion, stating there was no new reliable or credible evidence to impeach the evidence and the jury's verdict at trial. The prosecutor described Johnson as not credible, in that he was a childhood friend of Mitchell's who wrote his letter after the verdict in September of 2012, "to suddenly recollect something that allegedly happened in October of [2011], which he admitted was during a time he was in Juvenile Hall." The prosecutor also noted Johnson's several convictions for moral turpitude and his failure to come to court when subpoenaed. Most telling, according to the prosecutor, was Johnson's statement that, when he asked Woody what had happened, he was crying and said he "fucked up," but did not say why, and yet, when questioned by defense counsel about the letter, was able to "miraculously refresh his recollection" and state Woody had told him he had killed the ice cream man.
The prosecutor noted that Woody, on the other hand, came to court, testified he never had a gun and never had any bullets, and he had no criminal history and "no impeachment statements." When asked to identify Whitfield, whom Woody referred to as Bam, Woody said he didn't really know him, did not hang out with him and could not remember the last time he had seen him, which was not inconsistent with Whitfield's testimony at trial that he did not know anyone name Woody.
The prosecutor questioned the authenticity of Whitfield's letters, noting the inconsistencies with the signatures on the letters from more recent documents in his prison packet. The prosecutor described the private investigator's letters to Whitfield as manipulative and bordering on coercive, appearing to offer his services in gratis to Whitfield if he would recant his testimony.
A stipulation was subsequently received that Whitfield admitted writing the letters.
c. Trial Court's Ruling
The trial court denied the motion, finding Woody to be very credible and that his testimony, if it had been heard by the jury, would not have affected the verdict. As for Whitfield, the trial court found his statements at trial were varied, but the letters were "not totally different from the evidence the jury heard," as it was "quite clear to the Court, and I believe to the jury, that he was trying to limit his responsibility for what took place ...." And as for Johnson, the trial court found his testimony of two guns totally inconsistent with the evidence at trial. The trial court characterized the rest of his testimony as "made up evidence on the part of the defense to help the defense," and his story "just doesn't make sense." The trial court found Johnson to be "totally incredible," and that his testimony, even if "new evidence," would not have changed the jury's verdict. Applicable Law
Section 1181 provides that the trial court may grant a new trial when "new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (§ 1181, subd. (8).) "'To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.' [Citation.] '[T]he trial court has broad discretion in ruling on a new trial motion ...,' and its 'ruling will be disturbed only for clear abuse of that discretion.' [Citation.] In addition, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' [Citation.]" (People v. Verdugo (2010) 50 Cal.4th 263, 308.)
"'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.]' [Citation.]" (People v. Howard (2010) 51 Cal.4th 15, 43.) The test of whether a different result on retrial is reasonably probable "is not a subjective one whether a particular trier of fact would be persuaded by the new evidence to reach a different conclusion, but rather is an objective one based on all the evidence, old and new, whether any second trier of fact, court or jury, would probably reach a different result." (People v. Huskins (1966) 245 Cal.App.2d 859, 862.) "[W]hen a defendant makes a motion for a new trial based on newly discovered evidence, he has met his burden of establishing that a different result is probable on retrial of the case if he has established that it is probable that at least one juror would have voted to find him not guilty had the new evidence been presented." (People v. Soojian (2010) 190 Cal.App.4th 491, 521.) Analysis
Mitchell argues the trial court erred because it considered the testimony of Detective Gumm, who testified to A.S.'s statement during the in-field identification. We note the trial court did not rely on, or even mention, Detective Gumm's testimony when making its decision. In any event, Detective Gumm did not testify to anything different than that which was presented at Mitchell's trial, and any error would be harmless.
As for Whitfield's letters, the trial court did not abuse its discretion when it determined the letters did not constitute new evidence because they merely repeated evidence presented at trial. In both his trial testimony and the letters, Whitfield maintained his stance that he had minimal involvement in the crime and tried to deflect blame on someone else. Whitfield refused to name an actual culprit and further refused to hold an interview to try and exonerate Mitchell, instead inquiring how the investigator could get Whitfield out of prison. Nor did the defense show a reason why Whitfield would untruthfully say Mitchell, who was a friend of Whitfield's, was his accomplice instead of Woody, whom he only knew in passing.
Mitchell also argues the evidence presented by Johnson undercut the strongest evidence against him at trial, specifically that the evidence he gave Woody and Whitfield .380 bullets, that he saw both with .380-caliber weapons, and that Woody confessed to killing Ham after Mitchell's arrest, undercut the manipulated trial testimony of Whitfield that Mitchell was his accomplice. However, the trial court found Johnson not credible and described his testimony as "made up evidence."
The argument that Whitfield's trial testimony was manipulated or coerced was rejected by this court in Mitchell's first appeal. (People v. Mitchell, supra, F067246.) --------
In addition, the testimony presented minimal probative value to undercut the evidence against Mitchell. Johnson was previously subpoenaed to appear at Mitchell's new trial motion, but failed to because he "had something going on" and could not find a ride to court, although he never called defense counsel and stated he could not come or that he needed a ride. When he did appear, his answers to questions were not trustworthy, nor did they point to Mitchell's innocence. Johnson was inconsistent about his conversation with Woody, in which Woody purportedly confessed to the killing, even though Woody was only an acquaintance of Johnson's, not one likely one would confess to. On the other hand, Johnson's bias toward his childhood friend, Mitchell, was evident.
The trial court was well within its discretion in finding that no juror would have changed his or her vote to not guilty given the evidence presented by Johnson. (People v. Soojian, supra, 190 Cal.App.4th at p. 521.) This is especially true given the trial court's credibility findings. The prosecution evidence at trial was substantial to find that Mitchell shot Ham. The evidence included both eye witness testimony and circumstantial evidence. Whitfield testified he was with Mitchell when they attempted to rob Ham and Mitchell shot him. A.S. was able to make a positive in-field identification of Mitchell, whom he had seen around the neighborhood, which led police to Mitchell's residence. Once at the residence, Mitchell threw a gun matching the murder weapon from a bedroom window. Mitchell's DNA was found on the gun; Whitfield's was not. Shoe prints in the alley used to flee the scene of the crime were consistent with shoes owned by Mitchell and seen on him by Whitfield that day. Text messages on Mitchell's cell phone proved he bought a gun matching the murder weapon and bullets for that gun, the day before the murder. Mitchell also texted a friend the morning of the murder that he wanted to rob somebody. Additionally, GPS evidence placed Mitchell in the location of Ham's murder at the time it occurred. The evidence against Mitchell was substantial and the unreliable testimony of Johnson would have no effect on a jury's verdict in this case.
We find the trial court did not abuse its discretion when it denied Mitchell's new trial motion.
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.