Filed 2/21/18 P. v. Paco CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FABIAN NAVARRO PACO,

Defendant and Appellant.
H043100
(Santa Clara County
Super. Ct. No. C1491899)
Following a jury trial, defendant was convicted of a lewd and lascivious act on a child under the age of 14 years (Pen. Code, § 288, subd. (a). ) He was found not guilty of three other sex offenses against the same victim. The trial court granted probation on certain terms and conditions.
During trial, two seated jurors overheard an exchange in Spanish between Lydia, the alleged victim, A. (Lydia’s mother), and Y. (Lydia’s older sister) in the elevator. The exchange did not come to light until the case had already been submitted to the jury for decision. The two jurors were removed from the jury, and deliberations continued with alternate jurors. Defendant unsuccessfully moved for a mistrial, to reopen the case for further evidence, and for a new trial based on new evidence.
On appeal, defendant asserts that the trial court abused its discretion in denying those three motions. He asserts that the court’s denials of those motions violated his rights to confrontation, a fair trial, and due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Defendant similarly contends that the court erroneously excluded evidence of coaching by A. in violation of his rights to confrontation and due process under the Fifth and Fourteenth Amendments to the United States Constitution.
We conclude that the trial court acted within its sound discretion in denying the motions and that its denials of those motions did not result in any constitutional violation. Accordingly, we affirm the judgment.
I
Procedural History
By first amended information, defendant was charged with committing four offenses against the same victim: one count of continuous sexual abuse of a child under 14 years of age between January 1, 2014 and August 27, 2014 (§ 288.5, subd. (a)) (count 1) and three counts of a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (counts 2, 3, and 4). Counts 2 and 3 were alleged to have occurred between January 1, 2014 and March 30, 2014. Count 4 was alleged to have occurred on or about August 27, 2014.
The charges were tried to a jury. Its deliberations began on May 20, 2015.
On May 22, 2015, during jury deliberations, Juror No. 9 passed a note to the court. The juror’s note to the judge stated: “I want to tell you that one day during the trial, I was coming on the elevator to the fifth floor and [A.], [Y.], and Lydia were there, and I heard when [A.] told Lydia ‘to not say that she beat her and to say just what the lawyer had told her to say.’ That incident doesn’t go out of my mind, therefore, I can [sic] believe that [defendant] is guilty. I try to forgot [sic] this incident but I can’t. I hope you understand how I feel.” The court confirmed that Juror No. 9 had not shared the note with other jurors. The court said it would talk with the juror the following Tuesday.
On May 26, 2015, the court questioned Juror No. 9 regarding her note. The court again confirmed that the juror had not shared the information in the note with any other juror. The juror informed the court that she had entered the elevator on the second floor with Juror No. 11, A., Y., and Lydia. The conversation that was overheard took place in Spanish, and Juror No. 9 spoke Spanish. Juror No. 9 got out of the elevator on the fifth floor.
Juror No. 9 indicated that she could not get the conversation out of her head or set it aside and that it would affect her decision in the case. When asked why she did not immediately tell the deputy or send a note when she overheard the conversation, Juror No. 9 explained that she had “just tried to leave it outside” and that she had been uncertain whether to say anything.
The court found “good cause to doubt [Juror No. 9’s] ability to perform her duties,” it found that misconduct had occurred because she had not immediately reported what she had overheard to the court, and it indicated its intent to remove Juror No. 9 from the jury.
The court then separately questioned Juror No. 11., who indicated that she understood Spanish, although not perfectly. She could get by with Spanish. Juror No. 11 had been standing next to Lydia and Y. at the back of the elevator when she overheard a conversation in Spanish between A., Lydia, and Y. A., who was facing Lydia and Y., was telling Lydia something “along the lines, ‘Don’t say this. Say this. Say this. Don’t say this.’ ” Then Y. “got into the conversation and kind of provided an example of . . . how you’re supposed to say it.” “Then they all kind of chuckled and laughed . . . .” Juror No. 11 had overheard that conversation on the morning before trial began, right before Lydia took the stand.
Juror No. 11 told the court that this incident had “been on [her] chest the entire time” and that it had “become an issue for [her].” She indicated that the overheard conversation had been bothering her throughout the entire trial. When the jury began to discuss the possibility of witness coaching, the overheard exchange became an issue for her. Juror No. 11 thought it was impacting her ability to evaluate the credibility or believability of the witnesses. The court ordered her not to talk about it with other jurors. After the juror left the courtroom, the trial court indicated that it was going to remove Juror No. 11 based on what she had said.
On May 26, 2015, the trial court proceeded to confirm that none of the other jurors and the two alternate jurors had overheard the conversation in the elevator between A., Y., and Lydia. The court removed Jurors Nos. 9 and 11 from the jury and substituted the two alternate jurors for the excused jurors. The court then considered the defense motion for a mistrial and the defense motion for a recess until the judge who had presided over the trial returned. The court denied both motions.
Later that same day, the defense requested permission to reopen the evidence in the case. Defense counsel asserted that the evidence of the conversation overheard in the elevator supported the defense’s theory of the case, namely that the alleged victim’s mother “coached, conditioned and suggested the answers to her daughter . . . .” He asked permission to call the two dismissed jurors as witnesses for the defense based on defendant’s constitutional rights under the United States and California Constitutions, including his rights to a fair trial and confrontation of witnesses. The trial court denied the defense request to reopen the evidence.
The jury reached its verdicts on May 27, 2015. It found defendant guilty of committing one lewd or lascivious act on a child under the age of 14 years (count 4), which allegedly occurred on or about August 27, 2014. The jury found him not guilty of the remaining counts.
The defense brought a motion for a new trial based on newly discovered evidence and submitted, among other things, declarations of the original Jurors Nos. 9 and 11 in support of the motion. On June 29, 2015, after the motion hearing, the trial court denied the motion because the “proffered evidence” was “cumulative of what the jury already heard,” finding that, even if the jury had heard it, the evidence “would not have resulted in a different verdict.”
II
Evidence
Lydia was nine years old and in third grade at the time of trial in 2015. At the time of trial, she was no longer living with her mother; she was living with her father.
In 2014, Lydia had been living in a house in San Jose with her mother, her maternal grandfather, and siblings; she had shared a bedroom with other family members. Defendant had lived in the attached garage. Lydia’s older brother George, also known as Jorge, had lived there for a period.
Norma was a renter who lived in the house; she had moved in at approximately the beginning of July 2014. Norma noticed defendant paying special attention to Lydia and giving her things. Norma had been sexually abused by an uncle when she was six or seven years old, and because of that experience, defendant’s interactions with Lydia had made Norma feel uneasy. Norma told A. to pay attention to her daughters and to be careful when there were adults at get-togethers. Norma saw Y. drawing a heart that said “Paco y Lydia.” Subsequently, Norma again expressed concerns to A., this time mentioning that defendant was paying special attention to Lydia and telling A. about the heart drawing.
On August 27, 2014, A. picked up Lydia and drove her home; Y. was also in the car. Lydia was the last person to come into the house. Y. indicated to defendant that Lydia was home. She said something like, “Paco, look who I brought you.” Defendant greeted Lydia by the front door. Defendant kissed Lydia and stuck his tongue in her mouth. Y. had seen defendant leaning in to kiss Lydia, but she did not actually see the kiss. After he kissed her, defendant gave Lydia a soda.
On the evening of August 27, 2014, Norma learned that defendant had just given a soda to Lydia. Norma told A., “Don’t let Lydia drink from it.” Norma had seen information on the Internet indicating that a “really cold” can of [soda] could be injected with something using a needle, and she shared that information with A. Norma was generally “concerned about stuff being put in sodas and given to kids.” A. told Lydia not to drink the soda, so Lydia did not drink it.
A. called Lydia into the bedroom. Others were in the room at times. A. said that Lydia had to tell her the truth and that Lydia did not have to have any secrets. A. asked Lydia whether defendant had ever touched her in various places. Lydia was afraid to tell her mother what had just happened because she feared getting in trouble. A. could be kind of scary sometimes, and Lydia was scared of her at that moment. Lydia was also embarrassed to tell her mother what had happened. Lydia disclosed that defendant had kissed her in the mouth with his tongue. Lydia was crying and shaking, and she appeared scared to A. Norma heard Lydia say that defendant had kissed her and put his tongue in her mouth. Lydia testified at trial that she had been crying because defendant had kissed her, and she indicated that it had made her feel bad and “yucky.”
On August 27, 2014, after learning that defendant had kissed Lydia with his tongue, A. confronted defendant. Lydia’s grandfather saw that Lydia was crying and frightened. He asked why she was crying, and Lydia told him that defendant had kissed her “in the mouth.” A. called the police.
Cassady Elischer, a San Jose Police Officer who responded to the house spoke with Lydia alone. Lydia was shy and hesitant to speak with him. Lydia said that defendant had kissed her three times. She indicated that no one had prompted her to lie.
Lydia then spoke to Police Detective Michael Nasser at the San Jose Police Child Interview Center, and the interview went into August 28, 2014. Lydia told the detective that defendant was a friend of her mother and that he lived in the garage. She said that defendant kissed her “in [her] mouth” and put his tongue inside her mouth. Lydia said it had happened more than one time, but she could not remember anything about the past two times, including where those incidents had happened. She indicated that defendant told everyone, including her, that he was going to marry her when she turned 18.
Lydia described to Detective Nasser what had happened earlier that day, specifically that her sister said, “Look who’s here.” Defendant then went over to her and said hi, and he kissed her on the mouth and put his tongue in her mouth. It happened while they were standing near the front door to her house. Her mother was already inside. The kissing made her feel bad; it felt “[l]ike something gross.” Defendant gave her a soda, but her mother told her not to drink it. Her mother told her to go to the bedroom.
When Detective Nasser asked Lydia why she did not tell anyone right away if it had happened before, Lydia explained that she had told a sister after the second time. Her sister said to “tell mom,” but Lydia did not tell her mother because she thought her sister would tell her mother. When asked, Lydia indicated that no one had told her what to say to the detective. She volunteered that her mother had just told her to tell the truth.
In pretrial testimony on January 12, 2015, Lydia had testified under oath that she did not remember where she was in the house when defendant kissed her the first time. At trial, Lydia testified that defendant had kissed her on, and stuck his tongue in, her mouth three times. But Lydia could not remember what she had been doing right before or right after the first two kisses, which she said occurred in the living room.
At trial, there was evidence that, months prior to August 27, 2014, Lydia had told Y. that defendant had kissed her. But Y., who was 14 years old at the time of trial, indicated that Lydia had not said that defendant put his tongue in her mouth. Y. had told Lydia to tell their mother, and then Y. had forgotten about it. Lydia did not disclose defendant’s kissing to her mother until August 27, 2014.
According to Lydia, prior to August 27, 2017, while they were alone in the living room defendant had put a ring on her finger and told her that he wanted to marry her. At trial, Y. testified that defendant had told Lydia more than five times that he wanted to marry her. Y. recalled that once in the living room when Y. was present, defendant had taken a plastic ring out of a box and said to Lydia, “This is going to be your ring when we are going to get married on your 18th.” Their grandfather had also been in the living room, but he was turned away and watching television.
At trial, defendant admitted twice stating that when Lydia turned 18, he would marry her. He claimed that his statement had been a joke and that others were present when he said it. He denied putting a ring on Lydia’s finger.
At trial, Lydia indicated that no one had ever told her to lie about what had happened to her and that she did not make it up. She indicated that her mother had not told her to lie. At trial, Y. also indicated that she had truthfully testified and that no one had told her to lie about anything she had said. When asked whether her mother had ever told her to lie, Y. responded, “I don’t think so.”
At trial, Norma acknowledged that Lydia was not the only person to whom defendant had given gifts. Norma also acknowledged that she had “[n]ever, never” seen anything inappropriate between defendant and Lydia and that she had “never, never, never” seen defendant touch Lydia in an inappropriate way.
III
Discussion
A. Evidentiary Background
At trial, there was also evidence that A. used physical punishment on her children. There was evidence that she had previously directed her children to lie and that she could be intimidating.
Lydia’s brother George testified that A. had physically abused him. She also had called him names and had been verbally abusive. She had hit him with a cord and with a spoon.
George testified that he had also seen his mother physically abuse Y. and Lydia. He recalled an incident in which A. became upset that Y. was not washing the dishes well and hit her with a spoon two times. He recalled a second incident in which A. was hitting Y. on the arm with a shoe. George had seen A. hitting Lydia on the arm as well. He saw A. hit Lydia on two occasions because Lydia was not doing what she was told.
A. admitted that she had physically punished her son George and that she had called him “garbage” and “bastard son.” On two occasions when she smelled marijuana on George, she hit him with an electrical cord. On the second occasion, George pushed her backward. She also whipped him with a cord when she discovered he had stolen approximately $1,300 from her father. George fought back and called her “nasty names.”
A. acknowledged that she had to discipline Y. at times. She acknowledged that she had twice slapped Y.’s face, once for calling her “stupid” and another time for saying that she was “a whore.”
A. denied hitting Lydia, but she stated that she had “demanded [Lydia’s] attention in a stern way.” She described Lydia as timid and docile. She indicated that when she told Lydia to do something, Lydia did it.
During a visit to defendant’s home in approximately July or August 2014, Kenneth, a male friend of defendant, asked Y. why she was so quiet that day. According to Kenneth, Y. replied that her mother had thrown her to the floor, kicked her, and hit her with a belt because Y. had lost her mother’s car keys.
Defendant testified that he had observed A. hitting her other children as well as Y. Defendant testified that he had seen A. physically abusing George in Lydia’s presence. George pushed A., and A. hit him with closed fists. Defendant had also observed A. physically abuse Lydia. She dragged Lydia by the hair from the living room into the bathroom. He could hear “screaming and yelling.”
Defendant said that when he last saw A. hit Y. in July 2014, Lydia was present, and that Lydia was crying and watching. Defendant also stated that he saw A. physically abuse Lydia’s brother, Adrian, in Lydia’s presence; Lydia was frightened and crying.
George testified that A. had told his siblings, including Lydia, and him to lie to child protective services (CPS) about her treatment of them. In his opinion, his mother was “not that honest.”
Defendant testified that in December 2012, he heard A. telling her children, including Lydia, to lie to the social worker who was coming to visit. She told them that “if they didn’t say what she was [telling] them to say, . . . [they] were going to be taken away and they were never going to come back.”
Veronica, a female friend of defendant who visited him when he was living in the garage of the home shared with Lydia’s family, testified. According to Veronica, during a visit she heard little A. saying in front of her grandfather that her mother was telling her that she could not go to her father’s house and that she should say that her father hit her.
Defendant also testified that he had also heard A. tell little A. to lie about her father. A. had instructed little A. to tell social services that her father had slapped her, and A. had warned little A. that she would “beat her ass” if little A. did not say it.
Miguel, a friend of defendant, had visited defendant when defendant was living in the garage of the home shared with Lydia’s family. Miguel testified that when he was visiting at the house, he asked Adrian to help with dishes. A. told Miguel that he was not the adult in charge of her son and he could not touch her son or tell her son what to do. A. threatened that if Miguel did not stay away from Adrian, she would call the police and say that he was molesting her son.
At trial, A. denied conspiring with other family members to frame defendant. She denied telling her father or her daughter little A. to lie in court. She denied coaching her daughters for the past nine months on what to say when they talked to police or appeared in court.
In closing argument, defense counsel repeatedly asserted that A. was a controlling parent. Among other things, defense counsel argued that A. hit her children and that A. was capable of telling her children to make up stories or lie. He intimated that Lydia’s testimony was influenced by A., who was seen with her daughters in the hallway outside the courtroom.
B. Motion for Mistrial
After the case had been submitted to the jury for decision, defense counsel asked for a mistrial based on the conversation overheard by the two former jurors in the elevator. He argued that the evidence went to the heart of the defense case, and it showed that A. had violated a direct court order to not talk to her daughter about the case and that A. had tampered with a witness. He asserted that the defense theory was that A. physically abused her children and “condition[ed] [them] to say certain things.”
While the elevator exchange seemed to reveal an apparent attempt by A. to control Lydia’s prospective testimony at trial, particularly with respect to her treatment of Lydia, defendant has not shown that such evidence compelled the granting of a mistrial. There was no showing that Lydia had been told or coached in the elevator to testify falsely about defendant’s behavior toward her. In and out of court, Lydia had consistently described defendant’s kissing conduct on August 27, 2014 and reported the number of times that defendant had kissed her. The conversation in the elevator had been brief, and there was no evidence that A., with whom Lydia was not living at the time of trial, had been coaching Lydia throughout the trial. The defense extensively examined Lydia, Y., A., and other witnesses at trial. Lydia was not asked at trial whether A. had ever struck or physically abused her. There was ample evidence at trial that A. had used physical discipline or punishment on her children and directed them to lie to a social worker.
“A motion for mistrial is directed to the sound discretion of the trial court. [The Supreme Court has] explained that ‘[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ (People v. Haskett (1982) 30 Cal.3d 841, 854.)” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986 (Jenkins).) “ ‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court’s ruling denying a mistrial.’ [Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 990.)
“Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ Lisenba v. California, 314 U.S. 219, 236 (1941).” (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872; see Lisenba v. California, supra, 314 U.S. at pp. 236-237 (Lisenba) [a trial is fundamentally unfair “when a coerced confession is used as a means of obtaining a verdict of guilt”].)
The appellate record does not establish that the brief instance of attempted coaching in the elevator corrupted the truth-finding process of trial by inducing false testimony or testimony leaving a false impression of a material fact as to the charged crimes. (Cf. Napue v. Illinois (1959) 360 U.S. 264, 265, 272; Alcorta v. Texas (1957) 355 U.S. 28, 31.) The trial court allowed the defense to fully cross-examine the witnesses and to present plenty of evidence in support of its theory of the case. While the elevator exchange had impacted the ability of the two jurors overhearing it to impartially evaluate the evidence, the court removed them from the jury.
“A criminal defendant ‘has a constitutional right to a trial by unbiased, impartial jurors. [Citations.]’ [Citation.]” (People v. Weatherton (2014) 59 Cal.4th 589, 598.) “[A] juror’s ‘receipt of information about a party or the case that was not part of the evidence received at trial’ . . . is ‘misconduct’ that raises a presumption of prejudice (People v. Nesler (1997) 16 Cal.4th 561, 578), even if that receipt was passive or involuntary (In re Hamilton (1999) 20 Cal.4th 273, 294-295).” (People v. Cowan (2010) 50 Cal.4th 401, 507.)
“ ‘The requirement that a jury’s verdict “must be based upon the evidence developed at the trial” goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. . . . [¶] In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.’ (Turner v. Louisiana (1965) 379 U.S. 466, 472-473, citations and fn. omitted.) As the United States Supreme Court has explained: ‘Due process means a jury capable and willing to decide the case solely on the evidence before it . . . .’ [Citations.]” (People v. Nesler, supra, 16 Cal.4th at p. 578 (lead opn. of George, C.J.).)
In Jenkins, the Supreme Court determined that the trial court had not abused its discretion in denying a mistrial motion. It stated: “The prospective jurors directly implicated in the rumors regarding threats against the court did not serve on defendant’s jury, and the remaining jurors, when questioned, gave no indication that they had heard the rumors or that their impartiality was impaired. The court admonished each juror not to discuss the case with the others and instructed the jury to decide the case upon the facts presented at trial and not based upon any other source.” (Jenkins, supra, 22 Cal.4th at p. 986.) The Supreme Court concluded that “[t]he record demonstrate[d] the absence of any incurable prejudice of the sort that would require the granting of a motion for mistrial,” and, for that reason, it “reject[ed] [the] defendant’s contentions that the trial court erred in denying his motion for mistrial and thereby impaired his right to due process of law or to an impartial jury.” (Ibid.)
In ruling on the motion for mistrial, the trial court could consider the brevity of the elevator exchange, A.’s direction to Lydia not to say that A. beat her, and the evidence adduced at trial. The court’s removal of the two jurors who had overheard the exchange from the jury preserved its impartiality. Under the deferential abuse-of-discretion standard of review, we conclude that the trial court did not abuse its discretion by finding that defendant’s chances of receiving a fair trial had not been irreparably damaged and there was no incurable prejudice and by denying defendant’s motion for a mistrial. In addition, insofar as defendant is now asserting that denial of the motion for mistrial violated his rights to a fair trial and confrontation of witnesses, we reject the assertion.
C. Refusal to Reopen Case for Further Evidence
Defense counsel requested that the case be reopened for further evidence from the two former jurors about the overheard exchange, even though the case already had been submitted to the jury. The request was based on defendant’s constitutional rights to a fair trial and to confront witnesses under the United States and California Constitutions. The prosecutor pointed out that, for the most part, the former jurors had not heard A.’s guidance to Lydia. The court denied the request.
“[S]ection 1093 sets out the general order in which a trial should proceed . . . .” (People v. Smith (2008) 168 Cal.App.4th 7, 15.) “Under section 1094, the court may depart from the usual order of trial set forth in section 1093 ‘for good reasons, and in the sound discretion of the Court.’ (§ 1094.)” (Ibid.) “Courts have interpreted sections 1093 and 1094 as giving a trial court ‘broad discretion to order a case reopened and allow the introduction of additional evidence [citations].’ (People v. Goss (1992) 7 Cal.App.4th 702, 706 . . . .)” (People v. Riley (2010) 185 Cal.App.4th 754, 764.)
“A ‘motion to reopen [is] one addressed to the [trial] court’s sound discretion.’ (People v. McNeal (2009) 46 Cal.4th 1183, 1202.) In determining whether an abuse of discretion occurred, the reviewing court considers four factors: ‘ “(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.” ’ (People v. Jones (2003) 30 Cal.4th 1084, 1110.)” (People v. Homick (2012) 55 Cal.4th 816, 881.)
In this case, the matter had already been submitted for decision to the jury and it was deliberating when defense counsel asked the court to reopen the case to permit the presentation of the evidence of coaching. It cannot be said defense counsel failed to exercise reasonable diligence to discover that new evidence. The proffered testimony of the former jurors was relevant for impeachment, but, given their familiarity with those former jurors and the timing of the new evidence, the remaining jurors could potentially accord the new evidence undue emphasis if the case were reopened. Defendant already had presented evidence in support of the defense theory that mother could be a controlling and abusive parent who told her children what to say and directed them to lie. There was also evidence that Lydia thought her mother could be scary and that A. generally considered Lydia to be a compliant child. On the other hand, there was no evidence that during the exchange in the elevator, A. and Y. had urged Lydia to testify falsely about defendant’s kissing her with his tongue. Under the circumstances, the trial court’s denial of the motion to reopen was not an abuse of discretion.
Neither did the ruling deprive defendant of due process. An accused “has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (Washington v. Texas (1967) 388 U.S. 14, 19.) “In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Chambers v. Mississippi (1973) 410 U.S. 284, 302.) But “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. [Citations.]” (United States v. Scheffer (1998) 523 U.S. 303, 308, fn. omitted (Scheffer).)
“A defendant’s interest in presenting [relevant] evidence may thus ‘ “bow to accommodate other legitimate interests in the criminal trial process.” ’ [Citations.] As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ [Citations.]” (Scheffer, supra, 523 U.S. at p. 308.) Defendant has not established that the trial court’s refusal to reopen the case was an abuse of discretion, deprived him of his due process right to present a defense, or rendered the trial fundamentally unfair.
In addition, defendant has not convinced us that the denial of the motion to reopen contravened his constitutional right to confront adverse witnesses. “[T]he right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. [Citations.] . . . Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. [Citation.] In short, the Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Citations.]” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52-53 (plur. opn. of Powell, J.).) In this instance, the defense had the opportunity to fully cross-examine A., Y., and Lydia. The court did not interfere with defendant’s right of cross-examination.
Moreover, even assuming arguendo that the court’s denial of defendant’s motion to reopen the case to present impeachment evidence was an abuse of discretion, we review it under the standard of Watson, supra, 46 Cal.2d at p. 836 because defendant was not deprived of the right to present a defense or the right to cross-examine adverse witnesses at trial. (See People v. McNeal supra, 46 Cal.4th at pp. 1202-1203; see also People v. Jones, supra, 30 Cal.4th at p. 1117; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) As to count 4, the new evidence did not show that A. and Y. were prompting Lydia to lie about defendant’s misconduct on August 27, 2014. Lydia consistently maintained that defendant kissed her on the mouth and stuck his tongue inside her mouth on August 27, 2014. She told her mother and grandfather so shortly after it happened on August 27, 2014. She told Detective Nasser so when he privately interviewed her soon thereafter. And she so testified under oath on January 12, 2015 and at trial.
Based upon our examination of the record, including all the evidence, we conclude that it is not reasonably probable that defendant would have achieved a more favorable result as to count 4 if the court had granted the motion to reopen the case for presentation of further defense evidence. (See Watson, supra, 46 Cal.2d at pp. 836 [“[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”], 837 [the test is “based upon reasonable probabilities rather than upon mere possibilities”].) As to the remaining charges on which the jury found defendant not guilty, any error in failing to reopen the evidence was harmless under any standard.
C. Motion for a New Trial
Defendant unsuccessfully moved for a new trial, based in part on written declarations from the two former jurors who had overheard the elevator conversation between A., Y., and Lydia. At that time, he did not argue that denial of the motion for a new trial would violate his rights to confrontation and due process.
A trial court may grant a motion for a new trial “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” (§ 1181, subd. 8.) “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 . . . .” (Ibid.)
“ ‘In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “ ‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’ ” [Citations.]’ (People v. Delgado (1993) 5 Cal.4th 312, 328.) ‘In addition, “the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.” [Citation.]’ (Id. at p. 329.)” (People v. Howard (2010) 51 Cal.4th 15, 43.) As a general rule, newly discovered evidence that “would tend merely to impeach a witness is not of itself sufficient ground for granting a new trial. [Citations.]” (People v. Long (1940) 15 Cal.2d 590, 607-608 (Long); see People v. Ah Noon (1897) 116 Cal. 656, 657 [newly discovered evidence tending to merely discredit prosecuting witness does not warrant the granting of a new trial].)
On appeal, “[w]e review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard. [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 526.) “A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)
Where newly discovered evidence is cumulative and does not make a different result on retrial probable, a trial court does not abuse its discretion in denying a new trial motion. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 333.) Contrariwise, “where the ‘newly discovered evidence’ contradicts the ‘strongest evidence introduced against’ defendant [citation] and comes from an unexpected source [citation], . . . defendant should have the opportunity of trying to present such evidence for the consideration of the trier of the facts.” (People v. Williams (1962) 57 Cal.2d 263, 274 275.) Thus, if affidavits “disclose a deliberate scheme to produce false evidence and to abuse and subvert the process of the court for the purpose of bringing about the conviction of an innocent man” (id. at p. 275), “[c]ourts of justice must be particularly sensitive to prevent such a criminal perversion of their proper functions.” (Ibid.)
On appeal, defendant argues that the alleged newly discovered evidence was not cumulative. He acknowledges that at trial the defense presented evidence that “on other occasions, [A.] told her children to lie to authorities.” But he asserts that “no other witnesses testified they heard [A.] instruct Lydia to lie to the court that [defendant] kissed her and put his tongue in her mouth.”
The statements of Juror Nos. 9 and 11 to the court and their declarations submitted in support of the new trial motion do not establish that A. told Lydia to lie about any fact material to the offense charged in count 4. The jurors overheard no such instruction. In her declaration, former Juror No. 9 stated that when she was in the elevator, she heard A. tell Lydia, “ ‘[D]on’t say that I hit you and only say what the attorney told you to say.’ ” She then heard, immediately before “the elevator doors opened” and she “stepped out of the elevator,” Y. said the partial sentence, “Yes, because . . . .”
Former Juror No. 11 apparently heard something similar. In her declaration, former Juror No. 11 stated that she heard A. “tell Lydia to ‘not tell them she ([A.]) hit her (Lydia) and only say what the attorney said.’ ” She did not hear Lydia’s response. Former Juror No. 11 heard Y. begin to say “something to the effect of ‘you have to say it like . . .” and then the elevator door opened. The former juror heard A. and her daughters chuckle.
In the opinion of former Juror No. 9, A. “was making sure that Lydia knew what to say in court.” In the opinion of former Juror No. 11, “Lydia had been coached in this case.”
“A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness’s testimony (Evid.Code, § 800, subd. (b)), ‘i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.’ (People v. Melton (1988) 44 Cal.3d 713, 744.)” (People v. Hinton (2006) 37 Cal.4th 839, 889.) “Such a situation may arise when a witness’s impression of what he or she observes regarding the appearance and demeanor of another rests on ‘subtle or complex interactions’ between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness’s concrete observations. [Citations.]” (People v. DeHoyos (2013) 57 Cal.4th 79, 130.) That is not the case here.
Moreover, there was plenty of evidence, and A. conceded at trial, that she had physically disciplined her children. In addition, the jury had already heard evidence that A. could be controlling of her children and that she had told her children to lie on other occasions. The proffered evidence of the elevator exchange did not show that A. had instructed Lydia to testify falsely about defendant’s kissing her on August 27, 2014 or any other occasion. As stated, Lydia unswervingly maintained that defendant had kissed her on the mouth and put his tongue inside on August 27, 2014. The trial court could reasonably conclude that the proffered evidence did not render a different result probable on a retrial of count 4. Under these circumstances, the trial court did not abuse its discretion in denying defendant’s motion for a new trial.
People v. Huskins (1966) 245 Cal.App.2d 859, a case cited by defendant, is easily distinguished. In Huskins, a father was convicted of committing a sex offense against his six-year-old daughter who was in foster care. (Id. at pp. 860-861.) There was new evidence that the foster mother, who appeared to have coached the alleged victim (id. at p. 861 & fn. 1), had suffered from paranoid schizophrenia, had been committed to the state hospital, and she had previously made unproven charges of sexual perversion against her own husband. (Id. at pp. 861-862.) The appellate court recognized that “[o]rdinarily, evidence which merely impeaches a witness is not significant enough to make a different result probable.” (Id. at p. 862.) The court found, however, that the new evidence did “more than merely impeach the main prosecution witness—it tend[ed] to destroy her testimony by raising grave doubts about her veracity and credibility.” (Id. at pp. 862-863.)
In this case, it was reasonable to conclude that the newly discovered evidence would not make a more favorable result reasonably probable. We reiterate, “[t]o warrant the granting of a new trial on the ground of newly-discovered evidence it must be such as to render a different verdict reasonably probable on a new trial. [Citations.]” (Long, supra, 15 Cal.2d at p. 608.)
Since the trial court did not err in denying defendant’s motion for a new trial, we necessarily reject his corollary claim that the denial violated his rights to confrontation and due process. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [“[R]ejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well.”]; see also Partida, supra, 37 Cal.4th at pp. 438-439.)
DISPOSITION
The judgment is affirmed.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
MIHARA, J.



_______________________________
GROVER, J.












People v. Paco
H043100