Opinion
H028233 H029168 H030783 H030954
5-17-2007
THE PEOPLE, Plaintiff and Respondent, v. MAURICE A. VASQUEZ, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS POSADAS, Defendant and Appellant. In re MAURICE A. VASQUEZ, on Habeas Corpus. In re JUAN CARLOS POSADAS, on Habeas Corpus.
NOT TO BE PUBLISHED
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
THE COURT:
It is ordered that the opinion filed herein on April 25, 2007, be modified as follows:
1. On page 2, following the first sentence of the first paragraph, two new sentences are added:
The jury convicted defendants as charged except that the jury could not reach a verdict on the count against Posadas of attempted dissuading a witness. The trial court declared a mistrial as to that count.
2. On page 7, immediately prior to section C., a new paragraph is added.
Later on the night of his arrest, Posadas telephoned Victim on his cell phone. The transcript of the recorded conversation reveals that Posadas told Victim "No . . . listen . . . no . . . . no . . . we were just going to have a conversation man, but, well, it cant happen because I am here." He told Victim, "[T]hey are going to call you so that you go over to that thing, to that thing. I mean, do you plan on going or what?" Victim replied that "they took fingerprints and all" to which Posadas responded, "They always say that but it is too soon to know. I mean . . . unless . . . do you know how to clean it?" After Victim failed to respond, Posadas repeated, "Do you know how to clean it all? Just say that you dont remember." At this point the call was cut off. Posadas called back three times, pleading with Victim to answer. The next morning, Victim took his phone to the police station and reported the calls.
3. On page 18, paragraph three, sentence three is deleted and replaced with the following sentence:
The BNE officer testified that Victim was known to be associated with persons involved with the manufacture or sale of methamphetamine, the court allowed defendants to ask Victim if he furnished cocaine to someone in 1993, Victim admitted having done so, and the court allowed evidence of Victims recent perjury conviction.
4. On page 24, the second full paragraph, delete the first, second and third sentences and replace them with the following:
Evidence of a $30,000 debt might explain why Victim would have made up a story about kidnapping but it is inconsistent with Vasquezs testimony that Victim and Posadas were negotiating a drug deal during which Victim stated that he wanted to "see some money." It also provides an alternative motive for the prosecution—Posadas might have kidnapped Victim to pressure him to make good on the $30,000.
5. On page 28, the second full paragraph, the last sentence is deleted and replaced with the following:
Vasquezs evidence shows that counsels church held a golf tournament on the day after this case went to the jury.
6. On page 29, the second paragraph, the second sentence, delete the word Saturday.
7. On page 29, following the second paragraph, a new paragraph is inserted:
Vasquez also contends he is entitled to a new trial based on the newly discovered evidence contained in Posadass new trial motion. " `[N]ewly discovered evidence is a basis for [habeas corpus] relief only if it undermines the prosecutions entire case. It is not sufficient that the evidence might have weakened the prosecution case or presented a more difficult question for the judge or jury. . . . " `[E]vidence which is uncertain, questionable or directly in conflict with other testimony does not afford a ground for relief upon habeas corpus. [Citation.] `[N]ewly discovered evidence does not justify relief unless it is of such character as will completely undermine the entire structure of the case upon which the prosecution was based. [Citation.]" (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1322.) For the reasons set forth in section III, E, above, even if the evidence is considered to be newly discovered, it is not of such a character that it would completely undermine the prosecutions case nor does it unerringly point to innocence.
There is no change in the judgment.
Vasquezs petition for rehearing is denied.
Posadass petition for rehearing is denied.
Premo, J.
Rushing, P.J.
Elia, J.