Filed 7/11/17 P. v. Gonzalez CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

GUSTAVO PATINO GONZALEZ,

Defendant and Appellant.

F071643

(Super. Ct. No. VCF242391)


OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Gustavo Patino Gonzalez of second-degree robbery and conspiracy to commit robbery. Appellant later pled no contest to a count of assault with a firearm on which the jury had previously deadlocked, and admitted allegations he had suffered a prior strike and a prior serious felony conviction. Appellant was sentenced to a total prison term of 15 years for his current convictions. On appeal, appellant contends the trial court erred in denying his motion for a new trial based on newly discovered evidence under Penal Code section 1181, subdivision 8. He further contends the court’s denial of his new trial motion resulted in a prejudicial denial of his federal and state constitutional rights to a fair trial and due process of law, requiring reversal of his jury convictions of second-degree robbery and conspiracy to commit robbery. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At appellant’s trial, the prosecution presented evidence that, on September 14, 2010, appellant agreed to drive three other men he met at a party that night to a property in Tulare County to purchase marijuana. During the drive, the three men revealed that they planned to steal marijuana plants from a marijuana garden belonging to Jacinto Gomez, who lived in a trailer next to the marijuana garden. In his testimony, Gomez described some men appearing at his trailer close to midnight and one of the men pointing a gun at him and eventually directing him to lie down at a location outside his trailer while they took plants from his marijuana garden. Gomez identified appellant in court as the man who had pointed the gun at him and directed him to move outside his trailer.
During the robbery, neighbors of Gomez intervened, and one neighbor fatally shot one of appellant’s three companions, Jamie Sanchez, in the head. After the neighbor shot Sanchez, appellant got in his car and began to drive away but soon abandoned his car, along with a .25-caliber pistol, in a nearby orange grove and fled on foot.
During police interviews in the days following the incident, after initially reporting his car stolen, appellant eventually admitted he had been the driver of the car involved in the robbery. He described how he met the others involved in the robbery at a party that night and agreed when they asked him for a ride to buy marijuana. Appellant said he was aware when he met them that they were Northern gang members and “they got guns, but it doesn’t scar[e] me.” Once they were in appellant’s car, they revealed to him they were planning to steal marijuana from Gomez. Appellant stated he went along with their plans “basically to be cool,” but claimed his participation was limited to driving and then waiting as instructed by his car while the other three went to steal the marijuana plants. Appellant also claimed that the firearm he discarded in the orange grove was handed to him shortly before he fled in his car by one of his companions who was returning with marijuana plants and being pursued by the neighbors.
At trial, appellant presented a duress defense. Appellant testified in his own behalf that, after he met the three men at the party, they started asking him to drive them somewhere to buy marijuana and he eventually agreed after they offered to pay him $20. Appellant indicated he was already afraid of them at that time because he knew they were Northern gang members, and he feared they would “kill [him] on the spot” if they discovered he was a former member and “dropout” of a Southern gang. When he realized from their conversation in the car that the passengers were planning to steal, not buy, marijuana from Gomez, appellant told them he was not going to rob the place and tried to turn around, but then they “pointed the guns” at him and he “no longer questioned them.” Appellant was afraid they would kill him if he did not agree to continue driving them, so he “stayed quiet” and “just did exactly as they told [him] to do.”
In his motion for a new trial filed on September 28, 2012, appellant identified two potential witnesses—Ray Garcia and Justin Self—he claimed could give new evidence on his behalf. According to the factual summary provided in support of the motion, appellant had a conversation with the defense investigator on July 26, 2012, at the Bob Wiley Detention Facility, and this conversation led the investigator to locate and interview the two potential witnesses. Garcia reportedly told the defense investigator that he knew the victim, Jacinto Gomez, and that he knew that Gomez was a drug dealer. Garcia also claimed Gomez told him that agents of the Tulare County District Attorney’s Office had coerced Gomez into identifying appellant as one of the robbers and had threatened to jail him if he did not lie on the witness stand. Self reportedly told the defense investigator he was housed in the same jail facility as George Mendoza, one of the three men appellant gave a ride to on the night of the robbery. According to Self’s statements to the investigator, Mendoza admitted to him that appellant “didn’t know about the robbery, and that the whole group had thought it was funny to get an ‘ex-Southerner’ … mixed up in their robbery.” (Fn. omitted.)
In his moving points and authorities, appellant acknowledged that section 1181, subdivision 8 required him to provide affidavits in support of the new trial motion, and explained that affidavits from Garcia and Self were “not available as of the time of the filing of this motion,” but would be “procured … and presented to the [trial] Court as soon as possible.” However, at the October 30, 2012 hearing on the motion, defense counsel advised the trial court “the only declaration … we were able to provide the court was that of Justin Self.” Defense counsel submitted on the moving papers without offering any additional evidence or argument in support of the motion.
After listening to the prosecutor’s argument opposing the motion, the trial court denied appellant’s motion for a new trial. In ruling, the court found the “so-called newly discovered evidence” did not provide a “basis in law to grant the motion for new trial.”
DISCUSSION
Section 1181, subdivision 8 provides that the trial court may grant a new trial motion “[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.” Applying this provision, our Supreme Court has held:
“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.)
The trial court may consider the credibility as well as the materiality of the proffered new evidence. (Id. at p. 329.) We review the court’s ruling for abuse of discretion. (Id. at p. 328.)
Preliminarily, respondent contends that appellant failed to meet his burden of demonstrating error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [it is the appellant’s burden of showing reversible error by an adequate record]; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [failure to provide an adequate record results in affirmance of the trial court’s determination].) Respondent’s contention has merit. The documents appellant presented at the hearing on his new trial motion, which apparently consisted of Self’s declaration and a report by the defense investigator summarizing Garcia’s statements to him, are not included in our record.
Appellant acknowledged this omission in his opening brief filed on November 17, 2015, and advised this court that he was contemporaneously filing a motion to augment the record on appeal to include the omitted documents. However, our court docket reflects that appellant’s motion was returned for nonconformance on November 18, 2015, and appellant appears to have made no further attempt to provide the documents he relied on in the trial court. Nor has appellant filed a reply brief addressing this issue or any of the other arguments respondent has made in support of upholding the trial court’s denial of his motion for a new trial.
Because appellant has failed to furnish us with a sufficient record to evaluate his claims on appeal, we could simply affirm the judgment without further analysis. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 [appellate court’s review limited to consideration of matters contained in appellate record].) However, assuming for argument’s sake that the documents appellant described in his opening brief were included in our record, we conclude the trial court acted well within its discretion in denying appellant’s motion for a new trial. The new trial motion was unsupported by affidavits of the witnesses who would testify to the newly discovered evidence and was thus procedurally deficient. In relevant part, section 1181, subdivision 8 provides:
“When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.” (Italics added.)
The alleged exculpatory statements of Gomez and Mendoza constitute the claimed newly discovered evidence entitling appellant to a new trial; however, appellant failed to produce an affidavit from either Gomez or Mendoza. Appellant simply presented a declaration from Self comprised of Mendoza’s out-of-court statements, which were clearly hearsay. (See Evid. Code, § 1200; see also People v. Merrill (1951) 104 Cal.App.2d 257, 268-269 [trial court may properly disregard hearsay affidavits in ruling upon motion for new trial]; People v. Radz (1931) 119 Cal.App. 435, 436–437 [hearsay statements in affidavit supporting motion for new trial based on newly discovered evidence must be disregarded].)
Notably, appellant did not seek to demonstrate Self’s declaration was admissible as evidence of Mendoza’s statements under any hearsay exception, such as the exception for declarations against interest requiring the declarant’s unavailability. (See Evid. Code, § 1230.) In fact, in appellant’s previous motion for a continuance of sentencing to investigate potential witnesses in support of a new trial motion, he claimed Mendoza was “willing” to testify on appellant’s behalf now that Mendoza’s own case was over. However, appellant failed to provide any explanation as to why he subsequently failed to produce a declaration from Mendoza in support of the new trial motion.
Similarly, the defense investigator’s report of Garcia’s account of statements Gomez allegedly made to Garcia—one of the documents on which appellant relied in support of his motion below but, as previously mentioned, is not part of the record on appeal—contained multiple layers of hearsay. Again, appellant did not seek to demonstrate any hearsay exception applied to the proffered hearsay statements of Garcia. Nor did he explain why he was unable to produce an affidavit for Gomez, the actual declarant of the statements he claimed constituted new evidence warranting a new trial.
Because of appellant’s failure to present affidavits from Gomez and Mendoza, the witnesses by whom the claimed new evidence was expected to be given, or to otherwise present competent evidence in support of his motion for a new trial, the trial court could properly deny the motion on this ground alone. (See § 1181, subd. 8; see also 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Judgment, § 103, p. 145 [“Obviously the evidence must be competent, relevant, and material; if it is not, it would be inadmissible and could not affect the outcome of a new trial.”].)
In addition to rejecting his claim on statutory grounds, we see no merit in appellant’s claim that the denial of his new trial motion violated his due process and fair trial rights under the state and federal constitutions. Appellant offers no meaningful analysis in support of this claim, but generally asserts that the new evidence established he was “wrongfully convicted of robbery and conspiracy to commit robbery” and, therefore, due process principles require reversal of his convictions and a new trial. Even assuming the proffered hearsay statements constitute competent, admissible evidence, they do not establish appellant’s wrongful conviction of the offenses. The relevance of the new evidence goes mainly to issues of witness credibility, as the evidence would arguably bolster appellant’s denial of direct involvement in the robbery and the defense theory that his limited involvement resulted from duress. There was conflicting substantial evidence on these issues at trial, including appellant’s own prior police statement contradicting several aspects of his trial testimony. Appellant has not demonstrated that inclusion of the new evidence, if admissible, would probably result in an outcome more favorable to him at trial, much less an acquittal. For all of these reasons, we conclude the trial court did not err in denying appellant’s motion for a new trial on either statutory or constitutional grounds.
DISPOSITION
The judgment is affirmed.



MEEHAN, J.
WE CONCUR:



HILL, P.J.



POOCHIGIAN, J.