Opinion
D069399
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. CODY ALEXANDER WILLIAMS, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVI1102456) APPEAL from an order of the Superior Court of San Bernardino County, Eric M. Nakata, Judge. Affirmed. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Cody Alexander Williams guilty of resisting an executive officer, reckless evasion of a peace officer, driving a motor vehicle while under the influence of alcohol, driving a motor vehicle with a blood alcohol level of 0.08 or higher and battery on a peace officer, a misdemeanor. The trial court placed Williams on three years' formal probation for all counts, and the court conditioned probation on the service of 244 days in the custody of the San Bernardino County Sheriff. In a prior appeal, we rejected Williams's challenges to his convictions, but concluded that the trial court erred in denying discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). (People v. Williams (Sept. 26, 2014, D065613) [nonpub. opn.] (the prior opinion).) Specifically, the trial court erred in failing to release a citizen's complaint and resulting investigation against Williams's arresting officer, San Bernardino County Sheriff's Deputy Nick Downey, located in Downey's sealed personnel records at pages 29 to 57.
Accordingly, we conditionally reversed the judgment and remanded the matter to order disclosure of these records and to provide Williams an opportunity to demonstrate a reasonable probability that the newly disclosed records would have led to relevant, admissible evidence that he could have presented at trial and that would have resulted in a different outcome at trial had the evidence been initially disclosed. In the event Williams demonstrated that he was prejudiced by the denial of the discovery, the trial court was required to order a new trial. Alternatively, if Williams was unable to demonstrate prejudice as a result of the denial of discovery, the judgment was to be reinstated.
The trial court conducted proceedings as directed, denied Williams's motion for a new trial and reinstated the judgment. Williams appeals, contending the trial court abused its discretion in denying his request for a new trial based upon review of previously sealed records that we ordered disclosed. Williams also asserts that the court erred in denying the motion based on other newly discovered information. We affirm.
FACTUAL BACKGROUND
The facts underlying Williams's crimes are set forth in our prior opinion, of which we take judicial notice. (People v. Williams, supra, D065613; Evid. Code, § 451, subd. (a).) To summarize, in the early morning hours of October 23, 2011, Downey was patrolling the Phelan area when he pulled over an ATV, driven by Williams, after he observed the ATV swerving across the road and being driven on the wrong side of the road. After Williams failed to comply with repeated commands to get off the ATV, Downey tried to pull Williams off the ATV. Williams punched Downey in the face and continued to try to punch Downey.
Downey deployed a taser onto Williams's chest and back, but he saw no effect on Williams. Downey struck Williams with his baton as Williams continued swinging his fists at Downey, causing Downey to believe that Williams was intoxicated or possibly on PCP. When Downey stepped back to reevaluate the situation, Williams got off the ATV, assumed an aggressive stance with balled fists and approached Downey while swinging his arms. Downey hit Williams in the head with his baton in an attempt to knock Williams out and was eventually able to handcuff Williams. Analysis of Williams's blood revealed a blood alcohol level of 0.23 percent. Williams suffered a concussion and required surgery to his eye socket.
DISCUSSION
A. Additional Background
The Pitchess material that should have been disclosed to Williams concerned a December 2009 citizen's complaint filed by Victor Griego against Downey. Griego was arrested in August 2009 for driving under the influence of alcohol. Griego claimed that Downey threw him to the floor, dragged him to a jail cell and then beat him unconscious. In support of the new trial motion, defense counsel presented Griego's declaration. Defense counsel also presented the complaint in a federal civil suit filed in 2011 against Deputy Downey and others regarding a 2009 incident involving Downey which defense counsel knew about before Williams's trial. Williams submitted evidence regarding separate incidents that occurred in 2013 describing alleged use of excessive force by Downey. Finally, defense counsel also referenced an incident where Downey and other officers beat a suspect who was fleeing officers on horseback. This incident resulted in a 2016 felony use of excessive force charge against Downey.
The prosecution presented Downey's declaration, the declaration of Sheriff's Deputy Teresa Eakins regarding the incident and a copy of Downey's administrative interview regarding the Griego incident. The trial court also viewed a DVD of the Griego incident and heard a recording from Downey's belt recorder when Griego was in a jail cell and out of view of jail video cameras. The court heard the testimony of another sheriff's deputy who spoke with Griego after the incident regarding Griego's desire to file a complaint.
The trial court concluded that the Griego incident did not warrant a new trial because Griego was not credible, the evidence would confuse the jury and unduly consume time. The trial court refused to consider the other incidents citing Evidence Code section 352 (section 352) and because these incidents were beyond the scope of our remand order.
B. Analysis
We review for abuse of discretion a trial court's ruling on a motion for new trial. (People v. Thompson (2010) 49 Cal.4th 79, 140.) We will not reverse the ruling on a new trial motion " ' "absent a manifest and unmistakable abuse of that discretion." ' " (Ibid.) "[W]hen 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." (People v. Soojian (2010) 190 Cal.App.4th 491, 521.) The trial court may consider the credibility of the evidence as well as its materiality in determining whether introducing the evidence in a new trial would make a different result reasonably probable. (People v. Howard (2010) 51 Cal.4th 15, 43.) A " 'new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party." (People v. Hall (2010) 187 Cal.App.4th 282, 299.)
Williams contends that the trial court abused its discretion in denying his request for a new trial based on the newly discovered Griego incident. The trial court, however, concluded that the Griego incident did not warrant a new trial because Griego was not credible, and the evidence would confuse the jury and unduly consume time. In rendering its decision the court had before it the declaration of a sheriff's deputy that observed Downey's interaction with Griego, but did not see Downey strike Griego. Downey stated during an administrative interview that he never struck Griego. The court viewed a video recording of the incident and concluded that, while Griego did get down on his knees, the video did not support Greigo's claim that Downey dragged him to a cell. While there was no video available of Griego inside the cell, the trial court heard an audio recording of Downey's interaction with Griego inside the cell. In denying Williams's motion for a new trial the trial court concluded that Griego's claim was incredible. A finding that the new evidence lacks credibility is a proper basis to deny a motion for new trial. (People v. Earp (1999) 20 Cal.4th 826, 890 [no abuse of discretion where trial court found new evidence " 'inherently untrustworthy . . . and not worthy of belief' "].) On this record, the trial court did not abuse its discretion in denying the new trial motion.
Williams next contends that he is entitled to a new trial based on declarations from two individuals regarding separate incidents that occurred in 2013 describing alleged use of excessive force by Downey and a 2016 incident resulting in a charge against Downey for use of excessive force. Williams seeks to introduce this evidence to prove that Downey has a proclivity to use excessive force when effectuating an arrest and that Downey used excessive force against him. For purposes of analysis, we will assume without deciding that consideration of these subsequent incidents is not beyond the scope of our remand order.
The record does not reveal how counsel discovered these subsequent incidents as, in his initial appeal, Williams did not ask us to remand with directions allowing him to file a second Pitchess motion to look for any incidents of excessive force that occurred after the date of his first Pitchess motion.
While not entirely clear from the record, it appears that, in its final comments regarding application of section 352, the trial court took into consideration the 2013 and 2016 incidents. Accordingly, we examine whether the trial court properly applied section 352 in denying Williams's motion for a new trial. A trial court has broad discretion under section 352 to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence of these subsequent arrests would invite a trial within a trial on collateral issues thus leading to an undue consumption of time, creating a substantial danger of confusing the issues and misleading the jury. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457 [section 352 does not allow " 'an unlimited inquiry . . . into collateral matters' "]; see also People v. Jones (2003) 30 Cal.4th 1084, 1109 [section 352 properly applied to exclude evidence that was "not particularly probative" and "would have required evidence of the details of an otherwise unrelated crime"].) The trial court properly concluded that evidence of these subsequent incidents would have been inadmissible under section 352 at a new trial. Accordingly, the trial court did not abuse its discretion in denying Williams a new trial based on these subsequent incidents.
Additionally, while not addressed by the trial court, the primary purpose of this new evidence would be to contradict the testimony of Officer Downey regarding his use of force on Williams. However, a new trial motion is properly denied where the only value of the testimony is to impeach or to contradict a witness's prior trial testimony. (People v. Hall, supra, 187 Cal.App.4th at p. 299.) --------
Finally, Williams appears to argue for the first time in his reply brief that the trial court should have considered a 2011 complaint filed against Downey in federal court, which was seven months before his encounter with Downey. As a preliminary matter, although Williams mentioned this 2011 complaint in his opening brief, he did not present any argument and we deem it forfeited. (People v. Tully (2012) 54 Cal.4th 952, 1075 ["It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party."]; In re Daniel M. (2003) 110 Cal.App.4th 703, 708 [issue forfeited where party "develops no argument and cites no supporting legal authority for this proposition"].)
In any event, even exercising our discretion to consider this matter on its merits, the trial court indicated at the hearing on the new trial motion that it had read the record in the civil suit filed against Downey in 2011. Moreover, defense counsel also conceded at the hearing that he knew of this 2011 incident and the subsequent complaint against Downey before Williams's trial, but decided not to use the incident at trial because counsel did not know to what degree Downey had beat the complainant. Counsel's concession at oral argument is binding on his client. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 475.) Thus, the 2011 incident, to the extent defense counsel offered it in support of Williams's new trial motion, did not qualify as newly discovered evidence.
DISPOSITION
The order denying the motion for new trial and reinstating the judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. HALLER, J.