P. v. Jimenez

Filed 6/18/07 P. v. Jimenez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from judgments of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.

John Edwards Jimenez and Jose Jimenez[1] appeal their convictions of robbery (Pen. Code,[2]  211). True findings were made that each had suffered a prior prison enhancement ( 667, subd. (a)(1)) and each was sentenced to a total term of 11 years.

On appeal, they contend there was insufficient evidence to support the robbery

convictions, the prosecutor engaged in prejudicial misconduct during cross-examination and closing argument, the court's response to the jury's question was inadequate, and their motions for a new trial should have been granted. We affirm the judgments.

FACTS

On December 12, 2004, about 8:00 p.m., John drove slowly by a lone pedestrian, Danny Sanchez, while his passengers, Jose and two juveniles, leaned out of the car's windows and made hand signs of the Logan criminal street gang in Sanchez's direction. John parked the car at the end of the block and waited while Jose and the two juveniles got out of the car and approached Sanchez. When Jose and the juveniles were about 15 feet away from Sanchez, they started repeatedly asking Sanchez, "Where [he] was from," that is, they asked about his gang affiliation, and then told Sanchez, "This is Logan." Sanchez answered he was "from nowhere," meaning he was not affiliated with any gang and told them he lived in the neighborhood. Sanchez lived about a block away.

Jose stood in front of Sanchez while one juvenile went behind Sanchez and the other went to his side. Sanchez was very frightened. Jose started asking to see Sanchez's hat, wallet, and watch. Sanchez told Jose "he wasn't going to get nothing." At one point, Jose tried to reach into the front pouch of Sanchez's sweatshirt to grab a compact disc player but Sanchez pulled away. One of the juveniles warned Sanchez that if he yelled for help, he would shoot him. Sanchez did not see a gun. Jose then punched Sanchez in the face. The juveniles also punched Sanchez. Sanchez tried to cover himself and moved into the street where he hoped he could flag down a passing car for help. Jose and the juveniles were grabbing him, punching him and threatening to kill him.

A van drove by and, although it did not stop to help Sanchez, Jose and the two juveniles ran back to John's car. Almost immediately thereafter, Sanchez was able to flag down a police car. He told the officer he had been mugged and pointed out John's car, which was at a stop sign at the nearby intersection. The police officer told Sanchez to wait while he pursued the car. The officer told him he would send another officer to Sanchez's location. Sanchez noticed his hat and earrings were missing.

The officer, after radioing in the car's license plate number, activated his lights and sirens and stopped the car. He ordered John, Jose and the two juveniles to get out of the car and sit on the curb. John had been driving and Jose had been sitting in the left rear passenger seat. In the rear seat of the car, the police found Sanchez's hat. Sanchez's earrings were not found.

Defense

Jose testified he and the two juveniles visited his friend Carlos and Carlos's mother had made them dinner. Jose called his brother for a ride home and the three of them were standing outside when Sanchez walked by. As Sanchez passed Jose, he bumped Jose's shoulder and made a gesture that Jose interpreted as meaning Sanchez was about to hit him so Jose hit Sanchez first. Jose hit Sanchez more than twice. He did not ask Sanchez about his watch, hat, wallet, or compact disc player or ask where he was from; no conversation occurred before Sanchez bumped into him. Nor did he or the juveniles flash gang signs to Sanchez from a car; they were waiting on the corner for John to arrive by car when the incident occurred. When Jose became aware that his brother had arrived and the juveniles were going to the car, Jose left Sanchez. He did not take Sanchez's hat and was not aware it was in the car until the police found it.

When Jose returned to the car, he said nothing about hitting Sanchez because John was doing him a favor by giving him a ride and he knew John would be upset if he learned he had been in a fight.

DISCUSSION

I

Sufficiency of the Evidence

Jose contends the evidence was insufficient to support his robbery conviction because it did not show a robbery but an assault, and it did not show he knew about a plan to rob Sanchez or was aware that a robbery had occurred. Therefore, John asserts, there was no substantial evidence to support a finding he aided and abetted a robbery.

" 'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' ( 211.) To be convicted of robbery, the perpetrator must intend to deprive the victim of the property permanently. [Citations.] Robbery requires the 'intent to steal . . . either before or during the commission of the act of force' [citation], because '[i]f [the] intent to steal arose after the victim was assaulted, the robbery element of stealing by force or fear is absent' [citation]." (People v. Huggins (2006) 38 Cal.4th 175, 214.) "There is no requirement that the victim be aware that his property is being taken from his presence by force or fear." (People v. Jackson (2005) 128 Cal.App.4th 1326, 1330-1331.) "The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot." (People v. Cooper (1991) 53 Cal.3d 1158, 1165; Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.)

" 'All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . are principals in any crime so committed.' (Pen. Code,  31 . . . .) Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts." (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) "To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (People v. Prettyman (1996) 14 Cal.4th 248, 259, italics omitted.)

"A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) "Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal responsibility. [Citation.] Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime." (Id. at pp. 529-530.)

When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)

(A) Jose's Robbery Conviction

Basically, Jose argues the evidence showed an assault and battery and not a robbery. To support his argument, he points to evidence that Sanchez told the police "some guys just jumped [him]" rather than reporting he had been robbed and that the police officer who initially contacted Sanchez put out a call for an assault rather than a robbery. He also points out that Sanchez admitted that neither his watch nor compact disc player were taken, he had not previously mentioned his earrings were taken, there were no signs the earrings had been forcibly removed, and the earrings were never found. Additionally, Jose places significance on Sanchez's failure to mention at the preliminary hearing and juvenile trial that his hat had been demanded. Jose also points out that since Sanchez did not know when his hat was taken, it was possible it could have fallen off during the altercation and was only later picked up by Jose or the juveniles. Jose asserts this scenario would not constitute a robbery. Jose's argument ignores other evidence supporting the judgment and is unpersuasive.

Sanchez testified that prior to the assault, Jose demanded his watch, wallet and his hat and reached into his pocket to grab his compact disc player. The jury was entitled to believe Sanchez's testimony and to believe that any failure by Sanchez at the earlier hearings to mention the demand for the hat was merely an oversight. Further, even if the jury had doubts about whether Jose had specifically demanded the hat, it does not necessarily follow that no robbery occurred. Regardless of whether Jose or the others specifically demanded Sanchez's hat or his earrings, there was substantial evidence showing a demand for property, the use of force against Sanchez when he refused to turn it over and the taking of his property.

That Sanchez did not know whether the hat was snatched off his head or picked up from the ground is unimportant. The entire incident occurred over a short period, with the use of force and taking of property involving only a matter of seconds.[3] Substantial evidence supports a finding Jose and the juveniles confronted and attacked Sanchez with the intent to take property, used force to do so and by the use of force were able to obtain Sanchez's hat whether taken from his head or the ground. The failure to take all the property demanded also does not lead to a conclusion a robbery did not occur. Sanchez testified that shortly after a van drove by, Jose and the others ran back to the car. A

reasonable inference can be drawn that Sanchez's watch, wallet, and compact disc player were not taken only because Jose and the juveniles were interrupted by the presence of the van. Similarly, the fact that there were no signs the earrings were forcibly removed and were not later recovered does not negate a finding Jose participated in a robbery of other property from Sanchez.

In sum, there was substantial evidence to support the jury's verdict Jose was guilty of robbery by taking Sanchez's hat from his person or immediate presence by the use of force and with an intent to permanently deprive him of it.

(B) John's Robbery Conviction

John asserts there was no evidence showing he knew of a plan to rob Sanchez or saw or heard the robbery while it was occurring.

While there may have been no direct evidence, for example, of a conversation between John and the others in the car discussing the robbery plan or the results of the robbery, such direct evidence is not required to support a conviction. "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.) A conviction based on aiding and abetting a robbery, like other offenses, may be based on circumstantial evidence.

Here, the evidence showed John slowly drove by Sanchez as the others in the car leaned out the car's windows and displayed gang signs at Sanchez. Shortly thereafter, he parked the car and waited while Jose and the others confronted Sanchez. The confrontation occurred only a short distance behind the car, and it was not silent Jose and the juveniles demanded to know Sanchez's gang affiliation, demanded property and punched him. When Jose and the others returned, they had Sanchez's hat, which was later found on the back seat of the car. Only after the others were in the car, did John start driving away from the scene. This evidence was more than sufficient to support a reasonable inference that John was aware that Jose and the others intended to engage in criminal activity, a robbery, and that John encouraged and facilitated the crime by stopping the car, waiting for their return and then driving them away.

II

Prosecutorial Misconduct

John and Jose contend the prosecutor committed two instances of misconduct: (1) during cross-examination by asking Jose whether he had bragged about punching Sanchez when he returned to the car and (2) during closing argument by pointing out that the defense had not called Carlos or Carlos's mother as witnesses to corroborate Jose's story.

" '[A] prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury.' " (People v. Bradford (1997) 15 Cal.4th 1229, 1333.) A defendant is not required to show the prosecutor acted in bad faith or with appreciation of the wrongfulness of his or her conduct, because the prosecutor's conduct is evaluated using an objective standard. (People v. Price (1991) 1 Cal.4th 324, 447.) "To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct." (Ibid.; People v. Bradford, supra, 15 Cal.4th at p. 1333.)

The defendant bears the burden of demonstrating the misconduct was prejudicial. (People v. Williams (1997) 16 Cal.4th 153, 255.) "To be prejudicial, prosecutorial misconduct must bear a reasonable possibility of influencing the . . . verdict. [Citations.] In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner." (People v. Cunningham (2001) 25 Cal.4th 926, 1019; People v. Jackson (1996) 13 Cal.4th 1164, 1240.)

(A) Cross-Examination

The prosecutor, while cross-examining Jose, asked if he had bragged about the "good punch" he threw at Sanchez when he was in the car. Jose said he did not discuss it. He did not want his brother to know about it because his brother was doing him a favor by giving him a ride and would be angry if he knew Jose had gotten into a fight. Jose contends this question was an improper attempt to insinuate the truth of facts in his question, that is, that he had bragged about punching Sanchez in front of his brother.

Jose neither objected to the question nor requested the jury be admonished and therefore he failed to preserve the issue for appeal. This is not a situation where an admonition would not have cured any potential harm. Further, the jury was clearly instructed not to assume that any insinuation suggested by a question to a witness was true and was told that questions were not evidence. (CALJIC No. 1.02) We must presume the jury followed those instructions. (See People v. Holt (1997) 15 Cal.4th 619, 662.) Additionally, Jose admitted he had punched Sanchez and there was no evidence contradicting his assertion that he had not mentioned punching Sanchez when he returned to the car. Finally, we note other evidence supported an inference that John, even without being told about the punching, would have been well aware of the confrontation since he could have watched and heard it himself from his position in the car.

(B) Closing Argument

During closing argument, the prosecutor argued:

"And if Jose's testimony is the truth, then he was not in that car. He was somewhere else at the time. He was over here with Carlos and Carlos's mom.

"Now, there was a failure to call logical witnesses in this case. Why? If Jose Jimenez has an alibi that puts him out of that car, that car that has damning evidence of his guilt and of his brother's guilt, why didn't we hear from Carlos?"

Jose's counsel objected, claiming it was "burden shifting." The court overruled the objection, ruling a failure to call logical witnesses constituted fair comment. The prosecutor then argued:

"Why didn't we hear from Carlos'[s] mom who was right there? They know where she lives. Why? We didn't hear from them, ladies and gentlemen, because this tale from Jose Jimenez was fabricated. . . ."

Jose asserts this argument by the prosecutor "shift[ed] the burden of proof." Noting that the defense has no duty or burden to produce evidence, Jose argues the prosecutor's argument improperly suggested the defense had an obligation to call any witnesses.

We find no error. It is well established that a prosecutor does not commit misconduct by pointing to "a defendant's failure 'to introduce material evidence or to call logical witnesses.' " (People v. Wash (1993) 6 Cal.4th 215, 263; People v. Fierro (1991) 1 Cal.4th 173, 213; People v. Mitcham (1992) 1 Cal.4th 1027, 1051.) Carlos or his mother would have been logical witnesses to call to corroborate Jose's testimony that he had just left Carlos's apartment and was waiting for a ride from his brother.

Contrary to Jose's argument, the prosecutor's remark was only a comment on a weakness in the defense case and it did not suggest the defense had the burden of proving innocence or that the defense had the burden of corroborating Jose's testimony. (See People v. Frye (1998) 18 Cal.4th 894, 972-973 [rejecting argument that comment during closing argument on defense failure to call a witness resulted in shifting the burden of proof].) Moreover, the jury here was fully instructed on the prosecution's burden of proof (CALJIC No. 2.90) and we must presume it followed these instructions. (See People v. Holt, supra, 15 Cal.4th 619, 662; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)

III

Response to Jury Note

During deliberations, the jury asked, "Are we allowed to draw inferences from the lack of a witness testifying?" John's counsel proposed the court should merely direct the jury to CALJIC Nos. 2.60 (no inferences should be drawn from a defendant's failure to testify), 2.61 (a defendant may rely on the state of the evidence) and 2.11 (neither side is required to call all possible witnesses), and tell the jury that if these instructions did not provide an answer to be more specific in its request. John's counsel suggested that only if the jury returned with a more specific request, should the court give additional instructions. Jose's counsel asked the court to instruct the jury that the burden of proof never shifts to the defense and to reinstruct the jury with CALJIC Nos. 2.11 and 2.60.

The court instructed the jury as follows:

"You must not draw any inference from the fact that a defendant does not testify. You must neither discuss this matter nor permit it to enter into your deliberations in any way. (Please refer to CALJIC 2.60 in its entirety).

"In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond an[y] reasonable doubt every essential element of the charge against him. (Please refer to CALJIC 2.61 in its entirety).

"Regarding witnesses other than either defendant, neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of the events. (Please refer to CALJIC 2.11 in its entirety). However, you may draw whatever reasonable inferences you feel logically flow from the fact that either side failed to call a logical witness."

The trial court has a duty to instruct the jury on general principles of law that are closely and openly connected with the evidence and necessary to the jury's understanding of the case. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) If, during deliberations, the jury asks for information on a point of law, the trial court must attempt "to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212;  1138.[4]) "A jury's request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue? Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion? If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept?" (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) The court's duty to clarify jury confusion in response to a jury note " 'does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.' " (People v. Giardino (2000) 82 Cal.App.4th 454, 465.)

When we evaluate the correctness of the instructions given to the jury, we look at all the instructions, not merely a single instruction or a part of that instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) We will not reverse based on an instructional error unless there is a reasonable and not merely theoretical possibility that the instructional error affected the outcome of the trial. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Blakeley (2000) 23 Cal.4th 82, 94.)

Here, the court, when presented with the jury note, attempted to discern the source of the jury's question, observing that the question could have referred to Jose's failure to call witnesses, could have referred to John's failure to testify, or could have referred to the prosecutor's failure to call additional witnesses. Neither John nor Jose dispute that the source of the jury's question was unclear.

Nor does John or Jose contend the court's response to the jury's question involved any misstatements of law. Below, Jose argued that the jury should also have been instructed the burden of proof does not shift to the defendant based on a theory that telling the jury it can draw inferences from the failure to call logical witnesses results in improperly shifting the burden of proof to the defense. As we pointed out in part II, such an inference does not involve any improper shifting of the burden of proof. Accordingly, such instructions were not necessary in the court's response to the jury's note. Further, the jury here was fully instructed on the prosecution's burden of proof and nothing in the court's response to the jury's note undermined those instructions.

John argues supplemental instructions should have been given but does not specify what those instructions should have been. In his reply brief, he asserts that by referring the jury to CALJIC No. 2.60, which tells the jury no inferences can be drawn from a defendant's decision not to testify, the court "focused the jury on appellant's exercising his right not to testify, and simultaneously and erroneously suggested that this was the only non-testifying potential witness entitled to no adverse inference." John did not raise this issue below. Indeed, below, he specifically urged the court to refer the jury to this instruction. Thus, we could find that even if there were error, John invited the error and therefore cannot now complain on appeal. (See People v. Wader (1993) 5 Cal.4th 610, 657; People v. Lucero (2000) 23 Cal.4th 692, 723-724.) Moreover, as we have already pointed out, the jury was entitled to draw adverse inferences from the failure to call logical witnesses (other than a defendant).

IV

Denial of New Trial Motion

John and Jose moved for a new trial on the basis of newly discovered evidence, that is, that Sanchez had expected an economic benefit from testifying at trial. The court held a hearing on the new trial motion where Sanchez, defense attorney Timothy Scott, and district attorney investigator Alex Garcia testified.

Sanchez explained that prior to trial he had been contacted by Garcia who told him about a relocation program, and Sanchez did not pay much attention to him. Sanchez remembered Garcia gave him a brochure, which he did not read. The conversation occurred after Sanchez had received some threats connected with the trial of the two juveniles. Later, Sanchez asked Garcia about help finding a job but Garcia said they could not provide any job assistance. By the time he testified in this case, Sanchez had already moved. He did not receive any money from the district attorney's office for being a witness in the case. When he testified, he did not expect the district attorney's office to help him move, and after trial he was only interested in getting more information about the program.

A few weeks after the trial, Sanchez saw Scott at a shopping mall and asked Scott about the outcome of the trial. After Scott told him both defendants were convicted, Sanchez asked for the district attorney's phone number. Scott responded by repeatedly asking why Sanchez wanted the phone number. Sanchez told him he wanted to find out more information about a program that had been offered to him. Scott asked about what kind of program it was and what benefits were available. Sanchez said he did not really know. He may have told Scott that the program might help him get back on his feet and provide help with moving. He never used the phrase "economic benefits" when talking with Scott.

Scott's version of the meeting with Sanchez was slightly different. Scott testified that when he asked Sanchez why he wanted the prosecutor's phone number, Sanchez said, "I want to follow up on my, you know, benefits" and when Scott asked what kind of benefits, Sanchez answered, "You know, like my economic benefits." Sanchez said he thought the program would provide help relocating, finding a job or getting back on his feet because he had been a witness.

Garcia testified that he discussed with Sanchez threats that had been made against Sanchez and prepared a threat assessment report.[5] He told Sanchez the district attorney's office could provide help with relocating. About a month after the trial, Sanchez called him asking for help with getting a job and Garcia told him he did not do that.

The court found that the defense could have uncovered the information before trial had it exercised reasonable diligence since Scott was aware of the threats against Sanchez before trial and it was general knowledge that witnesses who are threatened may receive protection, including relocation assistance. The court also noted that relocation assistance is akin to other common types of witness assistance, such as the availability of restitution or offering reimbursement for mileage, matters which defense counsel conceded were not the type of inducement that had to be disclosed before trial by the prosecution as material exculpatory evidence.

The court found Sanchez was a credible witness who had not paid attention to Garcia's offer of relocation assistance because he had already moved. The court noted Sanchez had a "limited vocabulary" and thus apparently found it unlikely he had used the phrase "economic benefits" as asserted by Scott. The court found there was no evidence that Sanchez felt pressured to testify in any particular way. The court observed Sanchez had testified consistently at the juvenile and the preliminary hearings, which occurred months before the offer of relocation assistance and had given the same story to the police immediately after the incident. Finally, the court noted that impeaching Sanchez with the offer of relocation assistance was "a double-edge sword" since it would lead to testimony about how Sanchez had been threatened by gang members on several occasions and had testified despite his fear.

Section 1181, subdivision (8) authorizes a new trial based on newly discovered evidence that is material to the defense and with reasonable diligence could not have been discovered and obtained before trial. "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." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.)

We will reverse only if the court's denial of a motion for a new trial constituted a clear abuse of discretion. (See People v. Ochoa (1998) 19 Cal.4th 353, 473-474; People v. Callahan (2004) 124 Cal.App.4th 198, 209-210.) "The appellant has the burden to demonstrate that the trial court's decision was 'irrational or arbitrary,' or that it was not ' "grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." [Citation.]' " (People v. Andrade (2000) 79 Cal.App.4th 651, 659, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)

The defense was aware of the threats and could have discovered the information before trial; relocation assistance is not uncommon in gang-related cases. The assistance was not offered in exchange for testimony and it was not dependent on Sanchez testifying at trial. (Contrast People v. Westmoreland (1976) 58 Cal.App.3d 32, 44-46 [leniency offered in exchange for testimony].) The evidence was not reasonably likely to result in different verdicts. The proposed impeachment involved a minor, collateral matter. Defendants argue it could show Sanchez had some bias or motive to testify favorably to the prosecution's case. Any such motive, however, was undercut by Sanchez not paying much attention to the relocation offer when it was made, he had moved before trial and he, in fact, never received any benefits. It was also undercut by his trial testimony, which was fundamentally consistent with the information he gave the police before any offers of assistance were made. Moreover, introduction of the evidence would have resulted in placing before the jury detrimental information about gang-related threats made in connection with the juvenile case. Thus the evidence could have, or more likely would have, resulted in impeaching Jose rather than Sanchez.

Under these circumstances, we find no abuse of discretion in the trial court's decision to deny a new trial.

DISPOSITION

The judgments are affirmed.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

AARON, J.

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[1] The defendants share the same last names and for the sake of clarity we refer to the defendants by their first names.

[2] All statutory references are to the Penal Code unless otherwise specified.

[3] Sanchez testified it lasted about 15 seconds. Jose testified it lasted about 5 to 10 seconds.

[4] Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."

[5] The court conducted an in camera review of the threat assessment report prepared by Garcia and found it contained no discoverable material.