P. v. Maestas

Filed 10/12/07 P. v. Maestas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A jury found defendant John David Maestas guilty of assault with a deadly weapon or with force likely to produce great bodily injury and found true the special allegation that he personally inflicted great bodily injury and used a deadly weapon during the commission of the crime. His motion for new trial based on newly discovered evidence was denied, and the trial court sentenced him to an aggregate term of three years in state prison.

On appeal, defendant contends the trial courts denial of his motion for new trial was an abuse of discretion. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and the victim, his longtime friend Robert Valdez, hung out with each other on a daily basis. Over the course of two or three days prior to September 24, 2004, defendant, Valdez, and another friend, Joseph Scott Blake, partied with friends at the Inn Cal Motel, smoking methamphetamine and marijuana for hours on end without sleep.

Valdez left the motel at approximately 11:00 p.m. or 12:00 a.m. on September 23, 2004, and went home to sleep. Defendant and Blake finally left the motel at approximately 7:00 a.m. the next morning and walked to defendants mothers house on Blackswain Street.^[1] They called Valdez and told him to come over to hang out and smoke some marijuana.

When Valdez arrived at the house on Blackswain Street later that morning, the three men made some calls to obtain some marijuana. Valdez left the house and walked down the street to meet some friends at the store, but when they failed to show up, he walked back to the house and smoked a cigarette in the backyard with Blake.

Valdez eventually took some marijuana from Blake, went inside, and sat on one of the couches in the living room to watch television and roll a blunt.^[2] Defendant, who was sitting on the other couch, said everyone was probably burnt, meaning they were coming down from the methamphetamine.^[3] Defendant asked Valdez if he would fuck Lil Kim, the artist singing in the music video they were watching on television. When Valdez turned his body toward the television to get a better look, defendant approached him from behind and stabbed him with a knife in the back of the head, the left shoulder, and the cheek.^[4] Valdez grabbed defendants wrists and wrestled with him until Blake came in from the backyard and separated them.

Valdez sat back down on the couch and Blake noticed he was bleeding. Valdez looked for his cell phone and when he could not find it, he walked out the front door and started walking home. Defendant followed, then turned and ran out the back door and across the freeway. One of the neighbors, Leland Wright, noticed Valdez in the front yard and tried to stop the bleeding while someone else called for help. When Wright asked Valdez if he had been hit by a car, Valdez told him no and said, John David [Maestas] stabbed me.^[5] In the ambulance on the way to the hospital, Valdez told police he had been stabbed by the defendant and admitted they had taken methamphetamine the night before. Police at the scene discovered a knife handle on one of the sofas in the house and a knife blade next to the coffee table.

In the meantime, defendant walked to the home of his friend, Jana Tomasi. He had blood on his shirt and his thumb was cut and bleeding. Defendant first spoke with Mattie Lopstain, a friend of Tomasis and the former girlfriend of both defendant and Valdez. Defendant told Lopstain that Valdez tried to attack him with a knife and defendant took it away from him.

Defendant later told Tomasi he and Valdez had gotten into a fight, and said, [I] was just defending myself. Several times when Tomasis phone rang, defendant told her not to let anyone know he was there. The police arrested defendant at Tomasis house several hours later.

During a postarrest interview by police, defendant, who was tired and fidgety and appeared to be under the influence of a controlled substance, admitted he intentionally stabbed Valdez, but denied seeing a weapon in Valdezs hands or being threatened by Valdez.

By indictment, defendant was charged with attempted voluntary manslaughter (count one), assault with a deadly weapon or by means of force likely to produce great bodily injury (count two), and being under the influence of a controlled substance (count three). The indictment alleged that, in committing counts one and two, defendant personally inflicted great bodily injury and personally used a deadly weapon. Prior to trial, counts one and three were dismissed in the interest of justice.

Blake, Valdez, and defendant all testified at trial. Valdez testified he and defendant were close friends who hung out together. Prior to the stabbing incident, they stayed up for several days straight at the Inn Cal Motel smoking methamphetamine and marijuana. When Valdez arrived at the Blackswain house the next day, he was not feeling the effects of methamphetamine because he had slept seven hours the night before and had eaten dinner and breakfast. According to Valdez, he and defendant were sitting in the living room watching television and, when Valdez turned his body to look at the television, defendant snuck up behind him and stabbed him without provocation. He grabbed defendant and struggled with him until Blake came in and pulled them apart.

Valdez testified that, prior to the incident, he carried a knife with him all the time, but stopped carrying it about a month before the stabbing. He also testified that he did not have a knife during the incident and did not threaten defendant or lunge at him.

Blake testified that Valdez had been moody the night before at the motel, and that Valdez had his knife with him at the motel and at the Blackswain house the next day. Blake said that prior to the stabbing, defendant and Valdez had been joking around in the kitchen and, when he went outside to smoke a cigarette, they were both sitting in the living room talking about what was on television. He finished his cigarette and heard muffled talking from inside. When he approached the patio door, he saw Valdez and defendant interlocked, grabbing each other and wrestling, and heard them cussing and speaking out of anger. He did not see a knife in either Valdezs or defendants hands. Blake ran over and broke up the fight. When Valdez dropped down on the couch, Blake saw that he was bleeding and called the police.

Defendant testified that he and Valdez consumed approximately $140 worth of methamphetamine at the Inn Cal Motel during the days preceding the incident. He noticed Valdez sulking at the motel and assumed it was because Lopstain had been flirting with defendant. However, when defendant and Blake tried to talk to him about it, Valdez refused to talk.

According to defendant, at the time of the stabbing, he was talking to Valdez and trying to make up with him from the night before, because he [Valdez] was upset about Mattie [Lopstain] . . . . After some discussion between the two, Valdez finally said, Aint no one scared of you and stood up and faced defendant with his fists clenched. Defendant testified that he thought he was going to get attacked, so he stood up to defend himself and they both started swinging. As they wrestled with each other, Valdez said, Nigga, Ill kill you and reached for his belt area where he usually kept his knife.^[6] Defendant grabbed a kitchen knife that was on the coffee table to defend himself. He swung at Valdez, stabbing him. When Blake came in and separated them, defendant saw the blood on Valdez and left because he got scared and went into shock.

The jury returned a verdict of guilty as to count two and found the special allegations true.

Defendant filed a motion for new trial based on newly discovered evidence: an affidavit signed by Blake attesting that he did not tell the truth at trial, that he actually heard Valdez say to defendant, Ill kill ya nigga, that Valdez told Blake, If you repeat what I said or say what you heard me say to John [the defendant], Ill kill you too, nigga, and that he did not testify regarding those facts at trial out of fear and the threat of repercussions from Robert Valdez. Following a hearing, the court denied the motion.

The court sentenced defendant to the middle term of three years on count two, three years on the great bodily injury enhancement (stayed) and one year on the knife use enhancement (stayed), for an aggregate sentence of three years in state prison. Defendant filed a timely notice of appeal.

DISCUSSION

Motion For New Trial

Defendant contends the trial court abused its discretion in denying his motion for new trial. Specifically, defendant argues: (1) the evidence is newly discovered; (2) the evidence is not merely cumulative to other evidence bearing on the same factual issue; (3) defendant could not, with reasonable diligence, have discovered and produced the newly discovered evidence at trial; and (4) it is reasonably probable the newly discovered evidence would produce a different result on retrial. Assuming, as the trial court did, that the first three contentions are true,^[7]we conclude the fourth contention has no merit.

Penal Code section 1181, case 8, authorizes the trial court to grant a motion for 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. The defendant must produce at the hearing . . . the affidavits of the witnesses by whom such evidence is expected to be given . . . .

To prevail on this ground for a motion for new trial, the evidence must be newly discovered, the proponent could not have found it earlier with reasonable diligence, it cannot be cumulative, and it must make acquittal reasonably probable on retrial. (People v. Turner (1994) 8 Cal.4th 137, 212.) Assuming the defendant satisfies the first two criteria, the latter two are different applications of the same principle, requiring a strong showing of highly probative new evidence. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, 95, p. 127.) New evidence calculated merely to discredit a witness at the trial is considered of slight importance unless the case was weak and the evidence completely discredit[s] the principal witness. (Id., 96, pp. 128, 129.)

We review the trial courts denial of a motion for new trial for abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328; see People v. Williams (1988) 45 Cal.3d 1268, 1318.)

The newly discovered evidence defendant offered as grounds for his motion for new trial was Blakes revised version of the facts that he heard Valdez say Nigga, Ill kill you to defendant and was also himself the subject of a threat from Valdez that he would be killed if he repeated what he had just heard. That new information is contradictory to Blakes testimony at trial, which he now admits was false but claims he was afraid to tell the truth for fear of retaliation from Valdez.

The role of the trial court in deciding a motion for new trial based upon a witnesss recantation is to determine whether the new evidence is credible, i.e., worthy of belief by the jury. That determination is made after a consideration of all the facts pertinent to the particular issue. The trial court is not the final arbiter of the truth or falsity of the new evidence. (People v. Minnick (1989) 214 Cal.App.3d 1478, 1482, citing People v. Cole (1979) 94 Cal.App.3d 854 (disapproved on other grounds in In re Kelly (1983) 33 Cal.3d 267, 277).)  

Once the trial court has found the recantation to be believable, it must then decide whether consideration of the recantation would render a different result on retrial reasonably probable. (People v. Minnick, supra, 214 Cal.App.3d at p. 1482, citing People v. Cole, supra, 94 Cal.App.3d at pp. 859-860.)

Here, the court expressed doubt as to the credibility of Blakes new testimony, stating, Im not sure its believable now, and commented that there were reasons to believe Blakes memory was malleable. Indeed, Blakes affidavit in support of the motion states that he felt responsible for the jurys verdict. According to defense investigator Craig Williams, Blake said he spoke with John [the defendant] after John had been convicted by the jury and he started to feel real bad and feels somewhat responsible for John being convicted. Williamss report also noted that Blake was coming forward at this time so he has a clear conscious [sic].

Initially, the trial court presumed Blakes new testimony to be credible for purposes of determining whether the new evidence would render a better result on retrial. The court concluded that, even if Blakes new story were to be believed, a different result was not probable, primarily because, in the various statements of [defendant] made following the incident, theres no mention or any reason to suspect that he believed or thought he was acting under any sort of self-defense theory. The record supports that conclusion.

Shortly after stabbing Valdez, defendant talked to Jana Tomasi, who testified he told her he had a fight with Valdez and was just defending himself. He also spoke with Mattie Lopstain, who testified she did not really remember how defendant said it happened, but guessed Robert [Valdez] tried to attack him with a knife and defendant said he took it away from him [Valdez]. Later that evening, however, defendant was interviewed in custody by detectives. During that interview, defendant admitted he had been out all night the previous night smoking methamphetamine; that Valdez was making smart ass comments and saying things that upset him very much; that he (defendant) went overboard and lost composure; that Valdez was making him upset and getting him [p]issed off; that he warned Valdez not to say the things he was saying; that Valdez scares the shit out of me; that Valdez played around but did not stand up and confront defendant and never told defendant he was going to harm him; that defendant thought he had to pick up the knife even though he did not know if Valdez was armed with anything; that Valdez was talking about dying and death and saying [t]hings about the death to defendant and smiling; that defendant intended to stab Valdez; that defendant came up on Valdezs left side without saying anything and stabbed him; that defendant wanted Valdez dead; that defendant snapped; that defendant told Tomasi not to tell anyone he was at her house; that if he could have done it over again, he would have made sure the knife went into Valdezs throat; and that he wished Valdez was dead.

Defendant argues that the only evidence contradicting defendants self-defense claim was Valdezs testimony, the credibility of which is placed into question by Blakes new testimony. We disagree. Defendants own statements in his interview with police contradict his self-defense claim. Not only did he not claim he was defending himself; he admitted that he never saw Valdez with a weapon in his hand; that Valdez never stood up and confronted him; and that Valdez never threatened to harm him. While defendant argues the reliability of his statements during the interview are suspect given the influence of drugs and lack of sleep, the jury had the opportunity to compare those statements to defendants trial testimony and determine for themselves what weight the evidence should be given. We do not second-guess the fact finder in that regard.

Defendant argues that Blakes new testimony, if believed, at the very least raises an issue of credibility because it contradicts the testimony of the victim, Valdez. However, the new evidence offered by Blake is problematic for several reasons.

First, Blakes affidavit in support of the motion for new trial does not specify when he heard Valdez say, Ill kill you nigga to defendant. The affidavit says, [O]n the date and time of the stabbing, I heard Robert Valdez, the victim, say to John Maestas, Ill kill ya nigga. Given that the affidavit does not appear to change Blakes testimony that he never actually witnessed the stabbing and only intervened after it occurred, it follows that he could only have heard the statement after the stabbing. Consequently, he cannot corroborate defendants claim of self-defense.

Second, Blakes original statement was for the most part consistent with Valdezs statements to police and with defendants detailed statements to police during the postarrest interview.

Third, Blake never told police Valdez threatened him, and never testified about it at trial. Defendant argues Blake never told anyone about the threat because he feared for his life. However, by Blakes own testimony, the three men continued to hang out together after the incident, a fact which greatly discredits Blakes claimed motive for keeping quiet about the alleged threat at trial.

Defendant also contends that a different result is likely on retrial because the trier of fact would have a much better measure of Robert Valdez truthfulness after watching his responses, on cross-examination, to the questions he would have to answer about threatening [defendants] life right after the fight and intimidating the only neutral witness with threats against his life. However, there was a significant amount of evidence presented at trial to corroborate the version of events as explained by defendant during his police interview and testified to by Valdez, Blake, and other witnesses. We also note that defendant had the opportunity, once he testified he had been threatened by Valdez, to recall Valdez for cross-examination regarding the alleged threat, but chose not do so.

The court concluded that the evidence at trial corroborated the prosecutions theory that defendant intentionally stabbed Valdez and claimed self-defense after the fact. Given his pretrial statements and the fact that he never called 911, never told anyone Valdez said, Ill kill you nigga, and denied to police that Valdez ever threatened him or brandished any sort of weapon, the record supports the conclusion that it was not reasonably probable that consideration of Blakes recantation would render a different result on retrial. The trial court did not abuse its discretion in denying defendants motion for new trial.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] Pursuant to restraining orders filed by defendants mother, both defendant and Valdez were prohibited from entering the Blackswain house.

^[2] A blunt is a cigar that has been hollowed out and filled with marijuana.

^[3] Valdez explained at trial that people who are coming down off of methamphetamine are often tired, worn out and [c]ranky, like you snap easily, like, you know, people can get on your nerves pretty fast.

^[4] Valdez testified at trial that he did not see a knife in defendants hand prior to the incident. He also denied that he, himself, had a knife either at the time of the incident or during the three days prior thereto.

^[5] Wright testified that Valdezs response to the question was, I dont know.

^[6] Defendant said that although he never saw a knife in Valdezs hand during the incident, he had seen Valdez playing with his knife at the motel the previous day and knew he kept it on his belt.

^[7]The trial court concluded the defense had been diligent in presenting all the evidence that it got at trial. Without discussing whether the evidence was newly discovered or whether it was merely cumulative to other evidence bearing on the same factual issue, the court then assumed that Blakes new testimony was believable for purposes of determining whether a different result was reasonably probable on retrial.