Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF119749, Patrick F. Magers, Judge. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
RAMIREZ, P.J.
Defendant and appellant Dominic Deshawn Slayton appeals the trial court’s denial of his motion for a new trial based on the discovery of new evidence relating to the credibility of a key witness.
FACTUAL AND PROCEDURAL BACKGROUND
On October 12, 2004, defendant was charged in a felony complaint with two counts of robbery (Pen. Code, § 211, counts 1 & 2) and felon in possession of a handgun (§ 12021, subd. (a)(1), count 3). As to counts 1 and 2, it was alleged defendant personally used a firearm to commit the offenses. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) It was further alleged defendant served three prior prison terms (§§ 667.5, subd. (b)), and had a prior serious felony (§ 667, subd. (a)), which also qualified as a strike offense (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The two victims in this case, Robert Messer (Messer) and Jonathan Wright (Wright), both testified at trial, and their accounts of the robbery were similar. They said they were selling stereo equipment on a consignment basis from a van owned by their employer. They would use the van to pick up stereo equipment from a warehouse in the morning, drive to a busy parking lot of a retail shopping center, and ask people if they would be interested in buying the equipment. On the afternoon of March 5, 2004, around 1:00 p.m., Messer and Wright were attempting to sell equipment in the parking lot of a Best Buy store. They both identified defendant as one of a group of three Black men who arrived in the parking lot in a Cadillac truck. According to Messer, two of the men in this group went inside the store, and defendant stayed outside to talk about the stereo equipment. Messer sat in the van while Wright was showing the equipment and “trying to do the deal.”
Defendant seemed interested in the equipment, but said he did not have money with him, so he would need to “go get it.” Messer and Wright followed the three men to a “housing complex.” Wright recalled defendant being on a cell or “chirper” phone at this location, and he believed defendant was seeking approval from someone else to close the deal. It was determined they (the three men, Messer, and Wright) would have to meet later at a nearby Target parking lot to complete the deal. Messer and Wright waited at the Target parking lot for awhile. Defendant did not return, so they started trying to sell the equipment to other people.
After awhile, the three men arrived driving the Cadillac truck. Defendant indicated he could complete the deal. While Messer waited in the van, Wright loaded some stereo speakers into the back of the Cadillac truck, and then got into the Cadillac truck with the three men. Messer drove the van and followed the Cadillac truck around the corner to an apartment complex. Things seemed a “little bit shifty” to Messer, so he decided to write down the license plate number of the Cadillac truck “just in case.”
The Cadillac truck parked next to a white vehicle, and Messer parked the van next to the Cadillac truck. Messer got out of the van and stood next to Wright, who was talking to defendant. At first, defendant showed them some money, so Messer believed they were about to complete the deal, but then defendant reached into his pocket, “slightly pulled out what appeared... to be a gun” and said, “you know, what time it is?” Defendant then said, “You all start walking down the sidewalk and don’t—don’t turn around or, you know.”
Messer and Wright did what defendant told them to do, but turned around after awhile and saw the Cadillac truck and the white vehicle being driven away together. They ran back to the van and tried to catch up with them to see if they could get the license plate number of the white vehicle. However, they gave up after driving around the block, went back to the Target parking lot, and called 911. The 911 tape was played for the jury.
Police were able to locate the Cadillac truck defendant was driving shortly after receiving the 911 call. A police officer then took Messer and Wright to the location where the vehicle was found. Messer and Wright were able to identify defendant and the vehicle. Messer said he saw police taking the stereo equipment out of the Cadillac truck, and Wright said he identified the equipment.
The defense strategy at trial was, in part, to discredit Messer and Wright by highlighting weaknesses and inconsistencies in their testimony. For example, Messer told the 911 operator defendant had a tattoo on his arm, which he was able to identify in a photograph during trial. Although defendant told the 911 operator the tattoo was on defendant’s left arm, it was actually on the right. Messer testified he was confused about this at the time because he was facing defendant when he saw the tattoo, and the tattoo was on the same side as Messer’s right arm. During cross-examination, defense counsel highlighted this weakness in Messer’s testimony. Wright testified he did not recall seeing defendant’s tattoo. However, a defense investigator testified Wright described a tattoo going from defendant’s wrist to his elbow.
The victims also told the 911 operator defendant was wearing a tan- or vanilla-colored shirt, blue jeans, and brown shoes. Photographs of the clothes defendant was wearing when he was arrested were introduced as exhibits. During closing arguments, defense counsel argued both witnesses’ description of the clothing worn by the robber was not consistent with the clothing defendant was wearing when he was arrested. In addition, defendant is about five feet five or six inches tall, but Wright told the 911 operator the robber was five feet eight inches tall or possibly six feet tall. In addition, defense counsel attacked Wright’s credibility during cross-examination with prior bad acts and inconsistent statements.
Defendant also presented two alibi witnesses in an attempt to show he could not have been present at the time the robberies were committed. This alibi defense was based in part on the victims’ estimates as to when the robbery occurred and a police officer’s testimony indicating he was dispatched about 2:45 p.m. after the victims’ 911 call. First, defendant’s aunt testified he was at her home on the date he was arrested babysitting her children while she went to work. She left for work at 8:45 a.m. While she was at work, there were several telephone calls either to or from her home at 10:30 or 11:00 a.m., sometime between noon and 1:00 p.m., and again at 2:00 p.m. According to the aunt, defendant was in the home at these times.
Second, a police officer who lived across the street from defendant’s aunt recalled seeing a white Cadillac Escalade there sometime in March 2004. He was outside doing yard work sometime between noon and 2:00 p.m., when he saw the Cadillac truck pull up to the residence. A white female with blond hair was driving, and she had two older Black male passengers with her, but defendant was not one of them. At the time, he was interested in purchasing this type of vehicle, so he spoke with the driver, and she let him look inside at the interior of the vehicle for about 12 minutes. He did not see any stereo equipment inside the vehicle, other than what was installed by the manufacturer. He then went back home, and 20 to 30 minutes later, he saw the vehicle being driven away by the two older Black males he had seen earlier. The back windows were tinted, so he could not see if defendant or the white female were in the vehicle.
The jury found defendant guilty as charged. In a bifurcated proceeding, the court also found the prior convictions to be true.
On November 14, 2007, defendant filed a motion for a new trial based on newly discovered evidence relating to Wright’s credibility. The court denied the motion on January 14, 2008. On June 12, 2008, defendant filed a motion to strike. However, the court also denied this motion. On June 13, 2008, the court sentenced defendant to a total of 21 years in state prison.
DISCUSSION
Defendant argues the trial court erred when it denied his motion for a new trial because this “was a close case,” and the newly discovered evidence was therefore likely to result in a different verdict if the case were retried. He also contends this newly discovered evidence could not have been learned prior to trial despite reasonable diligence.
Under section 1181, subdivision 8, a trial court can grant 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.] [¶] 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.)
Prior to trial, a defense investigator contacted the victims’ employer, Nicholas Montana (Montana). Defendant claims Montana was uncooperative prior to trial but did say he fired Wright for drug use. The defense investigator again contacted Montana after trial. Montana gave additional information to the investigator, and the investigator included this information in a declaration, which was submitted with defendant’s motion for a new trial. Defendant believes this information demonstrates Wright lied at least three times during his trial testimony. First, Wright testified he was accountable to his employer for the stereo equipment even if it was stolen from him. However, Montana told the investigator Wright would not have to pay for the equipment as long as his allegation of theft was supported by a police report. Second, Wright denied being fired during his testimony, but Montana told the investigator that he fired Wright because he lied, told stories, used drugs, and stole from others. Third, Wright testified he had gotten married, had a child, and had been “staying out of trouble.” However, the defense discovered a copy of a police report of an incident dated March 7, 2007, from Las Vegas alleging a theft, which was “remarkably similar” to the one in this case.
Defendant contends the investigator’s declaration is the best evidence available because Montana has taken steps to avoid being subpoenaed.
In our view, the trial court properly denied defendant’s motion for a new trial. In reaching its decision, the trial court identified the “real issue” as whether a different outcome was probable based on the new evidence cited in defendant’s motion. The trial court correctly characterized defendant’s new evidence as “strictly impeachment.” The court then said, “Mr. Wright was substantially impeached by cross-examination of [defense counsel]. The Court gave [defense counsel] wide latitude in impeaching Mr. Wright. It was clear to the Court, and I’m assuming clear to the jury, that Mr. Wright was an untrustworthy individual with a very questionable character. That’s how he presented himself, and through the diligent cross-examination by [defense counsel], that’s how he—that’s how he came across. [¶] Obviously, an individual with questionable character... can still be the victim of a robbery. That’s the point. And Robert Messer corroborated the testimony of Mr. Wright.... [¶] And from the Court’s standpoint, based upon the affidavit of Mr. Montana, the Court would be hard pressed to find a different outcome would be probable....”
The trial’s court’s conclusion that Wright was thoroughly and effectively impeached during trial is supported by the record. For example, defense counsel was able to show Wright’s testimony about the gun was inconsistent with a prior statement he made at the preliminary hearing. During trial, Wright testified defendant pulled the gun out to the end of his pocket and then quickly put it back inside. At the preliminary hearing, Wright indicated the robber took the gun all the way out of his pocket and pointed it at his face. A defense investigator also testified he interviewed Wright about a year after the robberies, and Wright described the gun as a “long barrel revolver” after telling police it was a semiautomatic handgun. In addition to highlighting prior inconsistent statements and other weaknesses in Wright’s testimony, defense counsel was able to impeach Wright with a prior conviction for giving false information to a police officer in June 2003. Wright said he was driving without a license and gave the police officer his brother’s name when he was pulled over because he did not want to get in trouble. In November 2003, he was questioned by police after attempting to pass counterfeit bills at a convenience store. Wright was further impeached with a misdemeanor grand theft charge in connection with an incident that took place in December 2003 while selling stereo equipment. Based on the foregoing, we disagree with defendant’s contention that the new evidence he submitted in support of his motion for a new trial was not merely cumulative of other impeachment evidence.
“[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) Here, Messer’s identification of defendant as the robber and his description of the events surrounding the robberies, were for the most part strong, consistent, and unequivocal. Messer’s credibility and his account of the facts were thorough and believable, and were not discredited to any significant degree. Because Messer’s testimony was strong, Wright’s testimony merely served as corroboration. Despite impeachment, Wright’s testimony was relatively effective as corroboration because it was largely consistent with Messer’s testimony. As the sole judge of credibility, the jury could reasonably have rejected defendant’s alibi defense because Messer’s testimony was convincing and the alibi testimony was weak by comparison. Under these circumstances, we agree with the trial court’s decision to deny defendant’s motion for a new trial. There is simply no reasonable probability of a different result on retrial.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J. KING J.