P. v. Le Grand

Filed 7/31/07 P. v. Le Grand CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Corbett Le Grand was charged by information with one count of sexual penetration of a minor (Pen. Code, 289, subd. (h)) and one count of lewd and lascivious acts on a child under the age of 14 (Pen. Code, 288, subd. (a)).[1] The information alleged a prior sex offense ( 667.51, subd. (a), 667.6, subd. (a)) and strike conviction ( 667, subds. (b)-(i)) as to each count based on defendants 2001 conviction for violation of section 288, subdivision (a), and as to count two also alleged aggravated circumstances based on the prior conviction ( 667.61, subds. (a), (d)). The jury found defendant guilty as charged and found the special allegations true. The trial court sentenced defendant to a prison term of 25 years to life. Defendant contends that the trial court erred in denying his motion for a new trial based on the sole ground that counsel was not reasonably diligent in discovering new evidence.

In a petition for a writ of habeas corpus defendant further argues that he was denied his right to effective assistance of counsel due to counsels failure to investigate and present an alibi defense. We previously ordered the writ to be considered with the appeal. We have disposed of the habeas petition by separate order.

                                                                                                                                                                I.            Background

For a couple of months in early 2003, defendant was employed as gopher and under-the-table employee for a charter bus company owned by Kevin Lee. Defendant did various odd jobs, including washing and painting the buses and mechanics work. The buses were stored at Lees house, where he lives with his two sons, his girlfriend, and his girlfriends daughter, Crystal.[2] Crystal considers Lee a step-father or uncle figure.

One evening, defendant went to Bolado Park with Lee and 13-year-old Crystal to get a place in the Pop Warner football registration line for Lees son. Originally, the three thought there would be a long line for the limited sign-up spots and planned to camp out. When they got to the park, they realized no one was there and that there was no need to spend the night. By the time they decided to leave, however, the gates to the park were locked.[3]

All three slept in the back of Lees Suburban, with Crystal between the two men. After Lee fell asleep, defendant started touching Crystal. He fingered her, slipping his hand into her pants, under her underwear and into her vagina. Crystal heard defendant unzip his pants and he attempted to unbutton her pants. Crystal tried to wake Lee. When Lee awoke, Crystal asked him to take her to the bathroom. He told her to have defendant take her. Defendant walked her to the bathroom and asked her if she was okay. When they returned to the Suburban, Crystal moved to the front seat.

Crystal did not tell anyone for a year; she was scared and blamed herself for not being able to stop it. She finally told a trusted boyfriend about the incident because she couldnt handle it anymore. She then told Lee and her mother. Crystal testified she wants defendant to go to jail and pay for what he did, but she denied telling an officer that she wanted to sue him for mental distress. Lee acknowledged he made an annoying phone call to defendants father after learning of the assault, in which he said he would have killed defendant had he learned of the assault the night it occurred.

The prosecution played a videotape and an audiotape for the jury containing defendants admissions to police of sexual conduct with five girls under the age of 18. The prosecution also submitted evidence that defendant had been convicted of a lewd or lascivious act with a child under the age of 14. Defendants probation officer testified that in March 2003 defendant was on probation and that as a condition of his probation, he was prohibited from being in the company of minors under the age of 18.

The information alleged the offenses occurred between March 1 and April 1, 2003. Crystal testified the incident occurred sometime at the end of February, beginning of March[,] but could not specify the date. She did say, however, that they went to Bolado Park to camp out to do football sign-ups the next day for Kevins son. Lee testified that the incident did not occur the night before the sign-ups, but several nights before. He later clarified that the one night he camped out with Crystal and defendant was a couple days before the registration date. Lee thought that the date of sign-ups was March 1, but acknowledged he could be wrong on that.

To confirm the date, the prosecution called the San Benito County Fairgrounds secretary to testify regarding a rental agreement with the local Pop Warner Football League. The agreement allowed Pop Warner to use the park for registration on March 15, 2003. The park also agreed to let registrants camp out prior to the date of registration. The secretary testified that Lee paid the park for either two nights of camping or for two spaces. The fact that Lee paid early suggested the payment was for two nights.

The defense presented a general alibi defensethat defendants father had a contract with defendant from 2002 through April 2003 in which he agreed to be home by 9:00 p.m. on most nights. His father acknowledged that there were exceptions and that defendant spent some time living with a girlfriend. Two rebuttal witnesses testified that defendant was on a camping trip with them in late winter or early spring 2003 and told them that he had stayed at Lees house on a handful of occasions and was interested in residing on their property. Defendant was at the campsite past 9:00 p.m. and, according to one witness, spent the night.

Following defendants conviction, defense counsel filed a motion for a new trial based on newly discovered evidence. Post-trial, defense counsel obtained declarations from three witnesses stating that the day the victim stated the crime occurred, the defendant was not in Hollister, nor San Benito County. A declaration by Kristyn Kerby stated that she celebrated her birthday on the night ofMarch 15, 2003, at a bar in Fremont in the company of her mother, her sister, defendant, and a friend. The group rented rooms at a hotel near the bar, where they went Saturday afternoon, and then spent the night. The group returned to Hollister on Sunday afternoon, March 16. Kerbys mother and sister submitted corroborating declarations.

In opposition to the motion for a new trial, the prosecution argued that the evidence was not newly discovered because defendant would have known about being out of the county with other people before trial[,] and the defense cannot show that the defendant could not have discovered the evidence earlier using reasonable diligence. At the hearing on the motion, the prosecution pointed out that the March 15, 2003 date was provided to the defense on August 17th of last year and offered testimony to confirm that notice.[4] The prosecution also argued that the new alibi defense was inconsistent with the general alibi defense presented at trial. The court took a brief recess to consider defendants authorityPeople v. Martinez(1984) 36 Cal.3d 816 (Martinez). After reviewing the case, the court denied the motion on the ground that there is no evidence that shows the defendant could not have discovered the newquote, newly discovered evidence prior to trial and produce it, and the motion for new trial is denied.

                                                                                                                                                                 II.           Discussion

Defendant argues that the court erred in denying his motion for a new trial. Citing Martinez, supra,36 Cal.3d 816, defendant contends specifically that the court erred in focusing solely on the diligence prong of the motion for new trial without addressing in any way the significance and impact of the newly-discovered evidence.

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [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. (People v. Delgado (1993) 5 Cal.4th 312, 328, internal quotation marks and citations omitted.)

The trial court may grant a new trial if 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.) A defendant on a motion for new trial based on newly discovered evidence must show inter alia that the evidence is in fact newly discovered; that it is not merely cumulative to other evidence bearing on the factual issue; that it must be such as to render a different result probable on a retrial; and that the moving party could not, with reasonable diligence, have discovered and produced the evidence at trial. (People v. McDaniel (1976) 16 Cal.3d 156, 178; see also Martinez, supra, 36 Cal.3d 816, 821.)

Section 1181 should not, however, be interpreted to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law. (People v. Fosselman (1983) 33 Cal.3d 572, 582.) Our high court, in Martinez, supra,36 Cal.3d at page 825, explained that trial courts must occasionally look beyond counsels diligence, or lack thereof, in considering a motion for new trial: 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. Thus, the court held, in cases in which the newly discovered evidence would probably lead to a different result at retrial, it is error to focus on the diligence prong to deny a motion for new trial. (Id. at pp. 823, 825-826 [noting that [n]umerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant].)

We find no abuse of discretion in this case. Even disregarding the issue of counsels diligence, defendants motion for a new trial falls short. The newly-discovered alibi evidence refers only to the evening of March 15, 2003 and thus relates to the one date for which the evidence shows that the incident did not occur. Lees and Crystals testimony, in combination with the rental agreement and the secretarys testimony, indicate that the incident occurred prior to March 15 (the registration date), most likely on the evening of March 13 or March 14, 2003. Nothing in the record suggests that the incident occurred on the evening of March 15, 2003. To grant a new trial, the newly discovered evidence must be likely to lead to a different result on retrial. (See Martinez, supra, 36 Cal.3d at pp. 821, 826.) That is clearly not the case here, in which the purported alibi is not for the date the offenses allegedly occurred and the new evidence in no way contradicts or diminishes the probative value of Crystals testimony. There is no basis in the record to overturn the trial courts ruling on the new trial motion.

                                                                                                                                                              III.         Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P.J.

______________________________

Duffy, J.

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[1] All further statutory references are to the Penal Code unless otherwise noted.

[2] We refer to the victim by her first name to protect her privacy.

[3] Lee thought that he and defendant spent more than one night at Bolado Park prior to the sign-ups, but Crystal was there only one night.

[4] A supplemental police report attached to the complaint (filed with the court in August 2004) states that the president of Pop Warner told the police that the date of registration was March 15, 2003.