P. v. Cerda

P. v. Cerda

Filed 9/11/08 P. v. Cerda CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL CERDA, Defendant and Appellant.

A116397 (Contra Costa County Super. Ct. No. 05-041754-3)

A jury found appellant Victor Manuel Cerda guilty of second degree murder, attempted second degree murder and being an active participant in a street gang. (See Pen. Code,[1]  187, subd. (a); former  186.22, subd. (a), 664.) Two weapon use enhancement allegations were also found to be true. (Former  12022.5, subd. (a), 12022.53, subds. (b)-(d).) Cerda was sentenced to a total term of 42 years 4 months to life in state prison. On appeal, he argues that irrelevant and cumulative gang evidence deprived him of his constitutional right to a fair trial and that his motion for new trial should have been granted. We affirm the judgment.

I. Facts

A. Shooting and Investigation

About 7:30 p.m. on the evening of June 4, 2003,[2] Jorge Herrera and T.B. were at San Pablos Davis Park. One had a bottle of beer in his hand. The park supervisor advised him that he was not allowed to have beer at the park. The man said OK and the two men walked on. Fifteen minutes later, Herrera and T.B. were back at the park in the picnic area. The man who held the beer bottle was sitting in the picnic area conversing with another man. Someone called to Herrera and T.B., briefly attracting park goers attention to them. Soon, a gun shot rang out. The park supervisor saw a young manlater identified as appellant Victor Manuel Cerda, then age 17running quickly with a gun in his hand toward Herrera and T.B., who had been leaving.

The park supervisor recounted that Herrera stood still looking stunned, his hands outstretched. T.B. took off running as soon as the first shot was fired. Neither Herrera nor T.B. was armed. Neither of them spoke to Cerda, who continued running toward them and shooting several more times. As Herrera began turning away, Cerda shot him. Herrera took a few steps and fell. Cerda fled, accompanied by two others.

While waiting for a response to a 911 call, people at the park tried to assist Herrera, who was coughing up blood. Soon after 8 p.m., San Pablo police and paramedics arrived. Herrera died of a gunshot wound from a bullet that entered on the side of his back near his shoulder blade and travelled through his chest before exiting his body on the other side near his upper arm. His body gave off a strong odor of alcohol.

For his part, T.B. went to the department and gave a videotaped statement to police on the night of the shooting. He seemed nervous and scared. He smelled of alcohol, but he was not intoxicated. T.B. told police that when he was at the park, he heard someone say something in Spanish from the picnic area, but he did not understand what was said. He asked What did you say? T.B. said that he challenged the man who yelled at him. The shooter pulled a black semiautomatic handgun out of a duffel bag, and T.B. verbally challenged him to fight like a man one-on-one. Then, the man shot him, prompting him to turn and run. He was wounded in the forearm.

T.B. gave police a description of the shooter, but he was reluctant to identify him. He left the station late that night, but returned the following day to offer more information about the shooting. That day, when asked to identify the shooter, T.B. selected photographs of Cerda.

T.B. had also identified Francisco Perez as someone who was present at the time of the shooting.[3] San Pablo police encountered Perez a few days later near Richmond High School. The police observed three Hispanic males pointing to fresh graffiti saying 187 on Chaps, while laughing and flashing gang signs at two African-American males. When the police approached the three Hispanic males, two of themone of whom was later identified as Cerdaran off. A group of Hispanic Sureos gang members were in front of the high school, including Perez.

Out of the earshot of other gang members, one officer questioned Perez about the park shooting. Perez admitted that he had heard the gunshots. The officer wanted to question Perez further, but the young man was reluctant to appear to be cooperating with police. At his request, the officer pretended to arrest Perez, handcuffing him and taking him to the department.

On June 9, San Pablo police questioned Perez about the shooting in a videotaped interview.[4] At first, he denied knowing who shot Herrera and T.B., but later Perez told the police what he saw there. Perez told police that at the park, some men exchanged gang epithets and that one man was holding a bottle. Gio pulled out a Magnum. Perez heard four shotsthree shots, then a pause, then a fourth. He told police that T.B. was arguing, but that Herrera was not.

Perez identified himself to police as a Sureo. The police believed that he was an associate, but not a full-fledged gang member. When he identified a photograph of Cerda, Perez said that Cerda was crazy and had spent many years in juvenile hall.[5]

After interviewing Perez, the police went looking for Cerda at his San Pablo home. When he saw the police coming, he tried to flee and hide, but the police arrested him. I.M. was present at that time and was also detained. Cerda had smoked marijuana shortly before his arrest.

In a bedroom of Cerdas residence, police found a backpack with the name Geo and a reference to ML on it. Inside the backpack, they found a blue bandana and belt, some gang writings and a box containing two shotgun shells.[6] The police also found a file organizer containing mail addressed to Cerda and numerous writings related to gang activity. A notebook with gang writings in it and Cerdas name on it was also found. The police did not find any weapons.

The police questioned Cerda in a videotaped interview on the night of June 9. He admitted that he went by the name Geo. He said that he had been a member of the MLthe Mexican Locos, a subset associated with the 13s or Sureos gangbut that he had dropped it. At first, Cerda repeatedly denied being present at the park on the day of the shooting and being the shooter. Eventually, he admitted that after T.B. threw down a bottle and put his hand to his waist, Cerda shot him with a .357 Magnum. He estimated that T.B. was 10 to 12 feet away from him at the time of the shooting. Cerda said that T.B. had stared him down in an aggressive manner. He did not say that Herrera reached for a weapon.

Cerda told police that he disposed of the weapon in a creek. He insisted that the shooting was accidental and that he shot in self-defense. Asked whether he earned stripesgained status in the ganghe said no, although he noted that one could earn stripes for killing someone. Cerda did not brag about how many stripes he earned for the Herrera killing. He did say that its not hard to kill somebody.

After the videotaped interview, Cerda led the police along the route he took when he fled the park. He also showed police the creek where he has disposed of the gun. During the drive, Cerda spoke about his experiences obtaining, possessing and selling various types of weapons. He told the police that he would retaliate against anyone who testified against him.

Cerda admitted that he was one of the Hispanic males who had run off when police approached them near Richmond High School. He bragged that he and his cousin had painted the 187 on Chaps graffiti, referring to the Herrera murder. He said that more Norteos would have to die and would die after this. When the police told Cerda that Herrera was not a Norteo, Cerda said that he should not have been associating with one. The police said that Herrera was shot in the back as he was walking away, prompting Cerda to say sarcastically, I did what I had to do. He repeated this statement several times. Engaging in a ruse, the police said that they had the shooting on videotape. Cerda smiled and said that he could not wait to see it.

Cerda told police that Sureos were stronger and more numerous than Norteos. Asked again if he earned stripes for killing Herrera, this time, Cerda said yes, but that he already had his stripes from other incidents. He stated, You dont even know all that Ive done. He told police that he was not afraid of going to jailhe was certain that he could handle it. Cerda said that if he was sentenced to more than two years for this offense, he would either kill himself or the judge would have to pay. He threatened to attack the judge with a chair.

When the interrogation was completed, Cerda was taken to juvenile hall. On June 23, San Pablo police went to juvenile hall to take photographs of Cerdas tattoos. At that time, Cerda told the police that there was no evidence against him. He denied being at the park at the time of the shooting and that his girlfriend could give him an alibi for that day.

In November 2004, the grand jury indicted Cerda for first degree murder. This charge carried an enhancement for personal discharge of a firearm causing great bodily injury or death, and a special circumstance for commission of the offense to further the activities of a criminal street gang. Cerda was also indicted for attempted murder, which also carried its own enhancement for personal discharge of a firearm causing great bodily injury. The grand jury also indicted him for the substantive offense of being an active participant in a street gang, again enhanced by the personal use of a firearm. (See  187, subd. (a), 190.2, subd. (a)(22); former  664, subd. (a), 186.22, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)-(d).) Cerdas attempt to set aside the indictment was partly successful,[7] but was primarily denied.[8] (See  995.) Motions to dismiss the indictment and to suppress or exclude the statements he made to police were denied.

B. Prosecution Evidence

Cerdas friend Francisco Patiya Perez testified for the prosecution at trial.[9] Perez did not consider himself a member of the 13s or Sureos gang,[10]but he hung out with Cerda, who he thought was a member of that gang. Cerda was a member of the ML or Mexican Locos gang. He had an ML tattoo on his stomach. The Sureos rivals were the Norteos gang, known as 14s. Perez admitted that, together, he and Cerda had stolen cars.[11]

On the day of the shooting, Perez was in the picnic area at Davis Park with another 13 named I.M. or Queso and a third person. Perez saw an acquaintance of hisJorge Herrerawith then 16-year-old T.B.. T.B. was a 14 gang member and he was carrying a beer bottle. Herrera was someone who knew people who were 14s, but Perez did not think that he was one of the Norteos. Herrera came up to Perez and asked Whats up? Herrera shook hands with Perez and I.M.. T.B. looked on, nodding. Perez and Herrera had a brief, friendly conversation before Herrera and T.B. walked on.

A few minutes later, Cerdawho went by the street name Geoand a girl known as Baby Girl arrived at the picnic area. Cerda had a backpack with him. Noting T.B. in the distance, Baby Girl[12] identified him as a Chapa derogatory name for members of the Norteos, which are a rival gang to the Sureos. Cerda looked toward T.B. and Herrera and began calling out to them loud enough that they heard him from a distance. T.B. yelled back at Cerda; Herrera did not. T.B. and Herrera walked back toward Cerda. Cerda moved toward them with his backpack in hand. Perez and I.M. trailed behind him. T.B. walked fast holding a large beer bottle in his hand. He did not seem to have a gun, but he held the bottle by the neck as if he was going to throw it. Herrera moved more slowly than his companion, but once T.B. stopped, Herrera caught up with him so that they were side by side.

Cerda removed a gun from his backpack and pointed it at T.B.. T.B. turned and started running. Cerda fired three shots in rapid succession. Herrera did not make any threatening moveshe just stood there a while, then walked away a few steps. Perez saw Cerda pause and then shoot once more, hitting Herrera in the back.

Perez told the jury that at this point, everyonehimself, Cerda, Baby Girl and I.M.ran from the park. Afterward, he wanted to tell the police what happened, but feared retaliation from gang members. Within a few days of the shooting, Perez arranged for police to bring him into the station for questioning on a pretext.

At trial, San Pablo Police Detective Mark Ferreira testified about Cerdas gang writings. He read a number of these writings into the record for the jury. Many contained violent imagery, gang language, threatens to kill and derogatory terms for Norteo or 14 gang members. There was also evidence that the writer had known gang friends who had been killed. After a break, Ferreira read six more of these writings into the record. Each writing referenced gangs, gangbanging, killing Norteos, and/or paying someone back for the death of a friend.

T.B. testified for the prosecution at trial.[13] He told the jury that he was not a member of the Norteos gang, but had friends who were. On June 4, he and his friend Jorge Herrera were drinking beer at Davis Park. T.B. had a brief conversation with some people he did not know as he and Herrera passed through the picnic area and started to leave the park. T.B. heard someone yell. He thought these remarks were directed toward him, prompting him to walk back toward the picnic area with Herrera. The man yelling at him from the picnic area began walking toward them. T.B. challenged him, asking What?

T.B. heard someone yell Sur Trecea reference to Sureos and their number 13. Almost immediately after that comment, the man who yelled at them pulled a gun out of a duffel bag and shot three times.[14]Things were happening very quickly at this point. A bullet grazed T.B.s forearm and he ran, telling Herrera to run, too. Moments later, T.B. ran back and saw Herrera on the ground. He denied making any motion as if he had a gun. He also testified that Herrera did not encourage him to kill anyone. T.B. was reluctant to answer some questions about his life at the time of trial, because he did not want Cerda or members of his gang to retaliate against him.[15]

Cerdas videotaped interview with San Pablo police was played for the jury. The jury also saw photographs of gang graffiti found in Richmond and San Pablo, including the 187 on Chaps tag and references to Sureos, MLs, Geo, Baby Girl and Queso. Perezs interview tape was also played for the jury.

A gang expert opined that the motive for the Herrera shooting was to earn stripes, to show the shooters dominance within the ML gang, and to show dominance over the Norteos. He told the jury that, in his opinion, Cerda went to the park looking for rival gang members and verbally insulted the ones he found. He then escalated the dispute by using a weapon. By writing graffiti about the killing, the expert opined that Cerda advertised the fact of the killing to his gang and rival gangs alike.

C. Defense Case

Testifying in his own defense, Cerda identified himself as a member of the Mexican Locos, which was affiliated with the 13s. He told the jury that on the afternoon of the shooting, he and his girlfriend went to Davis Park with I.M.. They planned to shoot some birds, so they brought a pellet gun in a backpack. At the park, they met Perez and others. Cerda left to bring a girl who went by the name Baby Girl to the park. He took the backpack[16] with him when he went to pick her uphe did not want to leave the gun inside of it lying around. Along the way back to the park, Cerda retrieved a .357 Magnum that he had found a few days earlier and added it to his backpack.

When Cerda and Baby Girl returned to the park, his friends had settled in at the picnic area. Two men he did not knowHerrera and T.B.were shaking hands with some of them. They looked at Cerda funnythey were drunk, hostile and disrespectful to him and his friends. Cerda began arguing with T.B., asking him what his problem was. The two young men traded gang insults. Herrera said nothing. T.B. and Herrera left, then returned.

By this time, Cerda had learned that Herrera was a Norteo. The two men approached Cerda and his friends. One of the two yelled more gang insults at Cerda. T.B. identified himself as a Norteo and Cerda hurled another gang slur at him and Herrera. Backpack in hand, Cerda walked out to meet T.B. and Herrera with Perez and I.M.. Herrera called to T.B. to kill Cerda. When T.B. threw a bottle down onto the ground, lifted up his shirt and reached toward his waistband, Cerda assumed that he was going for a weapon. Cerda told the jury that when this happened, he did not thinkhe reacted by pulling out a gun and shooting at T.B.. He shot quickly at least four times. After Cerda fired the fourth round at Herrera, he ran, tossing the gun into the creek as he fled. He admitted burning his clothing so the police could not trace them to the killing.

Cerda told the jury that he did not intend to kill Herrera or to shoot T.B.. He fired the gun because he was scaredhe thought that T.B. was going to his waistband for a concealed weapon. He thought he was defending himself. Cerda testified that he fired at Herrera because he thought Herrera was making a move on him. He denied that the shooting was gang-related. Cerda told the jury that he did not hate Norteossome of his family and friends were Norteos. He admitted writing rap songs and letters about killing Norteos, but denied that he really meant to do so.

Later, when Cerda was arrested, the police questioned him about the shooting at the park. Initially, Cerda denied any involvement. He admitted at trial that this was a lie. He told the police that he shot at the groundwhich he later told the jury was also a lie.

Cerda was also questioned about prior police involvement, too. He admitted that when he was 13 years old, he shot a pellet gun at a six-year-old boy and a 12-year-old girl. When he shot them, he was not trying to defend himself. When the police questioned him about the incident, he initially denied any involvement in that matter. At trial, Cerda admitted that he lied to police in order to minimize his responsibility for the offense.

At trial, he admitted putting an MLs13 tag on the wall near the high school. He denied putting the 187 on Chaps graffiti there. He denied writing everything that was in the notebook found at his home, although he admitting writing some of it.

The defense also offered evidence supporting its theory that T.B. and Herrera had been aggressive toward Cerda. It offered testimony that T.B. was a violent Norteos gang member. It also brought out evidence that Herrera had a 0.7 blood alcohol levelthe equivalent of two and a half drinksat the time he died.

D. Verdict, Motion for New Trial and Sentence

Cerdas motion for acquittal on the substantive charges of the attempted premeditated murder of T.B. and of being an active participant in a criminal street gang was denied.[17]( 1118.1.) However, the jury was only instructed on the offense of attempted second degree murder of T.B..

Ultimately, the jury acquitted Cerda of the first degree murder of Herrera,[18] but found him guilty of the lesser included offense of second degree murder enhanced by the personal discharge of a weapon inflicting death. He was also found guilty of attempted second degree murder of T.B., but the jury found a related weapon discharge enhancement to be untrue. Cerda was also convicted of being an active participant in a criminal street gang. A third weapon use enhancement related to that offense was found to be true. (See  187, subd. (a); former  664, subd. (a), 186.22, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b)-(d).)

Cerdas motion for new trial on the basis of newly discovered evidence was denied. He was sentenced to a total term of 42 years 4 months to life in state prison. He was given an indeterminate term of 15 years to life for the murder, enhanced by a consecutive indeterminate term of 25 years to life for the weapon discharge enhancement. He also received a one-third consecutive determinate term of two years four months for attempted murder. The trial court imposed, but then stayed an eight-month term for being an active participant in a criminal street gang and a 16-month term for a related enhancement in order to avoid multiple punishment. (See  654.)

II. Gang Evidence

First, Cerda contends that irrelevant and cumulative gang evidence deprived him of his federal constitutional rights to due process and a fair trial. (See U.S. Const., 6th & 14th Amends.) During trial, some of Cerdas gang writings were read into the record. After several of them referenced gang affiliation and issued generalized threats to payback those Norteos who killed his friend, Cerdas counsel raised an objection that admission of further such evidence would be cumulative.[19]Outside the presence of the jury, the trial court instructed the prosecutor to select those writings that were relevant to the issue of gang affiliation. Cerdas counsel argued that to read all of the remaining writings would be cumulative, but indicated that reading one or two more would be acceptable. The trial court allowed six more gang-related writings to be read to the jury. It found that this evidence was relevant, as it tended to show the reasons for Cerdas acts and to reveal his state of mind. It also found that the prejudicial effect of this evidence did not outweigh its probative value. (See Evid. Code,  352.)

The additional writings were read to the jury, providing further evidence of Cerdas gang affiliation. None of them appear to have been written in the year of Herreras death. A gang expert witness later testified that these and other writings demonstrated the writers gang activity and lifestyle.

On appeal, Cerda claims that the challenged evidence was irrelevant and cumulative such that its admission violated his due process and fair trial rights. (See U.S. Const., 6th & 14th Amends.) The California Supreme Court has condemned the admission of evidence of gang membership if that evidence is only tangentially relevant because of its highly inflammatory impact. (People v.Champion (1995) 9 Cal.4th 879, 922, cert. den. sub nom.Champion v. California (1996) 516 U.S. 1049; People v.Cox (1991) 53 Cal.3d 618, 660, cert. den. sub nom.Cox v. California (1992) 502 U.S. 1062.) If gang evidence is of limited relevance, its admission runs the risk of its being used as improper propensity evidence. (People v.Cardenas (1982) 31 Cal.3d 897, 904-905.) The trial court has broad discretion to determine whether evidence of gang membership is relevant in a particular case. (People v.Champion, supra, 9 Cal.4th at p. 922; People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.) If the evidence is found to be relevant, the trial court must decideas it did in Cerdas casewhether its prejudicial effect outweighs its probative value. (Ibid.; see Evid. Code,  352.)

Cerda argues that the challenged evidence was not sufficiently relevant and was too prejudicial to be admitted. (See Evid. Code,  352.) We disagree, for many reasons. The challenged evidence was directly relevant to prove the special circumstance that the alleged first degree murder of Herrera was committed while Cerda was an active participant of a criminal street gang and the offense was committed in furtherance of the activities of the criminal street gang. (See  190.2, subd. (a)(22.) It was also probative on the substantive offense that Cerda was an active participant of a criminal street gang. (See former  186.22, subd. (a).) Evidence of Cerdas gang connections was also relevant to prove the motive for the murder and attempted murder charges. (See  187, subd. (a); former  664, subd. (a).) The prosecution had the burden of proof on the charges and the special circumstance. (See In re Winship (1970) 397 U.S. 358, 363-364; see also  190.4, subd. (a).) It is not required to limit its case by presenting only enough evidence to be legally sufficient to meet that burden of proof. (People v.Zambrano (2007) 41 Cal.4th 1082, 1138, cert. den. sub nom.Zambrano v. California (2008) _ U.S. _ [128 S.Ct. 1478].) The challenged evidence was not tangentially relevant, but rather was highly probative on these key issues at trial.

We also conclude that the challenged evidence admitted in this case was more relevant than evidence found to be less probative in some of the cited cases because the evidence came from Cerda himself. The challenged evidence was not third party testimony about a possible gang connection, but Cerdas own words showing his connection to the ML subset of the Sureos gang. (See People v.Champion, supra, 9 Cal.4th at pp. 919-921; People v. Olguin, supra, 31 Cal.App.4th at p. 1373.) More so than most gang evidence, the writings that Cerda himself wrote had a greater tendency in reason to prove or disprove all of the disputed factsthe substantive offense, the special circumstance, and the motivethat were of consequence to the action. (See Evid. Code,  210.)

We also find that the admission of the challenged evidence was not prejudicial. The jury that heard the challenged evidence also heard Cerda speak about the Mexican Locos ganga subset of the Sureosduring his videotaped interview with police and when he testified in court. It heard Cerdas friends identify him with the ML Mexican Locos ganga subset of the Sureos. It learned that Cerda had an ML tattoo. It had already heard several of Cerdas other writings linking him to the Mexican Locos and Sureos gangs and their culture of killing before the writings that are challenged on appeal were read to them. In such circumstances, the challenged evidence was, at worst, cumulative. (See People v.Cardenas, supra, 31 Cal.3d at p. 905 [exclude cumulative evidence if it creates danger of undue prejudice to defendant].) Any additional prejudice to Cerda from the challenged evidence beyond the prejudice from other unchallenged, properly admitted evidence was minimal.

The prejudice that Evidence Code section 352 seeks to avoid is not that naturally flowing from relevant, highly probative evidence. Instead, the statute attempts to avoid the prejudging of a case based on extraneous facts. (People v. Zapien (1993) 4 Cal.4th 929, 958, cert. den. sub nom. Zapien v. California (1993) 510 U.S. 919.) In this context, prejudicial evidence tends to evoke an emotional bias against the defendant as an individual based on evidence that has very little relevance to disputed trial issues. (People v. Bolin (1998) 18 Cal.4th 297, 320, cert. den. sub nom. Bolin v. California (1999) 526 U.S. 1006; People v. Yu (1983) 143 Cal.App.3d 358, 377, cert. den. sub nom. Yu v. California (1984) 464 U.S. 1072.)

We are satisfied that this evidence was not prejudicial in this sense. We have already found that the evidence was more than a little relevant. In addition, the jurys mixed verdictacquitting Cerda of some charges and convicting him of othersdemonstrates that it was not overcome by passion or prejudice, but required the prosecution to prove its case against the defendant beyond a reasonable doubt. The jury opted for less than the first degree murder conviction that the prosecutor sought and rejected the weapon use enhancement related to the attempted murder charge. Both of these verdicts counter the suggestion that the challenged evidence inflamed the jury to Cerdas prejudice. Thus, we find that the trial court did not abuse its discretion by admitting the challenged evidence. (See, e.g., People v.Champion, supra, 9 Cal.4th at pp. 922-923; People v. Olguin, supra, 31 Cal.App.4th at p. 1373.)

III. Motion for New Trial

Cerda also contends that his motion for new trial should have been granted. He moved for a new trial, citing newly discovered evidence from I.M., who first indicated a willingness to testify after the jury convicted Cerda. I.M. was with Cerda at the time of the shooting. He was being prosecuted in a separate juvenile court proceeding while Cerda was being tried for Herreras murder. I.M.s attorney forbade Cerdas counsel from contacting her client. In his motion for new trial, Cerda argued that I.M.s testimony that Herrera and T.B. confronted Cerda and one of them reached for his waistband before the shooting would corroborate his own testimony that he acted in self-defense. The trial court denied the motion on several grounds, including that the evidence from I.M. was not newly discovered. On appeal, we find this ruling to be dispositive.

A criminal defendant may make a motion for new trial on the ground that new, material evidence is discovered that could not have been produced at trial with the exercise of due diligence. ( 1181, subd. (8).) On a motion for new trial based on newly discovered evidence, a trial court considers several factors, including whether the evidenceand not simply its materialityis newly discovered and could not have been brought out at trial with the exercise of due diligence. (People v. Delgado (1993) 5 Cal.4th 312, 328; see  1181, subd. (8).) A motion for new trial is determined on the basis of the facts specific to that particular case. A trial courts determination of a motion for new trial will not be overturned on appeal absent an abuse of discretion. (People v. Delgado, supra, 5 Cal.4th at p. 328.)

The testimony that I.M. might have offered[20] was not newly discovered evidence, but a different form of evidence already in Cerdas possession during trial. Defense counsel had access to I.M.s videotaped statement to police and was aware of its exculpatory contents, but made a tactical decision not to offer it into evidence because it contained other inculpatory evidence that was damaging to another aspect of Cerdas case.[21] The fact that the form of the evidence changed did not render the known content of I.M.s potential testimony newly available.

Notwithstanding this conclusion, Cerda focuses on the due diligence element, contending that the trial court applied too narrow a standard to determine what constituted newly and diligently discovered evidence. He also criticizes our conclusion that the evidence was not newly discovered as effectively punishing him for his counsels lack of diligence in bringing out this evidence. He reasons that we should exercise our discretion to relax the standard of diligence. (See People v. Martinez (1984) 36 Cal.3d 816, 825.)

This argument is flawed, for several reasons. First, Cerda blurs the separate requirements that the evidence be newly discovered and that it not be evidence that counsel could have discovered earlier in the exercise of due diligence. (See  1181, subd. (8); People v. Delgado, supra, 5 Cal.4th at p. 328.) These two elements can beand in this case, areseparate issues. Regardless of whether defense counsel acted with diligence or not, the fact remains that I.M.s testimony was known to defense counsel during trial. It was not evidence that was newly discovered after the jury rendered its verdict. Thus, a separate and key element of the ground for new trial was not established.

Second, as this is not a due diligence case, it cannot be said that Cerda is being punished for any failing of defense counsel. Defense counsel made a reasonable tactical choice not to use I.M.s videotaped statementthe only form of his testimony that the defense had available to itbecause that evidence was both inculpatory and exculpatory. That decisionnot any lack of diligence on defense counsels partis the reason why the jury did not hear I.M.s evidence.

Third, even if due diligence was at issue, the California Supreme Court has cautioned that our limited discretion to relax the due diligence standard is only to be exercised in cases in which the new evidence would seriously undermine an extremely weak prosecution. (See People v. Dyer (1988) 45 Cal.3d 26, 51-52, cert. den. sub nom.Dyer v. California (1988) 488 U.S. 934.) In this matter, I.M.s evidence would have done no more than corroborating evidence that the jury had already heard, rather than seriously undermining the prosecution. Thus, we find that the trial court did not abuse its discretion when it denied Cerdas motion for new trial. (See, e.g., People v. Delgado, supra, 5 Cal.4th at p. 328.)[22]

The judgment is affirmed.

_

Reardon, J.

We concur:

_

Ruvolo, P. J.

_

Sepulveda, J.

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[1] All statutory references are to the 2003 version of the Penal Code in force at the time of the charged offenses, unless otherwise indicated. Although various statutes referred to in this opinion have been amended since that time, none of those amendments made any substantial change to these provisions as they apply in this matter. (See former  186.22 [Stats. 2001, ch. 854,  22], 664 [Stats. 1997, ch. 412,  1], 12022.5 [Stats. 2002, ch. 126,  3], 12022.53 [Stats. 2002, ch. 126,  4].)

[2] All subsequent dates refer to the 2003 calendar year, unless otherwise indicated.

[3] Neither of the tapes of the two T.B. interviews were played for the jury.

[4] The videotape and transcript indicate that the interview took place on July 7, but the content suggests that the interview actually occurred before Cerda was arrested on June 9. That sequence of events is also consistent with police testimony.

[5] Cerda had been housed in juvenile facilities and a group home earlier in his life.

[6] There was conflicting evidence at trial about whether the backpack belonged to Cerda or to his younger brother.

[7] The district attorney also added a gang enhancement and an allegation of facts warranting Cerdas trial as an adult, but these allegations were stricken in March 2005. (See former  186.22, subd. (b)(1); Welf. & Inst. Code,  602, subd. (b)(1).) Cerda challenged the states right to try him as an adult, to no avail.

[8] In 2005, Cerda challenged the denial of his motion to set aside the underlying grand jury indictment, without success. (See  995; see also Cerda v. Superior Court (Apr. 14, 2005, A109763)[writ den.].)

[9] Perez had also testified before the grand jury.

[10] Perez admitted that he was a member of another gang, but not a violent one.

[11] Cerda had been convicted of assault with a deadly weapon in 1999 and automobile theft in 2001. For his part, Cerda brought out evidence suggesting that once Perez gave his statement to police, a pending car theft matter was dismissed.

[12] The jury heard evidence that Baby Girl reported to police that Cerda was angry, arguing with T.B. and Herrera in a heated manner, and using gang insults.

[13] He admitted having been convicted of robbery and attempted robbery as a juvenile. He also told the jury that at the time he testified before the grand jury, he was confined at a juvenile ranch.

[14] T.B. told police that after the gun was drawn and before shots were fired, he challenged the gunman to fight like a man one-on-one.

[15] Initially, T.B. was reluctant to identify Cerda, perhaps for fear of retaliation.

[16] He told the jury that the backpack taken from his home at the time of his arrest was not the one he had at the park. The seized pack belonged to his younger brother.

[17] His midtrial motions to set aside the indictment and for a mistrial were also denied.

[18] Once Cerda was acquitted of first degree murder, the special circumstance of committing that offense while being an active participant in a criminal street gang no longer applied. (See  190.2, subd. (a)(22).)

[19] Preliminarily, the People contend that Cerdas objection was insufficient, because he did not cite due process as a ground for his objection. However, as the trial court seems to have understood the objection well enough to lead it to make a ruling pursuant to Evidence Code section 352, we find that the issue was properly preserved for our consideration on appeal.

[20] In fact, it is not clear whether I.M. would have testified, as he asserted a Fifth Amendment privilege not to testify at the grand jury proceedings and his counsel advised the court at the motion for new trial hearing that she would continue to advise him to do so. We need not resolve this issue, as we are satisfied that the trial court properly denied the motion for new trial for another reason.

[21] I.M. told police that Herrera had withdrawn at the time that Cerda shot his victim in the back.

[22] In light of this conclusion, we need not determine the prejudice issue also raised on appeal.