Opinion
A111188
9-17-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD WALKER, Defendant and Appellant.
NOT TO BE PUBLISHED
Based on his driving a stolen car and then running from an officer who arrested him for it, a jury found defendant James Edward Walker guilty of unlawfully driving or taking a car (count 1—Veh. Code, § 10851, subd. (a)), receiving a stolen car (count 2—Pen. Code, § 496d), possessing a shaved key with intent to break into a car (count 3, amended at trial—Pen. Code, § 466.7), resisting an officer (count 4—Pen. Code, § 148, subd. (a)(1)) and driving on a suspended or revoked license (count 5—Veh. Code, § 14601.1).
Undisputed jury instructions defined the elements of those offenses as follows:
Count 1—driving a vehicle not ones own, without consent of the owner, and with the specific intent to permanently or temporarily deprive the owner of title or possession.
Count 2—Withholding or concealing property from its owner, or aiding in the same, knowing that the property was stolen or obtained by theft.
Count 3—Possessing a motor vehicle key, intending to use it to commit an unlawful act, and knowing the key was made without consent of the vehicles owner or lawful possessor.
Count 4—Willfully resisting a peace officer one knows or reasonably should know is discharging or attempting to discharge his duties.
Count 5—Driving a vehicle when ones driving privilege has been suspended or revoked for negligent operation, and knowing of that suspension or revocation.
In bifurcated proceedings on special allegations, the jury then found true a prior strike allegation, and the court sustained other allegations for which defendant waived a jury trial.
Defendant sought a new trial based on newly discovered evidence (Pen. Code, § 1181, subd. 8), alternatively asserting a Brady violation of the duty of disclosure (Brady v. Maryland (1963) 373 U.S. 83 (Brady)), as a nonstatutory ground for new trial (People v. Drake (1992) 6 Cal.App.4th 92, 97-99). Relief was denied after a hearing and testimony. The court then struck priors in the interest of justice (Pen. Code, § 1385) and imposed a total sentence of four years.
Defendants appeal repeats points made in his new trial motion, the denial of which is reviewable as part of his appeal from the final judgment. (Pen. Code, § 1237, subd. (a); People v. Mazurette (2001) 24 Cal.4th 789, 792.) We reject his challenges and affirm the judgment.
BACKGROUND
Trial
The owner. Bernardo Quiroz owned a brown, four-door 1991 Honda Civic, license plate number 2XFG106, that he left parked in the driveway of his home on June 15, 2004. It was missing when he went to pick up his newspaper the next morning, and he reported it stolen to Richmond police. Quiroz kept his car registration in the glove box, still had both sets of keys to the car, did not know defendant, and had never given him permission to drive the car.
Officer Pamplona. Officer Robert Pamplona of the San Pablo Police Department (SPPD) was on patrol just after midnight on June 23, 2004, when he spotted what turned out to be the stolen Honda. While stopped at a red light on Rumrill Boulevard in San Pablo, waiting to make a turn onto Sanford Avenue, he saw the Honda headed in the opposite direction, also stopped at the light, and ran the license plate on his computer. The car came back as stolen, and when the light changed, Pamplona followed as it turned left onto Sanford and then right onto Fillmore Street. He wore a dark blue police uniform, with a bright badge on his chest, and drove a marked patrol car, white with lights on top and "San Pablo Police" on the side.
Because he was alone in the patrol car, Pamplona did not activate his lights or siren, or otherwise try to stop the Honda. He radioed for assistance and decided to effect a stop only after help arrived. He never lost sight of the Honda and was behind it when it parked immediately on Fillmore, a residential area less than a quarter mile from where he first saw the car. Its driver (defendant) got out, glanced back at him and, with his hands up, walked away into the street, leaving the drivers door open. Pamplona got out and, while not announcing himself as an officer, drew his gun and ordered defendant to get down on the ground. Pamplona was about 20 feet from defendant. Defendant told him "no" and kept going.
Pamplona had been just a car length behind the Honda when defendant got out; he saw no one other than a driver in the car. He confirmed the lack of others, for his safety, by looking into the Honda as he walked right by it, and he saw no one else running from the car. He commanded defendant again to get on the ground, but defendant kept going, broke into a jog and then ran. Pamplona gave chase, 20 to 30 feet behind defendant, and closed on that distance.
As defendant crossed the street, he had turned to look at the officer and had thrown something from his right hand. It was pretty dark, with light only from a nearby parking structure and the patrol cars headlights. Pamplona saw something leave defendants right hand but could not see what it was. Defendant ignored another command to get down and "said no and said he wasnt driving." He stopped running after 40 or 45 yards, and Pamplona handcuffed him, apparently as several backup officers began to arrive.
Pamplona returned to where defendant had thrown something and recovered a single Honda key on a ring. In the officers training and experience, this was a "shaved" key, meaning one shaved or worn down so that it can be wiggled around and manipulated to work in the ignition or door lock of most cars. Pamplona tried the key on the Honda, and it both opened the door and started the car (going about halfway into the ignition). Pamplona found no other keys in the car, no damage to its doors, door locks, ignition or steering column, and no signs of the car having been hot wired. Hot wiring is not needed with a shaved key. A search of the car revealed no registration papers, but Quiroz was the registered owner; and his Department of Motor Vehicles (DMV) registration was in evidence at trial.
Defendant seemed upset when arrested. Pamplona did not conduct any sobriety tests, but defendant at one point said "he had had something to drink." As Pamplona led him back to the patrol car, defendant "refused to get into the back seat." Then, once inside the patrol car and as Pamplona was leaving, with other officers still at the scene, defendant hit his head a few times against the window and tried to "kick out" the windows. Later at the jail, with Pamplona and another officer present, defendant hit his head against a wall.
The prosecutor said in rebuttal argument, without objection, that defendant had told the officer he had "a bottle of beer" or "one beer." This seems to have been said at the preliminary hearing, but at trial, the officer only said, when asked if defendant said he had been drinking, "I think he did say he had had something to drink."
Defendant never produced a valid drivers license. Pamplona was able to identify him at the scene through an identification card in his wallet. Pamplona did check for a license, evidently later in his investigation, but it was not valid.
The defense rested without presenting evidence.
Jury arguments. Prosecutor Jason Peck argued guilt of all charges, arguing knowledge of the shaved key and stolen Honda from evidence that defendant had pulled off onto a side street and hastily abandoned the car as soon as the patrol car was behind him, fled from the officer, threw the key, and then lied about not being the driver. Noting the shaved key, the one-week gap from the time the car went missing, and lack of any signs of forced entry, Peck offered, "Now, some of us may think that the defendant, Mr. Walker, possibly could have taken the car from Bernardos driveway." He stressed, however, that what defendant was "charged with is driving a car that he knows is stolen, receiving stolen property, having a shaved key, running from the police, and having a suspended license."
Defense counsel Betty Barker conceded defendants guilt of driving on a suspended license and resisting arrest. She noted that DMV records showed his license had been suspended for driving under the influence (DUI), that he was on probation for DUI, and that he had "a number of convictions for . . . driving with a suspended license." She then built on that concession, and defendants drinking and agitated state, to argue that he had no idea the key was shaved or the car was stolen. Like the prosecutor, she stressed that defendant was not charged with actually stealing the car, but only with knowing that it was stolen when he drove it.
Barker called it "speculative" that defendant "knowingly" drove a stolen car or possessed stolen property, or possessed a shaved key with "knowledge" or a "purpose" of using it to drive a stolen car. She urged that he was drunk, noting his statement that he had been drinking and his behavior in hitting his head on the patrol car window and then on a wall at the station. She called his claim of not driving "utterly ridiculous" given that he had just exited the drivers side door with an officer right behind him, and, adverting to the lack of anyone else in the car, asked rhetorically, "Who was his imaginary friend?" She urged that defendant "knew full well that he should not be driving a car," drunk and unlicensed, and that he "clearly wasnt all there" in claiming he was not driving. She posited no idea of how he came to have the Honda, which she conceded was stolen, but urged, "He did not have the state of mind of any intent to know that he was driving a stolen car." The shaved key in evidence, she urged, was little different from any key to an old car. She suggested that defendant threw it, not to conceal having it, but as "a diversion" and to help him run away.
The prosecutor, in rebuttal, called the "diversionary tactic" idea ridiculous and stressed lack of evidence that defendant was drunk, or too drunk to know what he was doing (see also fn. 2, ante).
New Trial Motion
Defendants written motion for new trial claimed newly discovered evidence from his niece Tamika Walker and her mother Tammy Walker, each of whom assertedly saw the incident and could expose inconsistencies in Officer Pamplonas trial account. The motion also offered the discovery of a car-thief nephew, Tommy Walker (then in custody in Oregon), who could vouch that defendant did not know the car was stolen and through whom they had also located James Pizzagrani (doing time at San Quentin), who had stolen the Honda and later let defendant borrow it. Finally, Sergeant Tom Hughes of the SPPD had been at the scene and assertedly could testify that defendant was drunk and had denied stealing the car. Failure to disclose the sergeants information, it was claimed, was a Brady violation.
The trouble with the motion as filed is that, while it incorporated "declarations" from Tamika and Tammy Walker, defendant, defense counsel and defense investigator Linda Sanderson, not one of their statements contained an oath or affirmation. A new trial motion based on newly discovered evidence must be supported by "the affidavits of the witnesses by whom such evidence is expected to be given" (Pen. Code, § 1181, subd. 8), and these unsworn statements did not qualify as affidavits (People v. Brown (1976) 61 Cal.App.3d 476, 479). The court noted this before ruling on the motion and properly indicated it was therefore basing its ruling on "the actual testimony of witnesses."
Several witnesses testified live on the motion. This occurred over a course of three hearing dates, as trouble arose in getting some to appear or to respond to subpoenas.
Sergeant Hughess recollections were very general. He had written no report, was not part of the investigation, and had been called to the arrest scene later, as a supervisor and as support to help calm a group of six or seven onlookers and defendant himself. He was there 10 minutes and spoke with an already handcuffed defendant for only one or two minutes, successfully urging him to calm down so that further restraints would not have to be used to transport him. He recalled defendant as intoxicated and having a strong odor of alcohol, but not "falling down drunk," upset and angry, "yelling at everybody" about "not being involved in any crime," and "irrational," by which Hughes meant "cursing and yelling and screaming." He did not recall the specifics of defendants denials, only that he denied involvement in anything and was "ranting and raving." Hughes did not discuss with him the grounds for the arrest. He was intent on calming defendant down and assured him that "whatever he needed discuss" or say to Pamplona would be dealt with at the station. Hughes spoke another minute or two with defendant at the station. He did not recall defendant saying how much he had had to drink, why he was afraid of the police, or whether he was on probation for a DUI.
Hughes also calmed agitated onlookers by speaking with them. His impression was that some were defendants relatives, particularly two women who were about 20 and 40 years old. He did not know them or what relation they were, recall the names Tamika or Tammy Walker, or hear either woman say she was a witness in any way to the car incident. Some relative, or perhaps defendant, brought up the name Tommy Walker, either there or at the station, but Hughes could not recall the context. The name stood out for him a bit because he had had a Tommy Walker "on a shooting years earlier," but he did not remember why the name came up this time. He did not know or take the names of any of the onlookers.
Defense investigator Sanderson testified to her efforts, before and after the mid-November 2004 trial, to locate defendants sister and niece, Tammy and Tamika Walker, Tommy Walker, and James Pizzagrani, someone initially identified to her only as a white guy named Jimmy who hung out in El Sobrante or San Pablo and dealt drugs. Sanderson tried on November 16, 2004, the day before trial, to find Tammy or Tamika at an address counsel gave her that day of 1260 Sanford, apartment number 3, hoping through the women to find Tommy and any information Tommy had about the stolen Honda. Her effort failed when she went to that address, tried what she thought was apartment 3 (none being numbered), found it vacant and was told by a workman on the grounds that the people who lived there had moved. She also learned that a phone number she had for the women had been disconnected. Data base searches for Tommy Walker failed, the name being "too common," and Sanderson assumed (but could not specifically recall) she checked with DMV for the womens address. Months after the verdicts, a further contact from defense counsel told Sanderson the women must still be at the Sanford address. When Sanderson tried again she found them, discovering that she had earlier gone to the wrong apartment. She interviewed them and, through contacts they gave her, found Tommy Walker to be in custody in Oregon. She never spoke with him but did eventually speak with James Pizzagrani, whom she found to be in custody in Martinez.
Tammy Walker testified that she was near an open window of her second story apartment at Fillmore and Sanford when she heard police shouting, "Get down," and her brother protesting: "I didnt do anything"; "I have to go to work"; "This is not my car, I didnt steal it." She looked out and saw defendant about 27 feet outside the window. She went outside "a few minutes after they put the handcuffs on him," and he told her to call his job. She also testified, inconsistently, that when she went outside, she saw the cuffs being put on defendant and said that, from her window, she saw the car coming onto her street and a man named Montorio Rolling jump out of it and run "[r]ight when the car turned the corner," her brother still sitting inside. Further clouding the matter, she specified later that the car "was already stopped when I looked out the window," that her brother was "[b]eside the car with the handcuffs on" when she first looked out, and that her attention had been first drawn to the window by a neighbor, Monique, who was outside walking and alerted her that her brother was out there. Whatever the case, the car was only 27 feet from her window, yet Tammy could not recall what kind it was, its color, or whether it was a two- or four-door. She never heard her brother tell the police that he was not the driver.
The niece, Tamika, gave an internally more coherent account, but undercut her mothers in many respects. They were both home that night, and Tamika did not recall the neighbor, Monique, having alerted either of them. Rather, Tamika heard, and then saw, defendant from the window, and then alerted her mother by calling out, "Mom, they have Uncle James outside." Her mother went downstairs, but by then, the officer had defendant in handcuffs. Tamika first saw defendant being ordered to the ground and him saying, "I didnt do anything," and later, that he did not know why he was being arrested. She did not recall hearing him say he was not driving. By the time she first saw him, he was standing just beside the car (a Hyundai, she thought); she never saw him inside it. Tamika also related, consistent with Officer Pamplonas trial account, seeing defendant ordered to the ground, then run (toward a trailer park) pursued by a single officer. A second officer arrived within 10 minutes, and by the time Tamika went outside, officers were putting defendant into a police car. Like her mother, Tamika said that she saw Montorio Rolling exit the stolen car, but Tamika said this happened when the one officer ran off to chase defendant. She saw Montorio get out of the passenger side and run toward Rumrill Road. She believed her uncle was drunk. He had no problem walking, but she could tell from his speech and eyes that he was intoxicated; she understood that he had been drinking with "Jimmy and Tom." She could not hear defendant speaking to the officers during the foot pursuit but heard him after he was led back. An officer calmed him by saying he would go to jail (or detox) for only a few days.
Tamika recalled speaking with an officer about Tommy Walker and the officer saying he knew Tommy from car thefts and "numerous of other things" he had done. They did not discuss whether Tommy Walker was involved in this case, and Tamika did not hear the officer talk about Tommy with defendant. Tommy Walker never testified or submitted an affidavit.
James Pizzagrani, the last witness, was in custody for an unrelated case and, despite being advised of his right to remain silent, testified that he stole the Honda. His testimony left room to differ whether this was the same car defendant drove, but the court assumed for purposes of the new trial motion that it was the same car.
Pizzagrani testified that he was a friend of defendants nephew, Tommy Walker. Pizzagrani was heavily using drugs in June 2004. He could not specify the date but recalled stealing a brown four-door 1991 Honda Civic from near "Cheese Park" in El Sobrante (stipulated to be Lamoine Park, near the victims home), using a shaved key he had made. He did it alone and never stole cars with Tommy Walker. He usually stole to support a methamphetamine habit but, this time, stole because he was stuck late at night without transportation. He used the car that night and, the next morning, drove it to McBryde Avenue, where he parked and left it. Tommy gave him a ride back, and they hung out together. He left a second shaved key in the ignition. The key in evidence, he said, looked like the one he left in the car but was amateurishly made and not the better one he had used to enter the car. He said he used a second key to keep in the ignition so that, if stopped by police, the car would have one in the ignition and not look stolen. He did not think his fingerprints would be discernible from the key; it was "too small," with "too many grooves." Although Tommy had followed him to McBryde to drop off the Honda, Pizzagrani never mentioned to him that he had stolen it or left a shaved key in it. Pizzagrani never saw the Honda again. In an unrelated case that was now resolved, he later outran officers who caught him driving a stolen Toyota; he was apprehended early in the morning of June 17, 2004.
The court heard argument and denied the motion for new trial, including the Brady component. The courts extensive comments show that it doubted some testimony, found lack of due diligence to contact the relatives before trial, and found that defendant would have already known some of the information before trial. Focused in the end on Sergeant Hughess observations that defendant was intoxicated, the court called the evidence useful and corroborative but not supporting a reasonable probability of a different result had it been brought out at trial.
DISCUSSION
I. Newly Discovered Evidence
A ruling on a motion for new trial based on claimed newly discovered evidence (Pen. Code, § 1181, subd. 8) rests so completely within the courts discretion that it will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Delgado (1993) 5 Cal.4th 312, 328.) The trial court ponders whether: (1) the evidence, and not merely its materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) it would render a different result probable on a retrial; (4) the party could not with reasonable diligence have discovered and produced the evidence at trial; and (5) these facts are shown by the best evidence of which the case admits. (Ibid.)
A. Scope of the ruling
A persistent notion in defendants briefing is that the court relied solely on factor (3) and thus "implicitly agreed" that the evidence was newly discovered, not cumulative, and could not have been discovered earlier. We disagree. The court began the discussion by reciting at length its initial thoughts, which included doubt of every factor. It then heard argument, never once saying it was persuaded to change its initial views. Finally, having focused on evidence of defendants intoxication, the court said it "just ultimately" did not find that the evidence supported a reasonable possibility of a different result. The phrase "just ultimately," of course, does not mean this was the sole reason, and the court was referring to the last subject discussed, the intoxication testimony. Furthermore, the court had just pointed out to defense counsel an absence of proof as to "how Sergeant Hughes even came into the picture," meaning "when this came up or was discovered," and this shows that the court was troubled by lack of due diligence or knowledge before trial. Defense counsel referred the court to a reply "declaration" in which she had stated that this information was learned posttrial, but the court correctly observed, as it had before, that none of the "declarations" could be considered because none were sworn. In context then, and contrary to defendants claim, the courts overall ruling did not rely solely on factor (3).
"Let me tell you what I think about all this, and then those who disagree can argue or try and talk me out of it. I dont think Mr. [Pizzagranis] testimony is helpful to the new trial motion because, assuming hes accurate and its the same car, all it tells us that he was the first in line to steal the car. He just got to it before Mr. Walker did, and in fact provided the opportunity for Mr. Walker to take it if you accept that [he] left a perfectly usable shaved key in the ignition and walked away from it.
"So Im gonna assume thats all accurate. And so I dont think that exculpates your client. It just sets up the scenario, the scene and the opportunity for the subsequent stealing. And you know, there can be serial thefts of the same property. Its not like once its stolen, it cant be stolen again.
"So lets look at the balance of the case. Weve got Officer Hughes comes in and does remember that your client was intoxicated at the time of his arrest and that some of his relatives were on scene. But Hughes didnt write a [report], however he knew about the intoxication. And its information which is helpful.
"We have Linda Sanderson talked about trying to find Tammy and Tamika. She went to the address on Sanford, the four-plex, noted that none of the units had markings on the doors. She assumed that the vacant apartment was Number 3, the one she was looking for, didnt check with the other three units.
"It turned out these two women were living there. They were at the exact address. They were just in a different apartment.
"So I question whether thats due diligence. And Ill get back to that in a moment. "Tammy testified that your client . . . yelled out, `I didnt know the car was stolen. Thats self-serving hearsay. Thats not gonna come in through the witness even had she testified. And she did say she saw [Montorio Rolling] jump out of the car. No reason to know why that would be helpful. But thats certainly information that Mr. Walker here would have known about anyway.
"Tamika also said that she saw [Rolling] jump out of the car. Again I dont know how that helps, but its something that this defendant would have known about on his own. "So what were really left with is the issue I think of intoxication and whether that was suppressed by the [P]eople and whether that information if presented to the jury would have made a different result.
"If you look at the elements for a successful Brady claim, theres really three of them. One is that the evidence has to be favorable. And Im gonna assume that evidence of your clients intoxication would have been favorable. Number two, it . . . has to be suppressed by . . . the State, either willfully or inadvertently.
"And then there has to be prejudice. And in our context, that means showing . . . the exact language is must show that the information would lead to a, quote, reasonable probability of a different result, unquote.
"Now, evidence is not suppressed unless the defense was not aware of it and could not have with due diligence discovered it. And thats where I come back to Ms. Sanderson not going to any of the other units other than the one unit she assumed was the correct unit although it was not marked.
"And I think she said she went just a week before the trial. Im not positive. You can correct me. I think she went once, didnt check the other units. And if she had, she would have found that Tamika and Tammy were there.
"And I dont know if through the use of reasonable diligence that the information from [Sergeant] Hughes would have been learned by the defense. Thats something more likely that will have to be presented through the prosecution. But Hughes didnt write a report, but lets assume he should have memorialized what he saw, just as a good officer.
"Im not sure that showing that James Walker was intoxicated would have brought about a different result. The bottom line is he ran away from a recently stolen car, had the wherewithal to throw the shaved key away.
"He wasnt too intoxicated to recognize the opportunity to steal the car or recognize the key in the ignition presented the means to steal the car.
"He wasnt too intoxicated to drive it away.
"He wasnt too intoxicated to realize it was time to run from the police when the jig was up. And of course, most harmful, and Ive mentioned this several times, he wasnt too intoxicated to realize he had to get rid of that shaved key.
"So for all those reasons, I dont—your clients intoxication was something that could have reasonably been learned by the defense had due diligence been used to find these two women. Your client certainly could have started that off by saying, hey, I was drunk. He should have known that.
"[Hughes] adds a little bit more to it. But Im not sure that even had he testified at trial, for all the reasons I just stated, that there would have been a reasonable probability of a different result. So Im inclined to deny the Brady violation and deny the motion for a new trial."
In her reply document, counsel had said, "I do state that the observations from Sergeant Hughes were not disclosed to me in Officer Pamplonas police report or in any other form prior to the conviction of my client . . . ." Reminded by the court that it could not consider "any of the declarations `cause theyre not declarations," counsel offered, "So I would be glad to take the stand and testify to that, that that is when—that I learned of Officer Hughes after the trial." The court responded, "All right," but leaving it unclear whether the court accepted the offer in lieu of testimony.
B. Due diligence
We examine first, and find supported, the courts evident conclusion that the defense did not exercise due diligence to locate relatives Tammy and Tamika Walker before trial. Investigator Sanderson testified that she went to the indicated fourplex address (apartment no. 3 at 1260 Sanford) just once, on November 16, 2004, which we note was just the day before the trial began. She found none of the apartments numbered but tried at one that she "believed to be number three . . . ." She offered no explanation why, if they were unmarked, she believed this was the right one. She found it to be vacant, and "a man who was outside working on the building told me that the people had moved from that apartment." She evidently tried none of the other units, and the workmans advice was that people had moved "from that apartment," with nothing apparently said about any other unit. In these circumstances, lack of due diligence is clear. Sanderson did learn at some point that a phone number she had for the women had been disconnected and perhaps failed to find them in a DMV data base search, but the court could reasonably assume that Sanderson could have found them living at the fourplex, with or without a phone number or data based confirmation, as she did after trial. Tammy Walker confirmed in her motion testimony, six months after trial, that she and Tamika had lived at the apartment for a year and a half.
The testimony also fails to disclose why the defense waited until the day before trial even to look for the women. Defendant tries to downplay any lack of diligence by saying the investigator sought out the women for information on the nephew, Tommy, or the drug dealer, "Jimmy," who turned out to be Pizzagrani. He argues that Sanderson was not yet aware that the women were witnesses or that they saw defendant acting drunk that night. We imply in support of the ruling, however, a finding that defendant knew all along that the women were eyewitnesses. Defendants "declaration" on the motion said, "I did not realize that my sister and niece had witnessed the incident," but whatever the credibility of that statement, it was properly disregarded by the court as unsworn. Plus, the court had sworn contrary testimony from Tammy, who said defendant spoke to her that night: "I just seen [the officer] putting him in the cuffs and he kept asking me to call his job because he already knew he was in trouble" (italics added). Discovery of the women, in turn, would have disclosed that they saw defendant drunk, and that there were multiple officers and civilians present at the arrest scene. Tamikas description of "an older kind of stocky officer" who calmed defendant by speaking with him was, evidently, Sergeant Hughes, and we imply that the court found on the motion that the defense could have discovered him with due diligence. Defendant himself, obviously, would also have known of Hughess presence.
Defendant raises no specific argument about Montorio Rolling, the claimed second occupant of the Honda, being newly discovered. Obviously, defendant would have known of his presence, and the testimony reveals absolutely no defense efforts to locate him. Even if the defense had been unable to locate him personally, it should have been able to secure Tammy and Tamikas testimony about him.
Also not at issue is the discovery of Tommy Walker. Testimony revealed that data base searches had failed to find him and that he was ultimately found to be in custody in Oregon. What is missing, however, is any showing that he would give evidence in this case, live or by declaration. Investigator Sanderson testified that she never spoke with him. Tamika testified that she spoke about Tommy with an officer who said he knew him from car thefts and such, but Tamika also said they never discussed whether Tommy was involved in this case and that she never heard the officer talk about him with defendant. Pizzagrani testified about Tommy but never drew the link that defense papers had anticipated—that Tommy or Pizzagrani had lent defendant the Honda without telling him it was stolen or that the key was shaved. Pizzagrani said he never stole cars with Tommy and stole the Honda himself. The next morning, he drove it to McBryde Avenue and left it there with the shaved key in the ignition. Tommy followed him there and gave him a ride back, but Pizzagrani said that he never mentioned to Tommy having stolen the car or having left a shaved key inside, and never saw the car again. Thus the defense offered no competent proof that Tommy ever drove the Honda or lent it to defendant.
C. Pizzagrani
Defendant accordingly focuses on the discovery of Pizzagranis account of stealing the Honda and leaving it parked with a shaved key inside. We acknowledge the Peoples argument that timing problems in Pizzagranis account raised doubt whether he stole the same Honda, at least when he said he did. The court, however, expressly assumed for purposes of the motion that it was the same car. We also acknowledge some support for an implied finding that the defense could have located Pizzagrani before trial with due diligence. Sanderson testified, for example, that neither Tammy nor Tamika knew Pizzagrani, or where Tommy was, but "eventually give me information that led to somebody else whom give me information that led to Tommy" (sic). One might couple that with an inference, from Pizzagranis testimony of a friendship with Tommy, that Tommy would have known where Pizzagrani was. Only unsworn statements by counsel appear to support the defense version that Pizzagrani was discovered by happenstance, when he was placed in a jail cell with defendant in Martinez. Nevertheless, reliance on Pizzagranis testimony fails for other reasons.
The court could reasonably conclude that Pizzagranis testimony would not render a different result probable on retrial. As already noted, nothing in it directly showed that defendant was loaned the car without knowing its, or the keys, contraband character. Rather, it showed that defendant did not initially steal the car from its owner and, at best, allowed one to surmise that he drove it a week later without knowing its history. That surmise, however, was posited to the jury at trial and rejected, no doubt due to strong countervailing guilt-inference conduct that defendant abandoned the car right after being followed, and then fled from the car and threw the shaved key as he ignored an officers orders to halt. That same countervailing evidence would remain on retrial, and the ruling against a probable different result is supported.
Defendant assails "reasoning" by the court that there can be "serial thefts of the same property" and that Pizzagrani merely set up "the opportunity for the subsequent stealing." Defendant counters: (a) this testimony "directly contradicts the prosecutors argument that `some of us may think that the defendant . . . possibly could have taken the car from Bernardos driveway "; and (b) under a second-theft scenario, the convictions on counts 1 and 2 would have been prohibited double convictions under People v. Garza (2005) 35 Cal.4th 866, 880-881 (Garza), which holds that one cannot be convicted of both theft and receipt of the same vehicle unless evidence shows, as a six-day gap showed in Garza, a post-theft driving that is temporally divorced from the theft.
Defendants attack on the courts "reasoning," we initially observe, is a red herring, for "[i]t is axiomatic that we review the trial courts ruling and not its reasoning. [Citations.]" (People v. Mason (1991) 52 Cal.3d 909, 944.) However, construing point (a) as being that the court overlooked or undervalued the effect of the quoted statement on the jury, the answer is that defendant takes the statement out of context, ascribing to it a meaning it never had. He stresses the part that "some of us may think" defendant stole the car from the victims driveway but ignores the rest of the point, that what defendant was "charged with is driving a car that he knew is stolen . . . ." Thus, far from inviting jurors to infer that defendant stole the car himself, the prosecutor did just the opposite, clarifying that this was not something charged or needed to convict. Defendant also ignores instructions on the charge (count 1—Veh. Code, § 10851), which defined the pertinent element as being that "[a] person drove a vehicle belonging to another person." This was a version of CALJIC No. 14.36, which ordinarily reads that "[a] person took or drove a vehicle belonging to another person" (italics added), but in this case had the option "took" excised. The court, no doubt honoring the tenet that jurors generally understand and faithfully follow instructions (People v. Delgado, supra, 5 Cal.4th at p. 331), would have assumed that jurors followed this instruction and, therefore, as the prosecutor urged, did not decide whether defendant was the car thief.
Defendants point (b) is flawed by his assumption that the court decided that he committed a second theft. As we read the record, the court only observed, as one reason why an original theft of the Honda by Pizzagrani would not exculpate defendant, that a car can be serially stolen. Neither party disputes that principle, but defendants view that the court actually found that he committed a second theft is unsupported. Factually, there is no evidence that anyone other than Pizzagrani took or drove the Honda before defendant did. Legally, the court was presumably aware of its function on the new trial motion (see generally People v. Coddington (2000) 23 Cal.4th 529, 644; Evid. Code, § 664) and must have understood that its role on the motion was not to make its own guilt determinations but to consider what determinations the jury may have made, and the legal effect on that outcome of any newly discovered evidence. We have already observed that a finding of guilt by theft, original or otherwise, was contrary to the prosecutors jury argument and unauthorized by the pertinent instructions. The jury was directed only to a theory of unlawful driving, which suffices to violate Vehicle Code section 10851. (Garza, supra, 35 Cal.4th at p. 876; People v. Jaramillo (1976) 16 Cal.3d 752, 757-759.) It follows that there was no violation of the dual-conviction bar of Garza.
At sentencing, the court imposed a prison term for the count 1 unlawful driving but, under the bar against double punishment (Pen. Code, § 654), stayed a term for the count 2 receipt-of-stolen-property pending service of the term on count 1.
D. Hughes
Defendant ultimately relies on the testimony of his intoxication. We have already upheld the trial courts determination that Tammy and Tamika Walker could have been located before trial with reasonable diligence, and therefore disregard their testimony on the subject as not newly discovered. This does not penalize defendants exercise of his Fifth Amendment right not to testify at trial (People v. Hayes (1985) 172 Cal.App.3d 517, 524); rather, he could have exercised due diligence to present evidence of his intoxication through the eyewitness relatives testimony.
Defendant stresses the testimony by Sergeant Hughes, claiming it provided (1) a "credible alternative explanation" for his odd behavior in running, resisting arrest and denying driving (i.e., concern over DUI priors, lack of a license, and his probation status), whereas the prosecutor used that behavior to urge consciousness of guilt of the theft-related counts. He also claims that it furnished (2) proof that he lacked required specific intent. Permeating both of those arguments is a claim that this testimony (3) countered the prosecutors jury arguments that there was no evidence whatsoever that defendant was drunk and that, if there were, he would be charged with DUI.
Working backwards, point (3) smacks more of prosecutorial misconduct than evidentiary argument, yet defendant raises no misconduct claim now and likewise raised none below, either by objection or as a ground for new trial (Pen. Code, § 1181, subd. 5). We are aware of no authority that a judge ruling on a motion for new trial based on newly discovered evidence (id., subd. 8) should weigh the effect of new evidence not just on the trial evidence, but also on what counsel may have said to distort or mischaracterize it. Defendant cites authority that a new trial may be granted when newly discovered evidence " `contradicts the strongest evidence introduced against the defendant " (People v. Delgado, supra, 5 Cal.4th at p. 329, quoting People v. Martinez (1984) 36 Cal.3d 816, 823), but he cites none extending that principle to evidence contradicting a prosecutors strongest argument. The prosecutor here plainly exaggerated a lack of intoxication evidence, but jurors were fully instructed that "[s]tatements made by the attorneys during trial are not evidence" and that they had to "decide all questions of fact in this case from the evidence received in this trial and not from any other source." We presume they followed those instructions and found considerable evidence of intoxication. Defendants own statement, related by Officer Pamplona, was that "he had had something to drink" (fn. 2, ante), and defendants head-banging and other bizarre behaviors strongly implied that he had drunk to excess. Pamplona said he considered the behavior "strange," alluding specifically to his refusing to get into the patrol car, hitting his head against a car window, and hitting his head against a wall at the jail. We presume that jurors discounted the prosecutors contrary claims as mistaken or exaggerated.
This ties in with point (2), whether Hughess testimony probably would have led jurors, on retrial, to conclude that defendant lacked the "specific intent" of intending to temporarily deprive the Hondas owner of possession (count 1), knowing the car was stolen (count 2), or intending to use the key to commit an unlawful act (count 3). (Fn. 1, ante). It is important in this respect to note that the prosecutor, while overreaching in suggesting that there was no evidence at all of drunkenness, rhetorically asked jurors at one point, "What evidence do we have that he was so drunk he didnt know what he was doing?" and answered, "Absolutely none." This part of the summation was fair, for the evidence that defendant had something to drink and was in some respects acting oddly (including banging his head and trying to kick out windows in the patrol car) did not, in the total picture, support the idea that he was too drunk to form the specific intents with which he was charged (see Pen. Code, § 22, subd. (b)). He had no trouble recognizing that he was being followed, evading an officer by pulling off into a residential area, parking and abandoning the car, vocally refusing orders to stop, running, and throwing his key.
Defense counsel, in summation, argued in part that defendant had drunk to the point that "his state of mind, clearly wasnt all there," yet no specific instruction was given on the effect of intoxication on specific intent (Pen. Code, § 22, subd. (b)). Defendant raises no claim of error as to the omission and seems to assume that such instruction would be given on a retrial.
Sergeant Hughess testimony would have corroborated, but not greatly altered, that showing, and this highlights the trial courts conclusion that the testimony would be "possibly useful" but not raise a "reasonable probability" of a different result on retrial. Hughes, like Pamplona, found defendants behavior to be strange or, to use Hughess word, "irrational," and similarly found defendant "denying involvement in anything." Hughes was only with defendant for one or two of his 10 minutes total on the scene, and defendant was already arrested at one of the cars by the time he arrived. In that short time, he found "irrational" defendants ranting, raving, cursing, and yelling at everyone. He detected a strong odor of alcohol, which Pamplona had not mentioned, but stressed that defendant was not "falling down drunk." Hughes was able to calm him by explaining that he would either go cooperatively or have to be restrained, and would have a chance at the station to say whatever he needed to talk about. Defendant apparently remained calm for the trip to the station. Hughes did not remember whether he asked defendant how much he had had to drink. (Contrast People v. Hayes, supra, 172 Cal.App.3d at pp. 520-525 [newly discovered evidence would have laid a foundation for expert opinion, excluded at trial, that drug use affected the defendants ability to intend and premeditate a killing].)
Defendants last point is that Hughess intoxication testimony would present fear of a DUI arrest or probation violation as a "credible alternative explanation" to theft-offense guilt. We reject, first, his view that the court "failed to consider" this point. His counsel argued it at length, explaining that she had urged jurors at trial that he "feared being in trouble for being on probation" for DUI, that he was afraid of getting another DUI, and that counsel, for that reason, never objected to having jurors see DMV records showing defendants DUI history. Counsel urged that the jury should have heard that "the reason he hid the fact he was driving was because he was drunk, not because he knew the car was stolen." The courts lack of specific comment on this part of the argument does not establish that it was not considered.
Moreover, the ruling is supported in that respect. To repeat, Hughess testimony was largely corroborative of what Pamplonas trial testimony showed—that defendant had been drinking and acted in some ways strangely, suggesting intoxication. Both were presumptively credible witnesses, and Hughes did not offer enough facts from which a jury was likely to accept this "alternative explanation" over the strong inferences that defendants flight and disposal of the key betrayed guilt of the theft-related counts. In fact, Hughess testimony was in some ways less helpful than Pamplonas. Hughes came upon the scene later than Pamplona and, unlike Pamplona, did not recall any specific denial by defendant of having driven the Honda.
The record supports the courts implicit ruling that none of the truly newly discovered evidence, separately or in the aggregate, rendered a different result probable on retrial. Unmistakable abuse of discretion does not appear. (People v. Delgado, supra, 5 Cal.4th at p. 328.)
II. "Brady" Violation
The record also supports the courts rejection of the claimed Brady violation. " `[T]he term "Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called "Brady material"—although, strictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. [Citation.] Prejudice, in this context, focuses on `the materiality of the evidence to the issue of guilt or innocence. [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction `more likely [citation], or that using the suppressed evidence to discredit a witnesss testimony `might have changed the outcome of the trial [citation]. A defendant instead `must show a "reasonable probability of a different result." `[Citation.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)
The court, in denying the new trial motion, used the reasonable-probability language of Brady, evidently assuming for sake of argument that there was a required state suppression of Hughess testimony. For reasons discussed at length in part ID above, we find the reasonable-probability determination supported and therefore have no occasion to reach other issues.
DISPOSITION
The judgment is affirmed.
We concur:
Lambden, J.
Richman, J.