Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06211
SCOTLAND, P.J.
A jury found defendant Por Vue guilty of inflicting corporal injury on his spouse. The trial court denied defendant’s motion for new trial, suspended imposition of sentence, and placed him on formal probation on the condition, among others, that he serve 277 days in jail, with credit for time served.
On appeal, defendant contends the trial court abused its discretion in denying his motion for new trial on the ground there was newly discovered evidence that would have resulted in a more favorable verdict. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Just before 1:00 p.m. on June 5, 2004, Sheriff’s Deputy Phillip Bronson responded to a report of domestic violence at the home of defendant and his wife, Lee Yang. When Bronson arrived, Yang was outside. She was crying and appeared frightened. Her left eye “had a slight kind of green [in it] as if it was start[ing] to . . . bruise”; she had a small one inch by one inch bump on her forehead “which was also discolor[ed]”; and her left shoulder was swollen, red, and noticeably larger than her right shoulder.
Bronson interviewed defendant later that afternoon. Bronson stated he “was investigating a[n] . . . assault that took place the night prior and . . . asked [defendant] what had happened that night with his wife.” Defendant said Yang returned home late on June 4, 2004, the two argued about dinner, he slapped her in the face, she screamed, and he punched her in the left shoulder, telling her to “shut up.” Yang then sat on the couch, and defendant kicked her in the back.
The interview was in English. Bronson testified he had no trouble conversing with defendant. Although defendant’s sister testified defendant did not speak English, Deputy Terry Van Sickle testified he was able to converse with defendant without the aid of an interpreter during the booking process at the Yuba County jail in October 2005.
On July 31, 2006, the day before the trial was scheduled to commence, Yang delivered a letter to the prosecutor, stating she had not been truthful with the deputies on June 5, 2004, and requesting that the charges against defendant be dropped. She also said she would “not attend any court,” although she had received a subpoena ordering her to appear on August 1, 2006. Defendant sought to admit the letter at trial, but the People objected that it was hearsay. Defense counsel conceded he had no legal authority to support its admission, and the trial court sustained the People’s objection. Yang did not testify at trial.
Yang failed to appear on August 1, 2006, the first day of trial, and a bench warrant issued.
The jury verdict was rendered on August 3, 2006. Six months later, in February 2007, defendant filed a motion for new trial based in part on what he claimed was newly discovered evidence. It consisted of a declaration by defense counsel, incorporating by reference a letter he had written to the prosecutor in October 2006, stating that on August 9, 2006, Yang told defense counsel that the red mark on Yang’s forehead depicted in one of the photographs shown to the jury was self-inflicted during a ritual designed to draw evil spirits out of her head. Counsel argued that “[s]uch evidence, if it were presented at retrial, either would show that the victim had a propensity for fabrication of events, or preclude the red spot for consideration by the jury as evidence of battery upon the victim by . . . defendant.” The People responded that “new evidence purporting to impeach . . . Yang is not grounds for granting a new trial. . . . Yang did not testify and none of her statements were introduced. . . . Yang’s credibility is not at issue.” The trial court denied the motion.
The letter stated in pertinent part: “On 8/09/06 . . . I interviewed [Yang] in front of the office of the Yuba County Public Defender. Also present were . . . Yang’s two oldest daughters and . . . defendant’s sisters, Sia Vue, and Nou Vue, who acted as translator. [¶] I showed Yang a headshot photograph purportedly taken by Officer Bronson . . . . I pointed to a reddened area on her forehead and asked her what caused it. She smiled and replied, ‘Txhuav taub hau.’ Nou Vue wrote the words ‘Txhuav Taub Hau’ on a piece of paper. I showed Yang the paper and asked her if those were the correct words. She replied, ‘Yes.’ I asked Yang to explain the ritual. Burning paper is placed under a small glass that is put against the skin to draw evil spirits out of her head. She informed me that she had the device in her purse and offered to show it to me. [¶] I asked her if [defendant] had struck her on the forehead. She replied, ‘No.’”
DISCUSSION
Defendant contends the trial court abused its discretion in denying the motion for new trial. In his view, “a different verdict more favorable to [him] would have resulted had the jury been aware of the evidence of . . . Yang’s self-inflicted injury.”
As we shall explain, defendant’s motion was procedurally defective, and the evidence upon which the motion was based was not newly discovered.
Penal Code section 1181, subdivision 8 provides a new trial may be granted “[w]hen new evidence is discovered material to the defendant, and which [the defendant] could not, with reasonable diligence, have discovered and produced at the trial.” In ruling on such a motion, 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.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
“A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial 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.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.) There was no abuse of discretion in this case for reasons that follow.
“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 . . . .” (Pen. Code, § 1181, subd. 8.) Defendant simply presented a declaration from his counsel. Because he failed to present an affidavit from Yang--the witness by whom the newly discovered evidence was expected to be given--his motion was procedurally deficient. (See generally People v. Miramontes (1957) 153 Cal.App.2d 402, 403-404 [upholding the denial of new trial motion that was based on hearsay].)
In any event, the record shows that defendant and his counsel were aware before trial that Yang recanted. In her letter, which was provided to defense counsel prior to trial and which defendant sought to admit at trial, she said that she had been untruthful when speaking to the deputies on June 5, 2004, and as a result, that defendant was charged in this case. The clear implication of Yang’s statement is defendant did not cause her injuries. The purported new evidence simply elaborates on that statement by explaining the injury to her forehead was self-inflicted. Because defendant and his counsel already had information that Yang indicated defendant did not cause her injuries, the evidence upon which defendant relied in support of his motion for new trial was cumulative and not new.
Thus, the trial court did not err in denying the motion for a new trial.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.