Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA055178 James R. Brandlin, Judge.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Calvin Newburn appeals for the second time from the judgment entered after a jury convicted him of one count of possessing cocaine base for sale. In Newburn’s first appeal we reversed the judgment and remanded the case to the trial court with directions to conduct an in camera review of law-enforcement personnel files pursuant to Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We also instructed the trial court, if it ordered disclosure of information to Newburn following its review on remand, to allow Newburn an opportunity to demonstrate prejudice and to order a new trial if it found a reasonable probability the outcome would have been different had the information been disclosed before trial.
The trial court conducted the necessary review and released to Newburn material relevant to two testifying police officers. Newburn now challenges the trial court’s denial of his motion for a new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
With the exception of the information in section 4 of this portion of our opinion, our description of the background of the case is taken from our previous opinion in this matter. (See People v. Newburn (July 3, 2006, B178171) [nonpub. opn.].)
1. The Charges
Newburn was charged by amended information with one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), with the special allegation he had been personally armed with a firearm in committing the offense (Pen. Code, § 12022, subd. (c)). The amended information also specially alleged Newburn had a prior serious or violent felony conviction for robbery that constituted a “strike” under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term for a felony within the meaning of Penal Code section 667.5, subdivision (b).
2. Summary of the Evidence Presented at Trial
According to the People’s evidence presented at trial, a number of detectives from the Los Angeles County Sheriff’s Department executed a search warrant at an apartment on South Budlong Avenue in Los Angeles on the afternoon of May 20, 2003. After the detectives knocked at the front door and announced their presence, a woman, later identified as Barbara Spencer, repeatedly stated she was coming to answer the door. Detective Tonya Edwards, who had walked to the side of the apartment to look through a window, saw Spencer standing at the front door, without attempting to open it, while telling the detectives she would open the door. Edwards also saw a man (Newburn) crouching in the apartment’s living room by a cabinet. From a different window Edwards observed another man (Willie Ferguson) in the kitchen stuffing something down the garbage disposal.
The search warrant sought evidence of narcotic sales by a man described as African-American, 5 feet 9 or 10 inches tall, weighing approximately 250 pounds, with a clean shaven head. It was undisputed at trial that Newburn does not match that description.
Because no one in the apartment opened the door, the detectives forced it open. Newburn, Spencer and Ferguson were detained and directed to sit on the ground outside the apartment separated from each other. Detective Barry Fitchew noticed a bulge on the outside of Newburn’s right sock. When he removed Newburn’s sock, Fitchew found a small plastic bag containing 16 off-white, rock-like substances individually wrapped, later determined to be 5.95 grams of cocaine base. Fitchew gave the cocaine to Detective Chris Regan, who had also noticed the bulge in Newburn’s sock. Both Regan and Fitchew opined the cocaine found on Newburn’s person was possessed for sale. Two digital scales, two walkie-talkies, a police scanner and empty plastic bags were recovered from inside the apartment. A loaded gun was found inside the living room cabinet adjacent to where Edwards had seen Newburn crouching; a box of ammunition, matching the ammunition in the gun, was discovered on the couch. Currency was recovered from the kitchen sink, some of it wet and cut.
Ferguson testified in Newburn’s defense. Ferguson stated he was once married to Spencer and she lived at the apartment on Budlong Avenue; Newburn is Ferguson’s cousin. According to Ferguson, he came to Spencer’s apartment on May 20, 2003 to deliver money to Spencer for their daughter; Newburn saw Ferguson there and stopped by as well. Ferguson did not see a bulge in Newburn’s sock with cocaine in it or a gun in Newburn’s possession that day. He also did not see Newburn kneeling by a cabinet trying to conceal a weapon. On cross-examination Ferguson admitted that, when he heard the detectives at the door, he stuffed more than $300 down the garbage disposal because he was on parole at the time and not permitted to carry more than $100. He also admitted he had marijuana in his possession when the detectives executed the search warrant and had suffered four prior convictions for the sale of drugs or the possession of drugs for sale. Ferguson said the cocaine, drug-sale paraphernalia, gun and ammunition recovered were not his and he did not believe they belonged to Spencer.
Ferguson testified Newburn was wearing short pants at the time of the search, which was consistent with the detectives’ report of the incident. Fitchew and Regan, however, both testified Newburn was wearing long pants and they noticed the bulge in his sock when he sat down on the ground; on cross-examination Fitchew testified he could not remember whether Newburn was wearing long or short pants.
3. The Jury’s Verdict and Sentencing
The jury found Newburn guilty of one count of possession of cocaine base for sale but found not true the special allegation he had been personally armed with a firearm in committing the offense within the meaning of Penal Code section 12022, subdivision (c). In a bifurcated proceeding, held after Newburn had waived his right to a jury trial on the special allegation regarding his prior conviction, the trial court found Newburn previously had been convicted of robbery, a serious or violent felony. The trial court sentenced Newburn to a state prison term of eight years, consisting of the middle term of four years doubled pursuant to the Three Strikes law.
The prior-prison-term allegation under Penal Code section 667.5, subdivision (b), was dismissed on the People’s motion.
4. Reversal and Remand
Newburn raised several contentions on appeal from the judgment, all of which we rejected except for his contention the trial court had erred in denying his Pitchess motion. Based on the Supreme Court’s then-recent decision in Warrick v. Superior Court (2005) 35 Cal.4th 1011, we reversed Newburn’s conviction and remanded with directions “to conduct an in camera review of the requested personnel files of Detectives Fitchew, Regan and Edwards for relevance with respect to complaints concerning fabrication of charges or evidence, dishonesty and improper tactics. If the trial court’s review on remand reveals no relevant information, the trial court is to reinstate the judgment of conviction. If the review reveals relevant information, the trial court must order disclosure, allow Newburn an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If no prejudice is shown, the trial court is to reinstate the judgment of conviction.” (People v. Newburn, supra, B178171 at p. 24; see People v. Johnson (2004) 118 Cal.App.4th 292, 305; People v. Hustead (1999) 74 Cal.App.4th 410, 418 (Hustead).)
On remand the trial court released information related to complaints against the three named detectives. Newburn filed a motion for a new trial presenting declarations from three of the complainants: (1) Gerald Bryant, who had complained Detective Fitchew had framed him for a charge of drug possession; (2) Latasha Mimmender-Vines, who had complained a deputy matching the description of Detective Regan had searched her car and harassed her with no provocation; and (3) Rafaela Lopez, who had complained Fitchew and another deputy had pulled her over, harassed and searched her for no reason and threatened to throw her in jail. The People failed to file an opposition to the motion. At the hearing the court advised the parties it was inclined to grant the motion unless the People wanted to submit some opposition. Although Newburn’s counsel objected to continuing the hearing and offered to submit on the declarations, the court determined it would conduct an evidentiary hearing to assist it in deciding the motion.
According to the People, there had been some confusion about which department would handle the opposition to the motion.
Newburn’s counsel was only able to present two of the complainants at the evidentiary hearing. Bryant testified he had been standing outside of an apartment with friends and decided to enter the apartment to use the bathroom. When he came out of the bathroom, several deputies, including Detective Fitchew, had forced their way into the apartment and arrested him. The deputies then searched the apartment, where they discovered a stash of rock cocaine and a nine-millimeter handgun. At the station Bryant stated he was interviewed by Fitchew, who told him he knew Bryant did not live in the apartment and the drugs did not belong to Bryant. When Bryant refused to identify the tenant of the apartment, Fitchew threatened to charge him with possession of the seized drugs. Bryant still refused to talk and was charged with possession of cocaine base for sale and possession of a firearm by a felon. Bryant filed a complaint against Fitchew, but, after hearing Fitchew’s testimony at the preliminary hearing and because he had already suffered two strike convictions, Bryant agreed to plead guilty to one count of possession of a controlled substance to avoid a potential life sentence.
The trial court requested, and was provided with, a copy of Detective Fitchew’s testimony at Bryant’s preliminary hearing. At that hearing Fitchew testified deputies had come to the apartment to enforce a search warrant alleging drug activity at the apartment but describing a person who did not match Bryant. Bryant, however, was the only person inside the apartment. Fitchew acknowledged he had not seen Bryant in possession of drugs or a gun, but testified, when the deputies announced themselves, he saw Bryant through the partially open front door run from the living room to the back of the apartment. Other deputies forced the door open. Fitchew ran to the back of the living room, turned down the hall and chased Bryant into the bathroom. Although Bryant had just flushed the toilet, Fitchew saw a small bag swirling in the toilet and fished it out. The bag contained rock cocaine. Bryant was arrested and found to have more than $700 cash in his pocket. During the course of the deputies’ search of the apartment, a dog located plastic bags of rock cocaine tucked into a pair of athletic shoes in the closet. Fitchew also found a loaded gun under the seat cushion of a couch in the living room.
Newburn’s counsel also called Latasha Mimmender-Vines to testify about an August 15, 2001 encounter with an officer later identified by the station’s watch commander as Deputy Regan. According to Mimmender-Vines, she drove home after her shift ended and parked her car in front of her home. Although she had broken no laws, she saw deputies searching her car. When she approached them and demanded an explanation, the deputies began issuing tickets against her for no reason. She protested the tickets, but one of the deputies told her she would be taken to jail unless she signed them. She was cited for speeding and failing to signal.
The court declined to consider the third declaration based on the declarant’s unavailability. The declarant, Rafaela Lopez, stated in her declaration she had been stopped, while driving with her children, by Detective Fitchew and another deputy who ordered her out of the car at gunpoint. The car was searched; Lopez was also searched, including her underwear. During the search, when she protested she had done nothing wrong, Fitchew told her to shut up or he would put her in jail.
After hearing the witnesses, the trial court denied Newburn’s motion for a new trial. Although the court stated it found Bryant’s account of Fitchew’s threatening statement to be credible, the court concluded there was no substantial basis to believe Fitchew had framed Bryant on the possession charges. The court specifically noted Bryant’s failure to address the drugs found in the apartment or to contradict Fitchew’s account of his arrest.
Having denied Newburn’s motion for a new trial, the court reinstated his conviction.
CONTENTIONS
Newburn contends the trial court erred in denying his motion for a new trial, refusing to consider the declaration of Rafaela Lopez and scheduling an evidentiary hearing on the motion instead of resolving the motion by declaration.
DISCUSSION
1.Standard of Review Applicable to Motions for a New Trial Following Disclosure of Relevant Pitchess Material
When a trial court erroneously denies a Pitchess motion and the matter has been remanded, the court is first obliged to determine after reviewing the personnel files at issue whether they contain discoverable information that could lead to admissible evidence helpful to the defense. (Hustead, supra, 74 Cal.App.4th at p. 423.) Evidence is helpful or favorable to the defendant if it is “evidence that the defense could use either to impeach the state’s witnesses or to exculpate the accused.” (People v. Ochoa (1998) 19 Cal.4th 353, 473.) In remanding this case, we directed the court, in the event such evidence existed and should have been disclosed, “to allow Newburn an opportunity to demonstrate prejudice and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.” (People v. Newburn, supra, B178171 at p. 24; see Hustead, at p. 418; People v. Johnson, supra, 118 Cal.App.4th at p. 305.)
The question whether a showing of prejudice is required at all under such circumstances is currently pending in the Supreme Court in People v. Gaines, review granted November 28, 2007, S157008. The Gaines case was argued and submitted on March 4, 2009. Until the Supreme Court announces a different rule, we adhere to the Hustead/Johnson prejudice requirement previously ordered in this case. (See Davies v. Krasna (1975) 14 Cal.3d 502, 507 [under the law of the case doctrine, “a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case”].)
This standard for granting relief comports with the well-established function of the trial court in deciding a motion for a new trial under Penal Code section 1181. (See People v. Serrato (1973) 9 Cal.3d 753, 760-761, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [“‘the power of a California trial court to hear and decide a motion for a new trial in a criminal case is strictly limited to the authority granted by Penal Code section 1181’”].) The provision of Penal Code section 1181 most applicable to this setting is subdivision 8, which authorizes a trial court to order 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.” Diligence not being an issue here, the principal factor for the trial court to consider under this subdivision is whether the evidence is “such as to render a different result probable on a retrial of the cause.” (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).) In making that evaluation, “‘the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.’” (Id. at p. 329.)
Ordinarily, “[i]n 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.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Under Delgado the trial court’s decision to deny a motion for a new trial based upon newly discovered evidence is reviewed for an abuse of discretion: “‘“The determination of a motion for a new trial [based on newly discovered evidence] rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’” (Delgado, supra, 5 Cal.4th at p. 328.) “‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’” (Ibid.)
Nonetheless, Newburn contends the determination of prejudice made in the first instance by the trial court is a mixed question of law and fact, which ordinarily warrants independent review by the appellate court. (See, e.g., People v. Ault (2004) 33 Cal.4th 1250, 1266; People v. Cromer (2001) 24 Cal.4th 889, 899.) Newburn further argues independent review of the trial court’s denial of his motion for a new trial is especially warranted because the erroneous denial of his original Pitchess motion deprived him of his due process right to put on a defense.
Newburn acknowledges that, even if we were to apply our independent review to the denial of his new trial motion, the trial court’s factual findings are still entitled to deference, reviewable only for substantial evidence. (See, e.g., People v. Taylor (1984) 162 Cal.App.3d 720, 724.)
We agree under Ault independent or de novo review is appropriate for rulings on mixed questions of law and fact that constitute final adverse determinations on issues of constitutional significance. The standard of review applicable in this case, therefore, hinges on whether we view the issue to be one of “constitutional significance,” that is, one that implicates Newburn’s constitutional right to present a defense, or simply one that affects the quantum of evidence available to the defendant to advance his or her theory of the case. The court in Hustead, supra, 74 Cal.App.4th 410, addressed this issue and, in our view, came to the proper conclusion: Under most circumstances the post-Pitchess inquiry does not rise to the level of constitutional significance.
As the Supreme Court cautioned in Ault, a case involving allegations of jury misconduct, “independent appellate review of a mixed law and fact question is crucial when an excessively deferential appellate affirmance risks error in the final determination of a party’s rights, either as to the entire case, or on a significant issue in the litigation. Thus, if a trial court’s determination that juror misconduct was harmless were not reviewed de novo, the risk would arise, in a close case, that the complaining party’s rights had been finally resolved by an unfair trial in which the party was denied the fundamental constitutional guarantee of an impartial jury. By according deference to the trial court on this mixed law and fact issue of constitutional significance, the appellate court would abrogate its own constitutional role (see Cal. Const, art. VI, § 13) to protect the complaining party’s fair-trial rights.” (People v. Ault, supra, 33 Cal.4th at p. 1266.)
The Hustead court likened the inquiry following a finding of Pitchess error to those in which the trial court improperly denied discovery that would have led to admissible evidence or in which the court erroneously excluded admissible evidence. (Hustead, supra, 74 Cal.App.4th at p. 422.) In either case, the court explained, “the proper standard of review is whether there is a reasonable probability that there would have been a different result had the evidence been admitted.” (Ibid.;cf. Delgado, supra, 5 Cal.4th at p. 328 [inquiry under Pen. Code, § 1181, subd. 8, is whether the evidence is “such as to render a different result probable on a retrial of the cause”].) In reaching this conclusion the Hustead court relied on the distinction set forth in People v. Fudge (1994) 7 Cal.4th 1075, 1103, in which the Supreme Court held, when exclusion of evidence does not impair an accused’s due process right to present a defense, but represents “‘only a rejection of some evidence concerning the defense[,]’... the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]).’”
To establish prejudice under the Watson standard, “‘[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for [the] errors, the result of the proceeding would have been different.’” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “A ‘reasonable probability’ is one sufficient to ‘undermine[] confidence in the outcome.’” (People v. Ochoa, supra, 19 Cal.4th at p. 473; accord People v. Hayes (1992) 3 Cal.App.4th 1238, 1245 [prosecution’s failure to disclose impeachment evidence requires reversal “‘“if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial”’”].)
We find the Hustead analysis appropriate under the facts of this case. The omission of the proposed testimony of the complainants, while relevant to impeach at least two of the testifying detectives, did not deprive Newburn of his due process right to present a defense. Accordingly, we review the trial court’s denial of Newburn’s motion for a new trial for an abuse of discretion.
2.The Trial Court Did Not Abuse Its Discretion in Denying Newburn’s Motion for a New Trial
i. The trial court was authorized to make credibility determinations and to conduct an evidentiary hearing on the motion
Newburn takes the unusual position the trial court was required to resolve his motion for a new trial solely on the declarations and lacked discretion to conduct an evidentiary hearing to assist it in the resolution of its determination of prejudice. This contention arises from Newburn’s argument the trial court improperly invaded the province of the jury by making credibility determinations related to Bryant’s testimony.
As discussed above, a trial court ruling on a motion for a new trial based on newly discovered evidence is authorized to consider the credibility of the proposed evidence as well as its materiality. (Delgado, supra, 5 Cal.4th at p. 329.) The trial court’s discretion in this regard is not unfettered; the standard of “reasonable probability” requires an objective assessment of the evidence. (See People v. Clauson (1969) 275 Cal.App.2d 699, 706.) But there is no question the trial court is in a unique position to judge credibility, and we will accord those determinations “considerable deference.” (People v. Hayes (1985) 172 Cal.App.3d 517, 524-525.)
Moreover, the trial court was well within its authority to hold an evidentiary hearing to test the credibility of the declarants proffered as witnesses. Undeniably, “[a] trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.” (People v. Cox (1991) 53 Cal.3d 618, 700, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see Pen. Code, § 1044 [“[i]t shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved”].) This includes the authority to “conduct an evidentiary hearing... to determine the truth of the allegations if the court concludes this is necessary to resolve material, disputed issues of fact.” (People v. Hayes (1999)21 Cal.4th 1211, 1255; ibid. [“[w]hen allegations of juror misconduct made in a criminal trial raise a presumption of prejudice, the court is not limited, as it would be in a civil case, to consideration of evidence presented by affidavit or declaration to resolve whether a new trial motion should be granted”].)
ii. The trial court did not abuse its discretion in finding no reasonable probability of a different outcome in a new trial
The trial court, which had presided over Newburn’s trial and was thus familiar with the evidence against Newburn, heard the testimony of two of the declarants presented by Newburn’s counsel and reviewed the testimony of Detective Fitchew at Bryant’s preliminary hearing.
With respect to Bryant, whose complaint targeted Detective Fitchew, the court found Bryant’s accusation relating to Fitchew’s threat to file the drug and weapon charges against him if he did not cooperate to be “credible” and “heavy-handed” but not probative of the charge of fabricating evidence. The court stated it found the remainder of Bryant’s testimony not credible because his allegations lacked “a substantial basis in the record.” Whether or not the trial court’s doubts about Bryant’s credibility were justified, Bryant’s account of the raid on the apartment contained substantial gaps that did not contradict the account provided by Fitchew at Bryant’s preliminary hearing. For instance, there was no challenge to the legitimacy of the warrant, even if the tenant of the apartment was not present; and Bryant did not dispute that he was the only person inside the apartment or that the drugs and weapon were recovered from the apartment. In fact, Bryant failed to acknowledge either in his declaration or in his testimony he was found with more than $700 in his possession. His testimony challenges only Fitchew’s “heavy-handed” threat to file the charges against him if he did not identify the tenant of the apartment. It does not corroborate the allegation Fitchew manufactured the evidence against Newburn. (Cf. People v. Martinez (1984) 36 Cal.3d 816, 822, 823 [“[n]umerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant” or would “expose a serious gap in the prosecution’s proof”].) As another court has characterized such oblique testimony, “Analyzed objectively, the proposed evidence can only be described as impeaching; its effect on a new trial is speculative at best, not probable.” (People v. Clauson, supra, 275 Cal.App.2d at p. 707.)
Bryant, moreover, offered the only testimony relevant to the issue of Detective Fitchew’s credibility. Latasha Mimmender-Vines, who believed Detective Regan was the deputy who threatened her with jail if she refused to sign the tickets he issued, offered nothing other than her individual assertion she had broken no traffic laws to support her allegation of wrongdoing. Again, Detective Regan (assuming he was the deputy involved) may have been guilty of “heavy-handed” policing, but Mimmender-Vines’s testimony lacks any verifiable nexus to Newburn’s allegations the detectives fabricated the evidence against him.
Given the lack of nexus between the allegations made by Bryant and Mimmender-Vines, we need not determine whether the evidence would have been subject to an objection under Evidence Code section 352 or as hearsay. Even assuming its admissibility, it was not sufficiently probative to render a different outcome of Newburn’s trial reasonably probable. When considered in conjunction with the testimony of the other deputies involved in Newburn’s arrest corroborating Fitchew’s account, the trial court’s denial of the motion for a new trial fell well within its broad discretion.
iii. Any error by the trial court in failing to consider Lopez’s declaration was harmless
In the absence of a legitimate substantive objection (which does not appear on the record), the trial court’s decision to disregard Lopez’s statement simply because she was unavailable to testify on the date selected for the evidentiary hearing may have been an abuse of the court’s discretion. Any error was harmless, however, because Lopez’s declaration again lacked any nexus to the allegation of malfeasance made by Newburn. Accordingly, even if her allegations were substantiated and had been considered, they would not have established the reasonable probability of a different outcome required under Hustead.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J. ZELON, J.