P. v. Rosas
Filed 6/18/13 P. v. Rosas CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ABEL ROSAS,
Defendant and Appellant.
B238092
(Los Angeles
County
Super. Ct.
No. BA355199)
APPEAL from
a judgment of the Superior Court
of Los Angeles County,
Michael E. Pastor, Judge. Affirmed.
Pensanti
& Associates and Louisa B. Pensanti for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
_____________
>
Abel Rosas
attempted willful, deliberate and premeditated murder with true findings on the
special allegations the crimes had been committed for the benefit of a criminal
street gang and a principal had used and discharged a firearm in committing the
offenses proximately causing great bodily injury. On appeal Rosas argues his constitutional
right to the effective assistance of counsel was violated by his lawyer’s
failure to move to suppress as involuntary his admissions to police officers
following his arrest, to properly investigate the case and to present at trial
evidence favorable to the defense. He also
contends the trial court erred in denying a motion for new trial based on newly
discovered evidence and an error in the verdict forms requires a retrial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.
The Shooting and the Victims’
Statements
Brothers, German Llamas and Armando
Llamas, were shot on April 8, 2009
at approximately 5:15 p.m. while
walking together on Towne Avenue
in South Los Angeles.
Los Angeles Police Officer Michael Stewart questioned German
the hospital. German told Stewart a red
BMW with hydraulic lifts drove by with five male Hispanics inside. German recognized Rosas, who was wearing a
blue Los Angeles Dodgers cap, and one of the other passengers in the back seat. German later identified the third person in
the back seat as Ramon Garcia.
German said the BMW stopped in
front of him, and someone in the back seat asked, “Where are you from?†German responded he was not a gang
member. The individuals in the BMW then
displayed Florencia 13 gang hand signs and drove off. Several minutes later the BMW came back from
the other direction; a second car, a brown or gray Monte Carlo driven by Rosas,
followed it. Both cars turned the corner
at 84th Street, moving away from German and Armando. Garcia, now on foot, approached German and
Armando on 84th Street and asked, “Well, who’s in that car,†apparently
referring to the BMW. Garcia continued
walking and then started shooting at German and Armando before getting into the
BMW, which drove away. While at the
hospital German identified Rosas as the driver of the Monte Carlo and Garcia as
the shooter from several photographic lineups shown to him by Los Angeles
Police Officer Kevin Currie, a member of the 77th Division’s gang enforcement
detail. German also identified Rosas at
the preliminary hearing.
For his part, Armando reported to
Los Angeles Police Officer Yolanda Mansillas, another gang detail officer who
rode with him in the ambulance to the hospital, that four individuals were
initially in the BMW and only two when it returned, followed by the Monte
Carlo. Armando recognized Rosas as a
passenger in the BMW when it first drove by and as the driver of the Monte
Carlo. Following the second pass by the
BMW, a male Hispanic wearing a blue-and-white collared shirt who had previously
been in the BMW approached Armando and German on foot. He asked Armando, “Hey, who were those guys?â€
and then shot Armando and ran away. The
evening of the incident, after returning home from the hospital, Armando
identified Rosas and Garcia from the multiple photographic lineups shown to him
by Officer Currie.
At trial German testified he could
not identify Rosas or the person who shot him and did not remember telling the
police what had happened. He
acknowledged he was afraid of the Florencia 13 gang. Similarly, Armando denied seeing a car and
testified he had not seen Rosas prior to trial.
He could not remember what he had told police officers the day of the
shooting. Both men admitted they did not
want to be witnesses.
German suffered multiple gunshot
wounds to his thighs and back. He was
hospitalized for six days. Armando
received a single gunshot wound to his thigh.
2.
Rosas’s Arrest and His Police
Interviews
Responding to a call about the
shooting, Los Angeles Police Officer Arnold Porter and his partner saw a red
BMW with hydraulic lifts parked on 69th Street, slightly more than a mile from
the scene of the shooting at 84th Street and Towne Avenue. A brownish Monte Carlo was also parked close
by. After additional units arrived, the
officers arrested Rosas and four other men who were standing near the cars;
three of the men, including Rosas, were wearing clothes consistent with the
description of the suspects. Rosas was
taken to the 77th Street police station.
A little past midnight on April 9,
2009, Rosas was interviewed by Los Angeles Police Detective Leanne Hoffman and
her partner Detective Cleary. Rosas was
advised of his right to remain silent, to the presence of an attorney and, if
indigent, to appointed counsel. (Miranda
v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Rosas denied any involvement in the shooting
and said he had been at the address on 69th Street where the red BMW was found
because he was helping a friend paint his fence. He explained he had interrupted the task and
left to retrieve some tools, which is why German and Armando had seen him
around the time of the shooting. The
detectives told Rosas the two victims and a third witness had indicated Rosas
was involved in the incident. Hoffman
said, “So like I have said, like I told you in the car, when I talked to you
when we walked up the stairs and when I talked to you right now, I am giving
you the opportunity to be honest because your involvement is less than the
other person’s involvement, but it’s your opportunity to not be a part of
it.†Throughout this initial interview
Rosas repeatedly denied his involvement in the shooting,
insist they knew he was not telling the truth and told him it would be better
if he did.
associated in any way with the Florencia 13 criminal street gang.
Rosas was booked after the
conclusion of the initial interview.
According to Detective Hoffman, Officer Currie told her Rosas had asked
during that process whether it would help him if he “came clean.†That comment led Hoffman to believe it would
be helpful to interview Rosas again. She
decided to wait a day to do so, explaining, “It seemed like he thought it was a
joke. So I felt that maybe if he spent
time in the jail, there would be an understanding that this—we are not playing
games here. It is not a joke.â€
Detective Hoffman and her partner
that day, Officer Williams, interviewed Rosas a second time on April 10, 2009
at 4:50 p.m. Hoffman asked Rosas if he
wanted to discuss what had happened the day of the shooting, and Rosas said
“Okay.†Hoffman did not advise Rosas of
his Miranda rights again prior to
continuing with the interview.
During the second interview Rosas
said he was at his house collecting tools to continue painting a fence at the
home of his friend Everardo Santana (Everardo) on 69th Street. Jose Luis Santana (Jose), known to Rosas as
Nadar, drove up in a red BMW. A man
Rosas believed to be Garcia was in the front seat. Rosas and Garcia lived on the same block, and
Rosas also knew him from school. Three
other men Rosas did not know, but who appeared to him to be gang members, were
in the backseat of the car. Jose invited
Rosas to “go mobbing†or tagging with them—writing graffiti on walls—and asked
Rosas to follow in his Monte Carlo and to be on the lookout for police. As Rosas drove by 84th Street and Towne
Avenue in his Monte Carlo, he said hello to German and Armando. The men in the red BMW and German and Armando,
however, yelled at each other; and Rosas left because he feared there was going
to be a fight. Back at Everardo’s house
at 69th Street, Rosas saw the three gang members get out of the red BMW, enter
a white van and drive off.
As the interview continued, Rosas’s
story changed significantly. First, he
acknowledged, rather than tagging, the men in the BMW “had a beef with some
Bloods,†specifically the Eastside Swans and German, in particular, because
German had shot at them before and beat up “one of their little homies.†They intended to fight the Bloods: “They said they were gonna get down, they
said if they could shoot them, they were going to shoot them.†However, Rosas insisted he did not actually
see a gun. Rosas also admitted he had
been inside the red BMW when it first drove passed German and Armando and gang
signs were displayed and shouts exchanged.
They then drove to Everardo’s house, where he was asked to follow in his
Monte Carlo as backup and lookout.
3.
The Charges
Rosas and Garcia were jointly
charged with two counts of attempted willful, deliberate and premeditated
murder. (Pen. Code, §§ 664, 187, subd.
(a).) As to both counts it was alleged
the crimes had been committed for the benefit of a criminal street gang (Pen.
Code, § 186.22, subd. (b)) and a principal had used and discharged a firearm
causing great bodily injury in committing the offenses. (Pen. Code, § 12022.53,
subds. (b)-(e).) Rosas pleaded not
guilty and denied the special allegations.
Garcia’s case was severed from Rosas’s prior to trial.
3.
The Evidence at Trial
The People presented evidence of
German’s and Armando’s statements to police officers in the aftermath of the
shooting and their identification of Rosas as a passenger in the BMW and the
driver of the Monte Carlo, as well as Rosas’s post-arrest statements, which
were admitted into evidence without objection.
Gerardo Prado, testifying as a gang expert, described the area where the
shooting occurred—Towne Avenue near 84th Street in South Los Angeles—as within
the territory of the Florencia 13 street gang, a predominantly Hispanic
gang. According to Prado, Florencia 13
gang members commonly wore clothing with the color blue. The gang’s enemies included the Swans, a
primarily African-American Blood gang.
After describing aspects of gang
culture—the importance of “respectâ€; the process of being “jumped inâ€â€”and
identifying the primary criminal activities of Florencia 13, Detective
Prado opined, based on a hypothetical derived from the evidence in this case,
the shootings were committed for the benefit of the gang to earn respect from
the community and rival gangs. He also
opined the crimes were committed in association with the gang because more than
one person affiliated with the gang had participated in them.
4.
The Defense Evidence
Testifying on his own behalf, Rosas
stated his friend Everardo had asked him to help paint a fence at his house on
April 8, 2009. He drove to the house on
69th Street around 4:00 p.m. and worked on the fence with Everardo’s father
while seven or eight other men were socializing on the property. Around 4:30 p.m. Rosas left in his Monte
Carlo to go to a friend’s house to pick up additional painting materials. He drove past the intersection of 84th Street
and Towne Avenue on his way back to Everardo’s house but did not see German or
Armando.
According to Rosas, Everardo’s
cousin Jose lived at the house with Everardo.
Rosas claimed he barely knew Jose, who owned a red BMW. When Rosas returned to the house to continue
the painting job, he did not see the red BMW.
Rosas worked on the fence for another 45 minutes and then went inside to
eat. Jose entered the house and said “It
all went bad†between Jose and German and then left when someone called for
him. Rosas went outside and again worked
on the fence. At this point police
officers arrived, handcuffed five men including Rosas and took Rosas to the
police station.
Rosas described his interviews with
the police, acknowledged he had lied to them at various points because he “felt
something was going on bad†and insisted the version of events he testified to
at trial was true. Rosas acknowledged he
knew German and Armando and said he did not have any problem with them. He also admitted he had friends who were
members of Florencia 13.
The defense presented several
character witnesses who testified Rosas was not violent and did not associate
with gang members. Professor Mark
Costanza from the University of California Santa Cruz testified regarding the
circumstances that may lead to a false confession.
5.
The Verdict
The jury found Rosas guilty on both
counts of attempted willful, deliberate and premeditated murder and found true
the criminal street gang and firearm-use enhancement allegations. After reading the verdicts, the court asked
the jurors, collectively and individually, whether those were their
verdicts. The jurors collectively and
then individually stated they were.
Several days after the jury was
discharged, the court reported that the clerk had found signed not guilty
verdict forms among the materials that had been collected from the jury room,
specifically in a binder containing the master set of jury instructions. The court, although “concerned and slightly
embarrassed†by this discovery, stated it believed there was a true verdict
because the jurors had orally attested to their verdicts.
clearly misunderstood what they were supposed to have done [with the not guilty
verdict forms]. If I had caught it, I
would have sent the jurors back, and I would have said there is a contradiction
here.â€
6.
Sentencing
Rosas moved for a new trial on the grounds of
ineffective assistance of trial counsel, newly discovered (alibi) evidence and
defective jury verdicts. The court
denied the motion.
After denying the new trial motion
the court sentenced Rosas on count 1 to an indeterminate life term with the
possibility of parole for attempted murder plus 25 years to life for the
firearm-use enhancement and on count 2 to a consecutive indeterminate life term
with the possibility of parole for attempted murder plus 25 years for the
firearm-use enhancement.
name="_ftnref8" title="">[8] The court explained it was ordering
consecutive sentences on the two counts “because they are completely separate
acts of violence against separate alleged victims in this case.â€
DISCUSSION
1.
Rosas’s Trial Counsel Did Not
Provide Ineffective Assistance
a. Legal
standard
“‘To establish ineffective assistance of counsel under either the
federal or state guarantee, a defendant must show that counsel’s representation
fell below an objective standard of reasonableness under prevailing
professional norms, and that counsel’s deficient performance was prejudicial,
i.e., that a reasonable probability exists that, but for counsel’s failings,
the result would have been more favorable to the defendant.’†(In re Roberts (2003) 29 Cal.4th 726, 744-745; see
466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 217.) “‘The burden of sustaining a charge of
inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable
reality and not a speculative matter.’†(People
v. Karis (1988) 46 Cal.3d 612, 656.)
There is a presumption the challenged action “‘might be considered sound
trial strategy’†under the circumstances.
(Strickland, at p. 689; accord, People v. Dennis (1998) 17
Cal.4th 468, 541.)
b. Failure
to move to suppress Rosas’s statements to Detective Hoffman
Rosas’s appointed trial counsel did
not move to suppress Rosas’s post-arrest statements to Detective Hoffman and
her partners. After substituting new
retained counsel,
title="">[9] Rosas asserted in a new trial motion, as he
does again on appeal, those statements were the involuntary product of coercion
(use of threats and promises of leniency) and the failure to move to suppress
them was ineffective assistance of counsel.
Because Rosas’s statements were
admissible and any objection would have been unsuccessful, the failure to move
to suppress them does not constitute ineffective assistance: “The Sixth Amendment does not require counsel
to raise futile motions.†(
843, fn. 24; accord, People v. Memro (1995)
11 Cal.4th 786, 834 [“[t]he Sixth Amendment does not require counsel ‘“to
waste the court’s time with futile or frivolous motionsâ€â€™â€]; see
161 Cal.App.4th 823, 836, [failure to make a futile or unmeritorious
motion is not ineffective assistance].)
A defendant’s confession or admission is involuntary,
and thus subject to exclusion at trial, only if it is the product of coercion
or, more generally, “overreaching.†(
992, fn. 13; People v. Williams (1997) 16 Cal.4th 635, 659 (Williams).) “[I]nvoluntariness requires coercive activity
on the part of the state or its agents; and such activity must be, as it were,
the ‘proximate cause’ of the statement in question, and not merely a cause in
fact.†(People v. Mickey (1991) 54 Cal.3d 612, 648; accord,
both the United States and California Supreme Courts require courts to apply a
“totality of the circumstances†test. (Withrow
v. Williams (1993) 507 U.S. 680, 693-694 [113 S.Ct. 1745, 1754, 123 L.Ed.2d
407]; People v. Massie (1998) 19 Cal.4th 550, 576; Williams, at p. 660.) “Relevant are ‘the crucial element of police
coercion [citation]; the length of the interrogation [citation]; its location
[citation]; its continuity’ as well as ‘the defendant’s maturity [citation];
education [citation]; physical condition [citation]; and mental health.’†(Williams,
at p. 660.)
Evidence a defendant’s admissions were preceded by
express or implied promises of leniency is significant in evaluating whether
the statements were voluntary. (People
v. Neal (2003) 31 Cal.4th 63, 84 [“[p]romises and threats
traditionally have been recognized as corrosive of voluntarinessâ€]; People
v. Boyette (2002) 29 Cal.4th 381, 412 [“[a] promise to an accused that
he will enjoy leniency should he confess obviously implicates the voluntariness
of any resulting confessionâ€].) The
presence of such a threat or promise, however, is not necessarily
determinative: “[U]nder current law, no
single factor is dispositive in determining voluntariness . . . .†(Williams, supra, 16 Cal.4th
at p. 661; see People v. Massie,
supra, 19 Cal.4th at p. 576 [“[i]n determining whether a confession was
voluntary, ‘[t]he question is whether defendant’s choice to confess was not
“essentially free†because his will was overborne’â€].) Moreover, “‘“‘[w]hen the benefit pointed out
by the police . . . is merely that which flows naturally from a truthful and
honest course of conduct,’ the subsequent statement will not be considered
involuntarily made.â€â€™â€ (
at p. 993.)
Rosas points to a number of comments during his first
police interview he contends were an implied threat and promises of
leniency. According to Rosas, Detective
Hoffman attempted to pressure him when she said he would have to spend at least
eight months in jail before he could present his claim of innocence to a
jury—although he fails to identify any inaccuracy in that assessment. And the officers’ entreaty to Rosas “save
himselfâ€; the observation, “[i]f you come clean, we can help youâ€; and the
statement, “you won’t be looking at life; you’ll be looking at much less timeâ€
if he would tell the truth, in Rosas’s view, all amounted to improper promises
of leniency. By the time of this first
interview, however, Rosas had been identified as an active participant in the
incident by both victims. His denials of
any involvement were patently false, and Hoffman and her partner appropriately
advised Rosas it would be better for him to tell the truth. (See, e.g., People v. Tully, supra, 54 Cal.4th at p. 993;
375, 398 [permissible for police to advise suspect of benefits that flow naturally
from truthful conduct].)
In any event, Rosas continued to
deny his involvement in, and any responsibility for, the shooting throughout
the first interview. Ultimately, he
simply told Detective Hoffman he did not want to talk further. Hoffman asked, “Are you, do you want to talk
about anything or no? If not, then you
are going to be brought to be booked.â€
Rosas responded, “Yeah, I’m done man.â€
Plainly nothing said by the officers proximately caused Rosas to make
any incriminating statements through the termination of the first interview
session.
With respect to the second
interview, which took place more than 36 hours after the conclusion of the
initial interview, Rosas contends only that “[t]he subsequent confession was
not sufficiently attenuated from the improper coercion used by the officers in
the first interview to break the causal chain.â€
As discussed, there was no improper coercion in the initial interview,
and no incriminating statements were produced during the first session. Accordingly, the inculpatory statements made
during the second session with Detective Hoffman were necessarily
admissible. (See People v. Jones (1998) 17 Cal.4th 279, 299 [“Defendant also
contends that because his initial interrogations produced involuntary incriminating
statements, his subsequent inculpatory statements were illegally obtained. [Citation.]
But the initial interrogations did not produce any involuntary
incriminating statements.â€].)
In addition, it was Rosas, not the
detectives, who initiated the second interview; Detective Hoffman confirmed
before proceeding that Rosas now wanted to speak about what had happened the
day of the shooting. Even if improper
coercive tactics had been employed in the first interview session, this
intervening independent act by Rosas would be a significant factor indicating
incriminating statements made during the second interview were not obtained by
exploitation of any illegality that may have occurred during the first. (See People
v. McWhorter (2009) 47 Cal.4th 318, 360.)
Moreover, Rosas continued to be evasive during the initial phase of the
second interview, providing additional support for the conclusion his will was
not overborne by any alleged coercion during the first interview. Finally, in evaluating whether a motion to
suppress would have been pointless, we can reasonably infer his trial counsel
was aware Rosas had been advised of and waived his rights under
and also knew Rosas had been questioned by the police in the past—both
circumstances pointing toward the voluntariness of any statements he had made
and the futility of any motion to suppress.
(See Williams, supra,
16 Cal.4th at p. 660.)
In sum, under all the circumstances
trial counsel’s decision not to move to suppress Rosas’s statements to
Detective Hoffman was both reasonable and fully consistent with professional
norms.
c. Failure
to investigate and subpoena potential witnesses
Two reports from an investigator
working with the deputy public defender who initially represented Rosas stated
Everardo Santana and Jose Santana had corroborated Rosas’s story he was
painting the fence at Everardo’s house on 69th Street throughout the afternoon
of the shooting and identified other Santana family members (Bonificio Santana,
Marcilino Santana and Mario Santana) who were present at the time and could
also corroborate Rosas’s alibi.
Marcilino and Mario were then in Mexico, but Bonificio remained in Los
Angeles. In addition, the investigator
reported Jose said the police had told him what to write in the statement he
had given and now claimed Rosas was never in Jose’s red BMW.
During trial Rosas’s defense
counsel proffered testimony from an investigator that she had unsuccessfully
attempted to subpoena members of the Santana family who lived at the 69th
Street house. Counsel represented the
investigator would testify, “they won’t speak to her and won’t accept anything
because they don’t even come out. They
don’t even answer phone calls.†The
court excluded the testimony of the investigator as irrelevant and unduly
prejudicial, indicating it would call for “bizarre speculation†as to the
absent individuals’ potential testimony.
According to a posttrial
declaration filed by defense counsel, several days after the jury verdicts
Everardo came to his office, and told him he had moved from the 69th Street
house without leaving a forwarding address but said, had he been subpoenaed, he
would have come to court. Marcilino and
Mario were still in Mexico; Bonificio was then living in Mexico, as well.
Rosas contends his trial counsel
was deficient in failing to conduct further pretrial investigation of the
Santana family members as potential alibi witnesses. Rosas also asserts, besides corroborating his
alibi, Jose could have confirmed the use of improper police interrogation
practices by the detectives in this case and thereby reinforced his claim his
confession was false. Thus, he argues,
it was also ineffective assistance for counsel to have failed to subpoena Jose
for trial. (See, e.g.,
at p. 215 [adequate investigation and preparation part of criminal defense
counsel’s responsibilities]; People v.
Jones (2010) 186 Cal.App.4th 216, 239 [failure to make adequate pretrial
investigation may be grounds for finding ineffective assistance of counsel];
1207, 1212 [“standard of reasonable competence requires defense counsel to
diligently investigate the caseâ€].)
Neither Rosas’s brief in this court
nor the appellate record suggests any reason his counsel should have believed
additional pretrial efforts were required with respect to Everardo or Jose, let
alone indicates counsel reasonably suspected either man would subsequently
refuse to cooperate with the defense or be difficult to contact or subpoena to
appear at trial.
title="">[10] Both had cooperated with the defense
investigator and appeared willing to provide evidence helpful to Rosas. On the other hand, it appears Marcilino and
Mario were in Mexico well before the trial began in May 2011, and nothing in
the record supports an inference the initial effort to locate and interview
Bonificio would have been more successful if additional attempts had been
made. Under these circumstances trial
counsel’s performance did not fall below professional norms. (See In
re Cox (2003) 30 Cal.4th 974, 1016 [defendant “‘must demonstrate that
counsel knew or should have known that further investigation was necessary’â€];
105 Cal.App.4th 1078, 1093 [defendant failed to state prima facie claim of
ineffective assistance since he “failed to show the witness was available to be
interviewed by his attorneyâ€]; see also In
re Thomas (2006) 37 Cal.4th 1249, 1264, fn. 4 [not every decision to
curtail investigation in an area based on the improbability of finding evidence
is ineffective assistance; generally, “it is for counsel to decide what leads
are or are not worth exploringâ€].)
Finally, it is not reasonably
probable any additional efforts defense counsel might have made in this regard
would have altered the outcome of the trial.
(Strickland v. Washington, supra, 466 U.S. at p. 694.) As discussed, the evidence of Rosas’s guilt
was overwhelming. Both victims’
identified Rosas as a participant in the crimes, and Rosas himself admitted
involvement in the shootings during his second interview with Detective
Hoffman. Although Rosas returned to his
just-painting-the-fence alibi at trial, and testimony from one or more of the
Santana family members might have been consistent with that innocent version of
events, it is not reasonably probable that such testimony would have led to a
more favorable outcome. (See
1021 [“Demby’s unreasonable failure to conduct a more thorough and reasonably
comprehensive pretrial investigation . . . and his subsequent failure to
present reasonably available evidence . . . would not require relief on the
ground of ineffective assistance unless his deficient performance was
prejudicialâ€].)
2.
Penal Code section 1181, subdivision 8, authorizes the
court to grant a 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.†“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.â€â€™â€ (People v. Delgado
(1993) 5 Cal.4th 312, 328; accord, People
v. Howard (2010) 51 Cal.4th 15, 43.)
The trial court’s decision to
a motion for a new trial based upon
newly discovered evidence is reviewed for an abuse of discretion: “‘“The determination of a motion for a
discovered evidence] rests so completely within the court’s discretion that its
action will not be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears.â€â€™â€ (People
v. Delgado, supra,
5 Cal.3d at p. 328.) “‘“[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.â€â€™â€ (Ibid.)
Applying this highly deferential
standard of review, there is plainly no merit to Rosas’s contention the trial
court erred in denying his motion for a new trial based on newly discovered
evidence—Everardo’s posttrial declaration stating he could testify Rosas was
working on the fence at his house on the afternoon of April 8, 2009 from
4:00 p.m. until 5:30 p.m. First,
the evidence was not newly discovered. The public defender’s investigator
interviewed Everardo before trial and prepared a report indicating he
corroborated Rosas’s fence-painting alibi.
It was Everardo’s apparent unavailability as a witness, not any lack of
knowledge of the substance of his potential testimony, that prevented defense
counsel from presenting this evidence at trial.
Moreover, as the Supreme Court has
directed, “‘[t]o grant a new trial on the basis of newly discovered evidence,
the evidence must make a different result probable on retrial.’†(People
v. Verdugo (2010) 50 Cal.4th 263, 308.)
Here, as discussed, the evidence of Rosas’s guilt was overwhelming; and,
far from probable, it is highly unlikely Everardo’s testimony would have made a
difference in the face of Rosas’s highly incriminating admissions and the
victims’ identifications. The trial
court properly weighed the evidence at trial and concluded the additional evidence
had minimal value. There was no abuse of
discretion.
3.
Any Procedural Irregularity in the
Verdict Forms Was Harmless
Pursuant to Penal Code section
1164, subdivision (a), a “verdict is complete†and the jury properly discharged
from the case when the court receives the verdict, reads it, and inquires of
the jurors whether it is their verdict.
they all agreed upon their verdict; and, if the foreperson answers
affirmatively, “they must, on being required, declare the same.†(Pen. Code, § 1149.) As Rosas candidly concedes before this court,
the jurors’ oral declaration is the true verdict regardless of the verdict
forms. (People v. Traugott (2010) 184 Cal.App.4th 492, 500 [“it is ‘the
oral declaration of the jurors, not the submission of the written verdict forms
[that] constitutes the return of the
verdict,’†quoting People v. Green
(1995) 31 Cal.App.4th 1001, 1009]; People
v. Mestas (1967) 253 Cal.App.2d 780, 786.)
“‘“No particular form of verdict is required, so long as it clearly
indicates the intention of the jury to find the defendant guilty of the offense
with which he is charged.â€â€™â€ (
1269, 1273; accord, Bigelow v. Superior
Court (1989) 208 Cal.App.3d 1127, 1134-1135 [same].)
As discussed, the court read the
jury’s verdicts finding Rosas guilty on both counts of attempted willful,
deliberate and premeditated murder and finding true the criminal street gang
and firearm-use enhancement allegations.
After reading the verdicts, the court asked the jurors, collectively and
individually, whether those were their verdicts; and the jurors collectively
and then individually stated they were.
Nothing more was required.
Nonetheless, relying on the posttrial discovery of signed not guilty
verdict forms, which had been left in the jury room in the instructions binder,
and citing People v. Soto (1985) 166
Cal.App.3d 428, 438, Rosas contends the court should have granted his motion
for a new trial because there was not “an unequivocal verdict on the question
of his guilt.â€
title="">[12]
People
v. Soto, supra, 166 Cal.App.3d 428 is inapposite and, if anything,
illuminates the lack of merit in Rosas’s challenge to the verdicts here. In Soto
the jury returned a single form finding the defendant “not guilty of count I,
murder, but also fixing the murder to be of the second degree.†(Id.
at p. 432.) In another verdict form the
jury found true the special allegation the defendant had been armed with a
firearm in the commission of the murder.
Additional verdict forms found the defendant guilty of robbery and found
true the special allegation the murder had been committed in the course of the
robbery. (Ibid.) After the verdicts
were read, the court asked the jurors if those were their verdicts; and they
unanimously affirmed they were. (
affirmed the ‘not guilty of murder’ verdict as readâ€].) There was no individual polling of the
jurors. A colloquy then took place
between the court and counsel to the effect the verdict was for second degree
murder, and the jury was discharged. (
forms to reflect a finding of guilt for second degree murder was impermissible: “[B]ecause the verdict from expressly found
[the defendant] ‘not guilty’ of murder and did not expressly find him ‘guilty’
of second degree murder, we may not construe the verdict to find [him] guilty
of second degree murder. To do this would
be an impermissible alteration of a verdict contrary to the defendant’s right
to an unequivocal verdict on the question of his guilt.†(Id.
at p. 438.)
Unlike the contradictory verdict
form returned in Soto, which was then
orally affirmed by the jurors, here the only forms taken from the jury room,
given to the court and read by it unequivocally found Rosas guilty of both
counts of attempted willful, deliberate and premeditated murder. (See People
v. Camacho, supra, 171 Cal.App.4th at p. 1275 [Soto inapplicable because no inconsistency in verdict].) Moreover, the jurors, collectively and
individually, orally affirmed those consistent findings of guilt. The mistaken signing of the not guilty forms,
which were then left in the jury room, was a technical error that did not in
any way compromise Rosas’s right to an unequivocal verdict on the question of
his guilt.
DISPOSITION
The judgment is affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
spell Rosas’s first name as he did when he testified at trial.
use the brothers’ first names for convenience and clarity. (See People
v. Jones (1996) 13 Cal.4th 535, 538, fn. 2.)
