Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08SF0277, Richard M. King, Judge. Reversed with directions.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J.T. Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Ever Mendoza appeals from a judgment after a jury convicted him of felony dissuading a witness, first degree burglary, threatening a witness with force, and street terrorism, and found true the burglary was a violent felony and the offenses were committed for the benefit of a criminal street gang. Mendoza’s sole contention on appeal is the trial court applied an incorrect standard when it ruled on his motion for new trial. We agree and reverse the judgment and order the trial court to conduct a new hearing on the new trial motion.
FACTS
Nadia Mendoza (Nadia) was in the habit of acquiring alcohol and drinking to the point of intoxication on a daily basis with her friend Esperanza Beltran. When Nadia became pregnant with Mendoza’s child, Mendoza asked Nadia to stop drinking alcohol and to stop hanging around with Beltran. Nadia continued drinking and refused to stop spending time with Beltran.
We refer to Nadia Mendoza by her first name for ease of reading and to avoid confusion, and not out of disrespect. (In re Marriage of James and Christine C. (2008) 158 Cal.App.4th 1261, 1264, fn. 1.)
Frustrated that Nadia continued to spend time with Beltran and continued to drink during her pregnancy, Mendoza confronted Beltran at her home sometime between March 2 and March 5, 2008. Beltran heard pounding at her door, and then observed Mendoza standing in her living room. Mendoza appeared angry and told Beltran to “stay away from Nadia.” Mendoza also called Beltran “a snitch and a rat” and told her that she had been “rolled out of the neighborhood.” Beltran understood “rolled out of the neighborhood” to mean she could not be seen around the neighborhood or she would be assaulted by gang members. Mendoza told Beltran if he had to come back, “it wasn’t going to be to just talk.” Beltran considered that statement to be a threat. At the time of this incident, Beltran was scheduled to testify in two gang cases.
Mendoza was subsequently charged with and convicted of felony dissuading a witness (Pen. Code, § 136.1, subds. (a), (b)(1)) (count 1), first degree burglary (§ 459, 460, subd. (a)) (count 2), threatening a witness with force (§ 140, subd. (a)) (count 3), and street terrorism (§ 186.22, subd. (a)) (count 4). The jury found true allegations the burglary was a violent felony because a non-accomplice was present in the residence (§ 667.5, subd. (c)(21)), and that counts 1, 2, and 3 were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Mendoza admitted he suffered one prior serious felony conviction (§ 667, subd. (a)(1)), and one state prison prior (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Mendoza filed a motion for new trial asserting there was insufficient evidence to support his conviction on any of the four counts. He argued the evidence supported a reasonable inference the incident at Beltran’s house was entirely a personal dispute. Mendoza argued because there were two reasonable inferences that could be drawn from the evidence, the jury disregarded the law when it failed to adopt the interpretation that was consistent with innocence.
In ruling on the motion, the trial court indicated Mendoza was suggesting in deciding a motion for new trial, a judge should sit as a 13th juror, and asking him to assess the facts and decide how he would vote. The court then quoted from People v. Robarge (1953) 41 Cal.2d. 628 (Robarge), as follows: “‘The statement by the trial judge that, quote, “the court sits as a 13th juror, ” unquote, has an unfortunate connotation. The phrase is misleading and it does not properly describe the function of the trial judge in passing on a motion for new trial. As we have seen, it is the province of the trial judge to see that the jury intelligently and justly performs its duty and in the exercise of proper legal discretion to determine whether there is sufficient credible evidence to sustain the verdict.’” (Id. at p. 634.)
The trial court agreed “that it may very well be that there were two reasonable interpretations, and if I were voting, I may find that the interpretation that [the defense] advocated was reasonable and the circumstance that the People advocated was reasonable.” The court further stated, “But what do I have before me, other than what was presented to the jury, what is it that I have before me that demonstrates that the jury’s conclusion that the People’s version of the events were [sic] reasonable and your version was unreasonable, what is it that - - that - - that there is a lack of evidence to come to that finding?” Mendoza sought to clarify his position indicating he believed both the prosecution’s and the defense’s versions of the evidence were reasonable.
After a review of various aspects of the evidence, there was further discussion concerning the trial judge’s role in ruling on a motion for new trial. Mendoza asserted section 1181, subsection (6), required the court to decide whether the verdicts or findings are contrary to the law or the evidence. He likened the role of a judge ruling on a new trial motion in a criminal matter to the role of a judge in a civil matter ruling on a judgment notwithstanding the verdict. The court responded, “Well, to me, this is very similar to, in death penalty cases, when the court, after the jury has returned a finding of death, does an independent assessment of the aggravating circumstances and mitigating circumstances, and the test is not whether the court would impose death, but whether the evidence as the jurors heard it would support that verdict. Is the verdict contra to the evidence that was presented?” The court indicated it did not believe that in ruling on a motion for new trial, the judge’s duty to independently assess the evidence meant the judge should decide how it would vote based on the evidence. Rather, the court opined its duty was to look at the evidence the jurors heard and then determine whether the verdict was contrary to the law and evidence. The prosecution asserted the court’s duty was “to decide whether there is sufficient credible evidence to support the verdict.” The court denied the motion for new trial and sentenced Mendoza to a total term of nine years in state prison.
Section 190.4, subdivision (e), provides in part that in every case “[i]n which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding.... In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in [s]ection 190.3, and shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.”
LEGAL PRINCIPLES
Mendoza and the Attorney General agree the proper legal standard is set forth in Porter v. Superior Court (2009) 47 Cal.4th 125 (Porter). Mendoza contends the trial court failed to apply the proper legal standard as detailed in Porter. The Attorney General disagrees and contends the record reflects the trial court properly considered the evidence and rejected the new trial motion. As we explain below more fully, we conclude the trial court failed to engage in an independent assessment of the evidence.
In Porter, supra, 47 Cal.4th 125 , our Supreme Court explained the standard for ruling on a motion for new trial under section 1181, subdivision (6), is different than the standard for ruling on a motion for judgment of acquittal under section 1118.1. “In ruling on a[] [section] 1118.1 motion for judgment of acquittal, the court evaluates the evidence in the light most favorable to the prosecution. If there is any substantial evidence, including all inferences reasonably drawn from the evidence, to support the elements of the offense, the court must deny the motion. [Citations.] In considering this legal question, ‘a court does not “‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] This test is the same as that used by appellate courts in deciding whether evidence is legally sufficient to sustain a verdict. [Citation.]” (Id. at p. 132.)
The Porter court then contrasted the standard in ruling on a motion for new trial. “The court extends no evidentiary deference in ruling on a section 1181[, subdivision] (6)[, ] motion for new trial. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’ [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury’s verdict is ‘contrary to [the]... evidence.’ [Citations.] In doing so, the judge acts as a 13th juror who is a ‘holdout’ for acquittal. Thus, the grant of a section 1181[, subdivision] (6)[, ] motion is the equivalent of a mistrial caused by a hung jury. [Citation.]” (Porter, supra, 47 Cal.4th at p. 133, first italics added.)
“‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.’ [Citations.] “‘A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.”’ [Citations.]” (People v. Thompson (2010) 49 Cal.4th 79, 140.) An abuse of discretion arises if the trial court based its decision on an incorrect legal standard. (People v. Knoller (2007) 41 Cal.4th 139, 156.)
ANALYSIS
In determining its duty in ruling on the new trial motion, the trial court relied on Robarge, supra, 41 Cal.2d. 628. Although the trial court accurately quoted a portion of Robarge, the court confused its duty by considering only a portion of the opinion out of context. In Robarge, the court concluded the trial court misconceived its duty in ruling on a motion for new trial, vacated the order denying the motion for new trial, and directed the trial court to again hear and determine the new trial motion. (Id. at p. 635.) The Robarge court found the trial court erroneously believed it was bound by the jury’s decision on the evidence. (Id. at pp. 633-634.) The Robarge court held that in ruling on a motion for new trial, a trial judge has very broad discretion and is not bound by the jury’s resolution of conflicts in the evidence. The court explained the trial judge should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. (Id. at p. 633.) The court noted this does not mean “the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]” (Ibid.) Subsequent appellate courts have held similarly, including Porter, supra, 47 Cal.4th 125. (See People v. Lewis (2001) 26 Cal.4th 334, 364; People v. Davis (1995) 10 Cal.4th 463, 523; People v. Dickens (2005) 130 Cal.App.4th 1245, 1251-1252.)
Circumstantial evidence played a critical role in this case. Defense counsel argued circumstantial evidence supported the reasonable inference the incident at Beltran’s house was not gang related and was simply the result of Mendoza’s love for Nadia. The prosecutor disputed this interpretation and argued the incident was gang related and a result of Mendoza’s belief Beltran was “a snitch and a rat.” The trial court instructed the jury that if it found the defense counsel’s interpretation of the evidence to be reasonable it must accept that version. The jury’s verdict indicates it necessarily found the defense’s interpretation unreasonable.
The trial judge stated if “he were voting” he may have interpreted the circumstantial evidence differently than the jury did. But then indicated there was nothing before him to support a finding there was a lack of evidence to support the jury’s finding the defense’s interpretation was unreasonable. Clearly, the trial court believed it was bound by the jury’s interpretation of the circumstantial evidence if it was supported by the evidence.
In likening its role to the role a trial court plays in considering modification of a jury’s death verdict, the trial judge stated the question was not whether the court would have reached the same verdict but whether there was evidence to support the jury’s verdict. The trial judge was mistaken. Although the trial court should not disregard the verdict, it must independently assess the credibility of witnesses, independently determine the proper weight to be given to the evidence, and independently draw inferences from the evidence as required. Only after engaging in this independent review does the trial court determine whether or not, in the trial court’s opinion, there is sufficient credible evidence to support the verdict. The substantial evidence test is not the proper standard.
The record reflects the trial court erroneously applied the deferential substantial evidence standard and reviewed the evidence in the light most favorable to the judgment. In so doing, the court failed to engage in an independent assessment.
DISPOSITION
The judgment and the order denying the motion for a new trial are vacated. The matter is remanded to the trial court with directions to conduct a new hearing on Mendoza’s motion for a new trial.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.
“In ruling on defendant’s application for modification of the verdict, the trial court must reweigh the evidence; consider the aggravating and mitigating circumstances; and determine whether, in its independent judgment, the weight of the evidence supports the jury’s verdict. [Citation.]” (People v. Brady (2010) 50 Cal.4th 547, 588.)