Opinion
A141271
02-08-2017
THE PEOPLE, Plaintiff and Appellant, v. JOHNNY EDWARD TATUM, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR212687)
I. INTRODUCTION
A jury convicted defendant Johnny Edward Tatum of forcible rape. He moved for a new trial, claiming the juvenile victim's mother sent text messages after trial indicating that the victim fabricated her story about being raped. The trial court granted defendant's motion, and the prosecution appealed. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with a single count of forcible rape against A.R., a minor. (Pen. Code, § 261, subd. (a)(2)). The prosecution further alleged defendant personally used a firearm during the commission of the offense (§ 667.61, subd. (b)). The case proceeded to trial in July 2013.
All further undesignated statutory references are to the Penal Code.
The case initially went to trial in November 2012, but the court declared a mistrial during the first day of testimony.
Prosecution case
A.R. was the prosecution's central witness. She was born in 1996 and was 17 years old at the time of trial. She lived with her biological mother, S. Jackson, until she was five years old, then lived with her grandmother, Dolores R. A.R. was placed in foster care when she was 11 years old. A.R. kept in touch with Jackson while in foster care, though they did not get along.
A.R. met defendant when she was 12 years old. Defendant was in a relationship with Jackson. A.R. thought defendant was "cool" when they met, and she ran away from her foster home to live with Jackson and defendant at defendant's mother's house in Vallejo. A.R. would sometimes leave the house with defendant after having an argument with Jackson.
A.R. testified that on one occasion, she got into an altercation with Jackson, and then asked defendant to take her to her best friend's house in Fairfield. A.R. did not recall exactly when this occurred but remembered the weather was cold. A.R. and defendant left in a red Toyota rental car. Instead of going to Fairfield, defendant drove to a dead-end by the waterfront in Vallejo and parked the car. Defendant exited the car, got something out of the trunk, then opened the front passenger door where A.R. was sitting. Defendant had a gun and pointed it at A.R. A.R. had seen the gun before they left the house and saw defendant put it under the driver's seat. After pointing the gun at A.R., defendant put it on the driver's seat and told A.R. to take her pants down and turn around. He then raped A.R. A.R. was crying, and defendant said he was going to kill her. A.R. did not remember whether defendant was wearing a condom.
After the rape, defendant dropped A.R. off at his friend's house. The friend's son went to school with A.R. A.R. did not tell anyone at the house about the rape. A few days later, A.R. told Jackson what had happened. Jackson did not believe A.R. She yelled at A.R. and told her defendant would never do anything like that. Jackson told A.R. not to tell anyone what happened or else she would get somebody to do something bad to A.R. A.R. subsequently ran away. At the time of trial, A.R. had not seen Jackson or defendant since telling Jackson what happened.
In March 2010, A.R. told Dolores R., her grandmother, that she had been raped by her mother's boyfriend. Dolores told A.R. to tell the authorities what happened, but A.R. was reluctant because she was afraid of her mother.
Sometime in the middle of 2010, A.R. discovered she was pregnant. In December 2010, while A.R. was living with her foster mother, Nancy H., she received text messages from the phone of defendant's mother. H. saw some of the messages. They said "Is the baby mine?" and "why did you let me rape you?" and "you got what you wanted." During the trial, H. was asked to look for the phone A.R. received the messages on and bring it to court, but she was unable to find it. A.R. did not help H. search for the phone. She did not want to go to H.'s house because her room was under construction, and also because her foster father was terminally ill and she did not want to see him die.
In January 2011, A.R. reported the rape to a social worker. The report was forwarded to the sheriff's department in Sacramento (where A.R. was then residing). Detective Eugene Hardy interviewed A.R. about the incident. The report was forwarded to the Vallejo Police Department in August 2011. The following month, Officer John Garcia interviewed A.R. about the incident.
A.R. was upset and sobbing during her conversations with Garcia. When cross-examined, Garcia testified that A.R. did not mention that defendant used a gun until Garcia asked whether defendant took anything out of the trunk. A.R. then told him that defendant took a gun from the trunk.
Defense case
Detective Hardy testified about his February 2011 interview with A.R. in Sacramento. A.R. told him she ran away from a foster home in December 2009 and arrived at Jackson's house in February 2010. Sometime after moving in, A.R. got into a physical fight with Jackson and left the house with defendant. A.R. saw defendant with a gun when they left the house. Defendant drove to Patterson Elementary school. Once there, defendant wanted to post A.R. on "Red Book," a website used in the sex industry to advertise services. Defendant also took out his laptop and played a pornographic movie. Afterward, defendant went to a Motel 6, picked up a "ho," and dropped her off at the "ho stroll." Defendant then drove A.R. to the waterfront. He got out of the car and went to the trunk, grabbed a gun out of the trunk, then placed the gun under the driver's seat. Defendant then raped A.R. in the passenger seat. Defendant was not wearing a condom and ejaculated on A.R.
When later cross-examined by defense counsel, A.R. testified that she and defendant went to the elementary school and watched a pornographic movie, but that this occurred a few days before she was raped. She also recalled that she and defendant went to Motel 6 to pick up and then drop off a female, but that this also occurred a few days before the rape.
Private Investigator David McGraw also testified for the defense. He said that he was not able to locate an area in Vallejo that was consistent with A.R.'s description of the rape location. McGraw also located a 2010 Toyota Camry and stated that it would have been very difficult for someone defendant's size to rape A.R. in the manner she described.
Motion for new trial
Approximately one month after being convicted, defendant moved for a new trial pursuant to section 1181 on the ground that he discovered new evidence material to his defense. Specifically, defendant claimed he discovered that Jackson had sent text messages on September 6, 2013—approximately one month after defendant was convicted—to defendant's wife, Jennifer Tatum, admitting the rape allegation against defendant was falsified by A.R. Earlier that same day, a defense investigator had attempted to locate and speak with Jackson's mother (A.R.'s maternal grandmother).
Defendant's motion raised other grounds for a new trial, which were not ruled upon by the trial court and are not at issue on this appeal.
Included with the motion were copies of the text messages, as well as records showing that the phone from which the messages originated was registered to "[XXXXXXXX] Jackson" living on Spring Road in Vallejo. The entirety of the message exchange was as follows:
"[Jackson]: Y r u looking for me n sending invistagater to my moms
[Tatum]: Huh? Who is this?
[Jackson]: Dont play dum how many peple u got the boys lookin for this [S.]
[Tatum]: Ctfu, you can't be serious. I'm not looking for YOU, I was looking for evidence to help MY HUSBAND get out the mess YOU created. I did look for your mom, cause the lawyer needed her!
[Jackson]: I didn't crete this
[Tatum]: Really? Cause did u forget that you called me & admitted you knew he didn't do it & wanted to help johnny cause you were just scared originally that u were gonna lose him behind the dna test?
[Jackson]: And im not talkin to no lawer i feel bad for him but im not getting my kid in trouble
[Tatum]: Did you forget telling his lawyer you knew he was innocent? Did you forget telling his mom that she took your son so u r gonna take hers once the bby got adopted? Well if you really felt bad you would tell the TRUTH! If u didn't want her in trouble why involve her & have her lie for you just casue u got mad at johnny? U decided to wake up this morning &b a parent or something????
[Jackson]: I told her i changed my mind and she still lied that why im not in it she kept going wit this shit
[Tatum]: WTF...you have GOT to b joking! Just because she did what YOU told her &then YOU said nevermind u aren't involved??? You CREATED this mess, and now johnnys gonna get LIFE &u don't wanna be in it????
[Jackson]: Bitch im always a parent fuck u i was tryn to be nice but realy fuck u and him he didnt do this but he should watch who he fuck over cause now he gonna sit his
[Tatum]: Even you must know this is wrong, just go tell the truth &let him live his life &u live yours . . . this is wrong!
[Jackson]: Trifen ass down god dont like ugly
[Tatum]: God don't like ugly???? All he did was leave u so u gonna take his whole life. That's sick. What kind of grown ass woman, and suppossed mother tells her 12yr old to lie abt RAPE?!
[Jackson]: Im not takin shit and i aint got time 4 this im bout to b in jail my dam self an after sac i tol her drop it she did the rest on her own cause she didnt want 2 Get locked up 4 lyn
[Tatum]: She's a CHILD b an ADULT. EVEN U knos this is wrong in ur meth controlled brain . . .
[Jackson]: So he didnt rape her she lied SO WHAT im sure he did SOMETHING so anyway have fun at ur conjugals LMAO
[Tatum]: She's not gonna get locked up, he will let it go he jus wants his freedom! &I hope if u goin to jail u remember what he's been doing for almos 3yrs behind your lies. Bitch, fuck u. The truth is gonna come out eventually you evil hating ass dope head. Go smoke your crack. There's a special place in hell for crack heads like you. I'm going to work. Leave me and my family alone.
[Jackson]: Whateva, bitch. Im a b all that out here FREE, LOL!!! N he gona think about me EVERYDAY for the rest of his life LMBAO and bitch u was searchn for 4 me so leve me alone"
Defendant's motion included a declaration from one of the jurors at defendant's trial. The juror stated he had believed A.R.'s testimony at trial, though he thought she had been evasive at times. The juror stated he met with a defense investigator after trial who showed him the text messages, and that had he known of the messages at trial, he would have had a reasonable doubt about defendant's guilt.
The trial court held an evidentiary hearing on defendant's motion. At the hearing, the evidence showed that phone calls from the phone used to send the text messages were made on September 6, 2013. One call was made to the Solano County Public Defender, and another call was made to the Solano County Welfare Department. Jackson had a hearing on September 6 in a criminal matter pending against her in Solano County, and minute orders relating to the case listed Jackson's address as the address of the Solano County Welfare Department. Other calls were made on September 6 to Deborah Dixon, Jackson's mother, and Margaret Morgan, defendant's sister. Morgan testified at the hearing that she received a phone call from Jackson on September 6. Jackson asked Morgan for Jennifer Tatum's phone number. Morgan called Tatum to make sure it was okay to give out her number, then reconnected with Jackson and provided Tatum's phone number.
Tatum testified at the hearing. She explained that the reference in the text messages to the DNA test referred to a time in 2010 or 2011 when Jackson was pregnant and claimed defendant was the father. After the test was done, Jackson stopped claiming defendant was the father. Tatum testified that prior to trial, Jackson "alluded" to how she got mad at defendant after the DNA test and caused A.R. to lie about being raped by defendant. Jackson also told Tatum that she was scared about what was going to happen when defendant found out that Jackson lied. Tatum provided this information to a defense investigator prior to trial.
Michael Rowe, an investigator for the Solano County District Attorney's Office, testified at the hearing that he interviewed Jackson about the text messages (a recording of the interview was admitted into evidence). Rowe confronted Jackson with copies of the messages and asked why she had sent them, but Jackson did not answer. Rowe asked Jackson if she was trying to get A.R. to stop pursuing the rape case, but Jackson again did not answer, and then asked if they could go "off the record." Rowe eventually told Jackson she was being evasive. Jackson told Rowe, "you're not here to help me, you're here to help him," then left the interview.
Jackson was called to testify at the hearing, but she asserted her Fifth Amendment privilege and refused to testify.
After hearing arguments, the court granted defendant's motion for a new trial. The court stated:
"Procedurally, I do feel that there's no questions that the testimony given, sworn testimony given by witnesses today certainly satisfies the affidavit requirement of the code section, as far as in support of the grounds for new evidence. Those texts make it clear to me that Ms. Jackson told her daughter to lie. Certainly, there's an awful lot of circumstantial evidence to the effect that the telephone, that the phone number, the texts were by Ms. Jackson, I don't think there's any serious questions about that. These texts took place considerably after, sometime after the trial took place. So, that is newly discovered evidence and it's more than just impeachment, because this is saying mom told her to lie. It's not, or I told her to lie, it's not just impeaching what [A.R.] had to say.
"In order to get a fair trial in this matter I think it is necessary that Mrs. Jackson's part of in this whole picture be a part of that trial. This need is exacerbated by [A.R.'s] testimony, the manner in which it was given, the uncertainties back and forth, a little bit here and there. I think it is certainly clear if this aspect of the event was brought to the attention of [the] jurors, a different result is certainly possible, if not probable."
The prosecution timely filed this appeal. The order is appealable under section 1238, subdivision (a)(3).
III. DISCUSSION
The Attorney General argues the trial court's order granting a new trial was erroneous for several reasons. As we explain, we reject each contention.
Legal principles
A criminal defendant may move 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." (§ 1181, subd. 8.) In ruling on a motion for a 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. Sutton (1887) 73 Cal. 243, 247-248 (Sutton).) "A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "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." '[Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 524.)
Application of correct legal standard
The Attorney General contends the trial court applied the wrong legal standard in assessing defendant's new trial motion because it determined defendant needed only to establish a probability of a hung jury, as opposed to a probability of a not-guilty verdict. The Attorney General acknowledges that the hung-jury standard was applied by the appellate court in People v. Soojian (2010) 190 Cal.App.4th 491, 521 (Soojian), but contends that Soojian was wrongly decided.
Defendant contends the invited error doctrine bars the Attorney General from claiming Soojian was wrongly decided because the prosecution cited and quoted from Soojian in trial court. We reject defendant's argument since we can discern no "deliberate tactical purpose" for the prosecution's decision to cite Soojian. (People v. Cooper (1991) 53 Cal.3d 771, 827.) --------
In Soojian, the defendant was charged with several crimes relating to the armed robbery of a mother and her son. (Soojian, supra, 190 Cal.App.4th at pp. 494, 503-504.) During the prosecution's case, unexpected evidence was elicited that led the defendant and his counsel to suspect that the defendant's cousin was the perpetrator. (Id. at p. 494.) After his conviction, the defendant moved for a new trial, arguing there was newly discovered evidence showing his cousin was the perpetrator. (Id. at p. 505.) The defendant and the prosecution agreed that a hung jury constituted the "different result" required to prevail on a new trial motion. (Id. at p. 518.) Nevertheless, in denying defendant's motion, the trial court concluded that a different result meant different verdict, i.e. that "the new evidence made it reasonably probable that an objective jury would have found [defendant] not guilty of the charged crimes." (Id. at p. 518.) The appellate court reversed and, agreeing with the parties, held that "when 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." (Id. at p. 521.)
While noting no cases were directly on point, the court provided several reasons supporting its holding. First, it found support from People v. Watson (1956) 46 Cal.2d 818 (Watson), where our Supreme Court established the test for determining whether trial court error amounts to a miscarriage of justice permitting a reversal under state law. (Soojian, supra, 190 Cal.App.4th at p. 519.) Under Watson, a miscarriage of justice occurs when " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (Watson, at p. 836.)" (Soojian, supra,190 Cal.App.4th at p. 519.) The Soojian court explained that it could "discern no significant distinction between the phrases 'a different result' and 'a result more favorable.' Both standards anticipate that the party seeking relief will be in a different, and necessarily a better, position if relief is granted. Both phrases establish a standard the party seeking relief must overcome to have the result in the trial reversed. And it is undeniable that a more favorable result also will be a different result." (Id. at pp. 519-520.) The court then found that under the Watson standard, at least one appellate court has held that a hung jury is a "more favorable result" under Watson, while several other courts have "appeared to presume that a hung jury resulting in a mistrial is a better result than a guilty verdict." (Soojian, supra, 190 Cal.App.4th at p. 520 [citing cases].)
In addition, the court reasoned that "common sense compels the conclusion that a hung jury is a more favorable result than a guilty verdict. A defendant found guilty by a jury will be subject to sentencing, while a hung jury would result in, at most, a retrial of the case." (Soojian, supra, 190 Cal.App.4th at p. 521.) The court also believed that had the Supreme Court in Sutton meant to require a defendant to prove that the newly discovered evidence would result in a different verdict, "we are confident the Supreme Court would have stated so clearly." (Soojian, supra, 190 Cal.App.4th at p. 521.)
Despite the Attorney General's criticism of the hung-jury standard from Soojian, the Attorney General has not affirmatively shown that the trial court relied on Soojian, and therefore erred by following it. The trial court did not mention Soojian or otherwise state it was applying a hung jury standard, and the Attorney General has cited nothing else in the record indicating the trial court relied on such a standard. " '[A]n order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (People v. Carpenter (1999) 21 Cal.4th 1016, 1046.)
Even if we assume the trial court relied on Soojian, we would find no abuse of discretion because we agree with the holding and reasoning of Soojian. In doing so, we note that a number of courts have cited Soojian favorably in concluding that a hung jury is a result more favorable to a defendant. (See People v. Walker (2015) 237 Cal.App.4th 111, 118; People v. Batchelor (2014) 229 Cal.App.4th 1102, 1117; People v. Sanchez (2014) 228 Cal.App.4th 1517, 1535; People v. Mason (2013) 218 Cal.App.4th 818, 826.)
The Attorney General has cited no authority disagreeing with Soojian's holding. Instead, the Attorney General cites a handful of Supreme Court cases that use the terms "result" and "verdict" interchangeably, and claims this means that "result" is synonymous with "verdict." (E.g. People v. Dyer (1988) 45 Cal.3d 26, 51; People v. Long (1940) 15 Cal.2d 590, 608.) We are not persuaded. In none of those cases was the Court called on to interpret the meaning of the word "result" as we have been asked to do here, making it improper for us to read those cases as ascribing a specific meaning to the word.
In any event, even if defendant was required to show a probability of a different verdict, we believe the analysis would be essentially the same as it would be for determining the probability of a hung jury. The analysis for a new trial motion is an objective one that requires us to determine what the trier of fact would conclude during a retrial. (See People v. Green (1982) 130 Cal.App.3d 1, 12; People v. Huskins (1966) 245 Cal.App.2d 859, 862.) Since the test is objective, our analysis would likely be the same regardless of whether we framed it as what a juror would reasonably conclude when presented with new evidence or what a jury would reasonably conclude.
Admissibility of juror declaration
Next, the Attorney General contends the trial court erred by admitting the declaration of a juror who stated he would have had a reasonable doubt about defendant's guilt had he known of the text messages at trial. The Attorney General argues the declaration was admitted in contravention of Evidence Code section 1150, which forbids evidence of a juror's mental processes in assessing the validity of a verdict. The Attorney General further argues the juror declaration focused on what the juror subjectively believed about the new evidence in contravention of the objective standard applied to new trial motions.
Even if we agreed that the juror declaration should have been excluded, any error in admitting it was harmless. The record does not show the court relied on the declaration in granting defendant's motion. Nor does the record show that the trial court applied a subjective standard. Rather, the court was persuaded by the testimony and evidence presented at the hearing on defendant's motion relating to the text messages, as well as by inconsistencies with A.R.'s testimony during the trial.
Newly discovered evidence
The Attorney General claims that although Jackson sent the messages after trial, the messages were not "new evidence" under section 1181 because defendant knew before trial that Jackson told A.R. to falsify her story about being raped. The Attorney General supports this assertion with testimony from the motion hearing by defendant's wife, Jennifer Tatum, who said that before trial, Jackson had "alluded" to causing her daughter to lie about being raped because Jackson was mad at defendant about the DNA test for her own child.
The trial court did not abuse its discretion in concluding the text messages constituted new evidence. Although Tatum testified that Jackson "alluded" to causing A.R. to lie about the rape, Tatum also said that Jackson did not explicitly state that she "put[ ] her daughter up to this." When asked what Jackson said to her, Tatum testified: "She said that she was going to contact his attorney, she said many different things. At one point she said she was going to get him an attorney, at one point she said she was going to contact his attorney, at one point she said was going to help his attorney, that was the best man she had ever known. She knew he didn't do this and she was upset because she thought that she was going to lose him, or he was going to hate her when the DNA test came back. So she got scared and she knew it was wrong. She was going to help him." Tatum's suspicions prior to trial were also partly based on statements Jackson made to defendant's mother, who then relayed the statements to Tatum. In contrast to Jackson's statements before trial, her text messages to Tatum after trial were clear and direct. They were sent directly to Tatum and, as the trial court found, indicated that Jackson planned with A.R. to lie about the rape. The trial court could reasonably conclude the text messages were newly discovered.
People v. Greenwood (1957) 47 Cal.2d 819, a case relied on by the Attorney General, is distinguishable. There, the Supreme Court held the trial court had not abused its discretion in denying a motion for a new trial where, after trial, the defendant presented an affidavit of a defense witness confessing to the crime. (Id. at p. 821.) Prior to trial, the defendant's attorney had " 'heard rumbles' " about the witness being the assailant. (Id. at p. 822.) The Court observed that even if the witness affidavit was true, "defendant knew of this 'situation' prior to the trial[,]" but nevertheless "remained silent while [the witness] gave testimony purporting to implicate some unidentified third person" during the trial. (Id. at p. 822.) Unlike the witness in Greenwood, Jackson did not testify for the defense. Nor is there any indication that the defense should have known with the same degree of certainty that Jackson planned with A.R. to falsify the charges against defendant.
Even if defendant was not reasonably diligent in discovering that Jackson helped falsify the charges against him, our Supreme Court has held that the diligence requirement may be relaxed when the prosecution's case was weak and the newly discovered evidence would probably lead to a different result in a new trial. (People v. Martinez (1984) 36 Cal.3d 816, 825 (Martinez).) In Martinez, the defendant was convicted of burglary related to the theft of various items of machinery from a tool company. (Id. at p. 820.) The only evidence linking defendant to the theft was his palm print lifted from a drill press that had been removed from the building but abandoned near the fence surrounding the building. (Id. at pp. 818, 822.) The defendant moved for a new trial based on the affidavit of a former employee who provided an innocent explanation for why defendant's palm print could have been found on the drill press. (Id. at pp. 821-822.) The trial court denied the motion, finding that the defendant was not diligent in locating the former employee. (Id. at p. 822.)
The Supreme Court reversed. It observed that the prosecution's case "rested entirely on the palm print" and that the "fragile structure of the prosecution case clearly troubled the jury," which deliberated a day-and-a-half for a three-day, one-count trial. (Martinez, supra, 36 Cal.3d at pp. 822-823.) The Court conceded that the trial court could reasonably conclude the defendant failed to use reasonable diligence in obtaining the former employee's testimony. (Id. at p. 825.) Nevertheless, the Court did not believe that "this lack of diligence is a sufficient basis for denial of defendant's motion." (Ibid.) The Court explained: "The requirement of diligence serves 'a public policy which demands that a litigant exhaust every reasonable effort to produce at his trial all existing evidence in his own behalf, to the end that the litigation may be concluded.' [Citations.] That policy, however, itself serves a more fundamental purpose—the determination of guilt and innocence. Loyal to that higher purpose, some California cases suggest that the standard of diligence may be relaxed when the newly discovered evidence would probably lead to a different result on retrial. [Citations.] On the other hand, we have found none which declare that although newly discovered evidence shows the defendant was probably innocent, he must remain convicted because counsel failed to use diligence to discover the evidence." (Ibid, fn. omitted.) The Court then concluded that the new defense evidence "would probably lead to a different result at retrial," and that "[r]eliance upon counsel's lack of diligence to bar defendant from presenting that evidence to a trier of fact would work a manifest miscarriage of justice." (Id. at p. 826.)
The Court's holding in Martinez is a "very limited exception" to the general diligence requirement for new trial motions. (Soojian, supra, 190 Cal.App.4th at p. 516.) Nevertheless, the circumstances that justified a new trial in Martinez are present in this case. The prosecution's case was "fragile." (Martinez, supra, 36 Cal.3d at pp. 822-823.) It was based almost exclusively on A.R.'s testimony, which had hardly any corroboration. Her testimony was sometimes inconsistent with prior statements she made to law enforcement, including details about defendant's gun and whether she and defendant visited an elementary school and motel on the day of the rape. Similar to the jury in Martinez, the jury here appeared troubled by the prosecution's case; it deliberated for two days in a one-count case that had just three days of testimony. Because the prosecution's case was weak and dependent on A.R.'s testimony, it is reasonably probable that evidence showing A.R. fabricated the story about being raped would result in a different outcome at trial. Thus, even if defendant failed to satisfy the diligence requirement, the trial court acted within its discretion in granting defendant's motion.
Admissibility of new evidence
Last, the Attorney General argues that the trial court erred in granting the new trial motion because the text messages were inadmissible hearsay. Defendant responds that the trial court correctly ruled the messages were admissible as statements against Jackson's penal interest under Evidence Code section 1230.
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible. (Evid. Code, § 1200.) An extrajudicial declaration against the declarant's penal interest, however, is admissible as an exception to the hearsay rule. (Id., § 1230.)" (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) " ' "The proponent of such evidence must show 'that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' " ' " (Id. at p. 1108.) "In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant." (People v. Frierson (1991) 53 Cal.3d 730, 745.) A trial court's decision to admit evidence under this exception is reviewed for abuse of discretion. (People v. McCurdy, supra, 59 Cal.4th at p. 1108.)
The Attorney General maintains the messages lacked the requisite trustworthiness because there was no direct evidence that Jackson wrote the messages. The evidence, however, was overwhelming that Jackson sent the messages. The sender of the messages identified herself as "[S.]" Jackson's first name. The phone was registered to "[XXXXXXXX] Jackson" living on Spring Road in Vallejo, a location at which Jackson had been seen by Margaret Morgan, defendant's sister. Morgan also received a call from Jackson on the day the messages were sent asking for Tatum's phone number. And the phone number used to send the messages also placed calls to phone numbers associated with Jackson.
The Attorney General further argues the messages lacked trustworthiness because defendant's family could have planned for Jackson to make up the text messages as a way to get defendant a new trial. The Attorney General has cited no evidence to support this assertion, and it is unreasonable to speculate that defendant's family would wait until after defendant was tried and convicted to have Jackson create text messages that would exonerate defendant.
Last, the Attorney General argues the messages were not against Jackson's penal interest because some of the messages indicated she withdrew from any conspiracy to frame defendant, for example by stating "I told her I changed my mind." We disagree. The trial court could easily conclude that some of Jackson's messages indicated she conspired with A.R. to falsely accuse defendant of rape, both by having A.R. make a false report to the police (§ 148.5, subd. (a)), then having her falsely testify about the rape at trial (§ 118, subd. (a); 182, subd. (a)(1)). The trial court could also conclude that the other messages did not show Jackson's withdrawal from any conspiracy since they do not show she changed her mind before A.R. reported the crime or testified at trial. (See People v. Sconce (1991) 228 Cal.App.3d 693, 702 [withdrawal from conspiracy no longer effective once overt act committed].)
In sum, the Attorney General has not shown the trial court abused its discretion by admitting the text messages.
IV. DISPOSITION
The order granting defendant's motion for a new trial is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.