Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA355842, Michael O. Johnson, Judge.
Gideon Magolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Appellant was convicted, by a jury, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1).) The jury also found he inflicted great bodily injury on the victim (§ 12022.7, subd. (a).) Following the trial, appellant admitted he served four prior prison terms within the meaning of section 667.5, subdivision (b) and had two prior convictions within the meaning of sections 667, subdivision (a)(1) and 1170.12 (b) through (i). He was sentenced to a determinate term of 13 years plus an indeterminate term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends the trial court improperly denied his motion for a new trial and erroneously allowed the prosecutor to admit evidence that, in the past, he had thrown a brick at the victim. We reject the contentions and affirm the judgment.
II. FACTS
A. Prosecution Evidence
Linda Vanessa Nunez was appellant’s daughter and the victim in this case. Linda described her relationship with appellant as “not good.” On September 28, 2008, while Linda was pregnant with her second child, Linda observed appellant striking her mother. When she intervened to protect her mother, appellant threw a brick toward Linda’s stomach. Linda called the police and caused a police report to be filed regarding the incident but she did not request charges be filed because she hoped appellant’s behavior would change.
Because there were several witnesses with the last name of “Nunez, ” those witnesses are referred to by their first name.
She was not able to remember whether the brick actually hit her.
On April 14, 2009, the day of the incident giving rise to the instant case, Linda was standing in front of a mirror in her bedroom and her second child was with her in a walker. Appellant entered the room holding a four-foot-long bat. He threw a telephone at Linda and exclaimed, “Call the cops now bitch.” Appellant then repeatedly hit Linda on the head with the bat. She moved to the bed in order to reduce the risk of injury to the baby. While on the bed, appellant continued his attack – striking her on her arms, legs, and head. Linda screamed for help and asked appellant to stop. After a struggle on the bed, Linda was able to grab the bat, break free, and escape by jumping through a bedroom window. She threw the bat over a fence onto a neighbor’s yard and hobbled away, screaming and bleeding. Linda asked a neighbor for help and was taken to the hospital by ambulance.
Linda told an investigating officer that appellant possessed a “stick portion of a shovel” rather than a bat.
Linda sustained a broken hand which required a cast to be placed on her arm. She had a laceration to her head which required staples, bruises on her legs, and cuts on her back.
With Linda’s assistance, a detective attempted to locate the weapon used by appellant in the attack. The weapon was not found, however, a neighbor told the detective that someone found “the stick” and threw it in the garbage.
B. Defense Evidence
Appellant’s mother, Herlinda Nunez, did not have frequent contact with Linda since 2007 Linda, yet she characterized Linda as someone who “always lies.” Appellant never hit Herlinda.
Pedro Guevara was the owner and lessor of the house in which the attack took place. Two or three days after the altercation, he repaired the window and described the hole in the window as three or four inches large. On that occasion, Guevara did not see any bandages or cast on Linda. Guevara believed Linda was untruthful in the past in that she did not accept responsibility for a fire she caused in the apartment.
Adrian Castenada was Linda’s neighbor. When Linda inquired about a bat thrown on his yard, he said he had found a pitchfork handle in his yard. He explained he did not see any blood on the handle and threw it in the garbage.
Linda was called as a defense witness and indicated she had not been truthful in that she previously testified she did not use drugs but she, in fact, had smoked marijuana.
III. DISCUSSION
A. The New Trial Motion
On the day of sentencing, appellant moved for a new trial, in part, on the basis that he had newly discovered evidence. This evidence consisted of the testimony of appellant’s wife, Carmen Valdez, that (a) the hole in the bedroom window through which Linda escaped was not large enough for an adult to fit through, and (b) appellant had positive character traits. Appellant’s motion explained that his investigator had spoken to Valdez approximately three months prior to trial but, as trial approached, he was unable to secure her as witness because Linda impeded his efforts to either contact her or serve her with a subpoena.
Although Valdez was available to testify at the hearing on the motion, the trial court accepted appellant’s offer of proof regarding her testimony and, therefore, did not permit live testimony. As explained below, the denial of the motion does not warrant reversal of the judgment.
“In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.) “In addition, ‘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.’ [Citation.]” (Id. at p. 329.)
Penal Code section 1181, subdivision (8) authorizes the trial court to grant a motion for a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial....”
“‘“The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’ [Citation.]” (Id. at p. 328.)
The trial court provided a well-reasoned analysis supporting its ruling. Appellant did not exercise due diligence in that: (a) a defense investigator spoke to Valdez three months before the trial but there is nothing to suggest he secured her contact information at that time; and (b) appellant had called Valdez while in custody, thereby, indicating the defense had Valdez’s telephone number. The proposed testimony was immaterial and did not render it reasonably probable a different result would occur if the testimony was considered by a jury because Valdez had no knowledge of the assault and any good character evidence would have been soundly rebutted by evidence that appellant had recent convictions for evading the police and robbery. The evidence was not “new” in that the individual who fixed the window provided defense evidence regarding the size and shape of the hole, including photographs of the hole. Accordingly, we conclude the trial court did not abuse its discretion.
Appellant’s related contention that the case should be remanded for a new hearing with a requirement that the trial court consider live testimony of Valdez also lacks merit. The law does not require the trial court to consider live testimony at such a hearing. (See § 1181, subd. (8) [requiring only affidavits of the witnesses by whom such evidence is expected to be given].) In any event, there is nothing to suggest the live testimony of Valdez would have been of greater benefit to the defense than the offer of proof regarding that testimony. Indeed, it is reasonable to presume the defense presented its offer of proof in the light most favorable to its motion.
B. The Brick Incident
Appellant objected to evidence that, approximately seven month prior to the attack giving rise to the instant case, he threw a brick toward Linda’s stomach. His objection was on the ground that the evidence was irrelevant because the prior incident did not result in the filing of any criminal charge. Appellant now contends the evidence was inadmissible character evidence under Evidence Code section 1101, and that Evidence Code section 352 precluded admission of the evidence because its probative value was substantially outweighed by its prejudicial effect. However, appellant never made these arguments in the trial court. Thus, the claims that the evidence was inadmissible under these theories are waived. (People v. Lindberg (2008) 45 Cal.4th 1, 48 [defendant’s failure to object to evidence on the same ground as is raised on appeal results in forfeiture of the appellate claim]; People v. Eckstrom (1986) 187 Cal.App.3d 323, 332 [failure to object to evidence on the same ground as urged on appeal precludes appellate review of the issue].)
Nonetheless, any error in admitting the evidence was harmless. The jury was shown photographs taken at the hospital of the victim’s injuries and a neighbor witnessed Linda hobbling away from the residence bleeding. There was no evidence that anything other than appellant’s attack caused Linda’s injuries. Moreover, evidence that appellant tossed a brick toward Linda was minimally damaging to appellant’s case given the far more graphic evidence that appellant beat Linda with a bat. There is no reasonable probability the result of the case would have been different absent the evidence of appellant’s prior uncharged act. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Carter (2005) 36 Cal.4th 1114, 1152 [applying Watson standard to the erroneous admission of uncharged misconduct].)
IV. DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J.KRIEGLER, J.