Filed 10/2/17 P. v. Veasley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed.

Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Deandre Jamaal Veasley grabbed two rifles from his grandfather’s house intending to take them. His grandfather tried to stop him but defendant pushed passed him and with the help of his girlfriend put the rifles in their car and drove away. One of the missing rifles was clearly identified by defendant’s grandfather; he was unable to positively identify the second rifle but was certain defendant took two rifles.

On June 16, 2014, defendant was found guilty of one count of second degree robbery (Pen. Code, § 211; count 1)[1] and two counts of grand theft of a firearm (§ 487, subd. (d)(2); counts 2 & 3). Defendant admitted he had suffered one prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served one prior prison term (§ 667.5, subd. (b)). He was sentenced to seven years to be served in state prison.

Defendant makes one claim on appeal that the trial court erred by refusing to grant his motion for new trial based on newly discovered evidence that one of the rifles, reported to be missing after defendant left, and which he claims was identified as the second rifle that was taken, was found in Michael’s garage after trial. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On March 19, 2014, Michael Peterson lived on Fairview Avenue in Yermo. He was retired but had owned a gun business. He mostly repaired guns or added parts to guns for himself and his customers. At one time, he owned 20 to 30 guns. On March 19, 2014, he estimated he had approximately 12 guns in his residence but did not keep a detailed inventory.

Defendant was Michael’s[2] grandson. Defendant had been living with Michael for approximately six months. Defendant and Michael got along well at first. However, defendant brought his girlfriend, Holly Patricia Garrett, to live with them. About two weeks prior to March 19, Michael made defendant and Garrett move out because Michael did not like how defendant treated Garrett.

On March 19, in the morning, both defendant and Garrett returned to the house. They told Michael they were tired and hungry. Michael allowed them to sleep and gave them something to eat. That evening, Michael wanted them to leave but it was apparent they were not planning to leave. Michael told them they had to leave. Defendant got mad and asked why he was being kicked out. Michael told him he did not like his attitude.

Defendant told Michael he had spoken with Denis Peterson, who was Michael’s younger brother. Defendant insisted that Denis told him terrible things about Michael. Michael had possession of some of Denis’s guns. Defendant claimed he was going to take the guns and return them to Denis. Michael told defendant he was not taking the guns.

Michael picked up his cell phone and tried to call 911 but defendant hit the phone out of his hands. Defendant threatened him that he had guns and knives outside in his car. Michael walked to the landline in the house. Michael tried to call 911 but defendant took the phone from him.

Michael went to his neighbor’s house, which belonged to his son-in-law, John Sherwood. When Michael arrived next door, he told Sherwood to call the police because he was having trouble with defendant. Michael walked back to the front of his house to see what defendant and Garrett were doing.

Defendant came out the front door. He was carrying two rifle cases. One of the rifle cases had M14 written on it; Michael clearly knew that a M1A rifle was in the case. The gun had been shot once while Michael had it but otherwise it was always kept in the M14 case. Michael could not recall the color of the case the second rifle was in; he was not “a hundred percent positive” that he knew what the second rifle was. He never saw the rifle inside the second case.

Michael told defendant he was not taking the guns and defendant pushed him out of the way. Michael threw the guns over a fence. Garrett was on the other side. Michael told Garrett not to pick up the guns. Defendant told her, “Go pick up the guns.” She ignored Michael and put the guns in their car. Defendant and Garrett drove off.

Michael guessed that the second gun was a Russian Mosin rifle, which belonged to Sherwood, because it was missing from his residence after defendant left with the two rifles. Michael still had no idea at the time of trial the identity of the second gun.

San Bernardino County Sheriff’s Deputy Cody Korkostaskis responded to Michael’s residence at about 6:20 p.m. He spoke with Michael. Michael told him the Russian rifle was missing.

Sherwood’s family owned three guns, one of which was the Russian rifle. The Russian rifle was at Michael’s house being fixed. It had been at Michael’s house for several years. The Russian rifle was kept in a cloth, camouflage case.

The afternoon of March 19, Michael knocked on Sherwood’s door and told him to call the police. Sherwood followed Michael back to his house. He observed defendant walk out of Michael’s house with two gun cases and throw them over the fence. One of the cases was yellow and had M14 written on it. The other case was black; it was also a soft case. Garrett put them in their car.[3] Defendant got in the car and they drove away.

Sherwood came over and tried to help Michael inventory his guns to determine which rifle was in the second, black case. Sherwood indicated they determined that a M1 .30-caliber military version carbine (carbine) was missing in addition to the Russian rifle. The Russian rifle was still missing at the time of trial. Sherwood never saw the guns that were in the cases carried by defendant. Sherwood estimated that Michael had 20 guns in his house. Sherwood denied that he ever told a sheriff’s deputy that the missing rifle in the M14 case was a M16 assault rifle. Sherwood believed there were three firearms missing from Michael’s house. There was no inventory list kept by Michael.

DISCUSSION

Defendant’s sole contention on appeal is that the trial court abused its discretion by denying his motion for new trial based on newly discovered evidence; specifically, that Michael located the Russian rifle in his garage after trial. Defendant insists that the jury would have found him not guilty on count 3, if the evidence that the Russian rifle was never taken was presented to the jury because the prosecution’s evidence showed that the Russian rifle was probably the second rifle and the new evidence contradicted the proposition that the Russian rifle was taken.

A. ADDITIONAL FACTS

Defendant filed his motion for new trial on January 12, 2016 (Motion). Defendant contended that at trial, it was clear the first gun stolen was the rifle in the M14 case. As for the second weapon, it was believed by Michael to be the Russian rifle but he was not sure. After the trial, an investigator hired by the defense interviewed Michael and he disclosed that the Russian rifle was found by him in the residence. Defense counsel contended that the finding of the gun exonerated defendant of the second grand theft of a gun conviction. Further, defendant insisted that Michael’s testimony about the inventory of the guns was not accurate.

The People filed opposition to the Motion. The People argued that Michael had testified at trial that he was positive defendant and Garrett left that day with two guns. He was certain one of the guns was an assault rifle kept in the case with M14 on the side. He was unsure as to the identity of the second gun. Sherwood had testified at trial that he helped Michael inventory the guns with a deputy sheriff. They determined that the carbine and the gun in the M14 case were missing. These were in addition to the Russian rifle that was missing from the residence. Sherwood indicated there were at least three guns missing from the residence. The prosecutor never argued to the jury that the second gun was the Russian rifle. Defendant misstated the trial testimony in the Motion. The trial evidence was that the second gun was the carbine.

The transcript of a call between Michael and the defense investigator was submitted with the opposition to the Motion. Michael stated, “There are still 2 guns that were taken out of the house. Of those 2 guns, the closest I can come to identifying one of them, for sure, is that it was in a case, and the case was designated as . . . a M1A assault rifle. . . . The other one to the best of my ability, we figured was a R-Russian Mosin, which is not one of the World War II Russian rifles.” The Russian rifle belonged to Sherwood. Michael indicated that he had possession of another gun, which was a M16 belonging to Denis, that was missing.

Michael stated that he had found the Russian rifle. Michael further stated, “So what the 2nd gun was, we have absolutely at this time no idea, what it is. We still believe the other gun, the M1A is still gone. And is definitely one of the guns that he took, and it definitely belongs to Denis Peterson, which is who he said he was going to take the guns to.”

Michael’s declaration was submitted and stated, “I was mistaken as to the Russian Mosin firearm as being stolen by [defendant] as I have found that firearm. [¶] At trial I testified and believed the firearm that was taken was the Russian Mosin, but I have located that firearm. [¶] I truthfully believed that the gun that was stolen was the Russian Mosin, but I made a mistake. [¶] I am uncertain what was taken.”

The matter was heard on June 17, 2016. Michael testified. Sometime after the trial, Michael found the Russian rifle in his garage and advised the prosecution. Michael stated that at the time of trial he thought the Russian rifle was the second gun taken by defendant but could not prove it. He still was unsure of the identity of the second gun. There were still two guns missing from his residence.

Defendant’s counsel argued that defendant’s convictions in counts 2 and 3 had been based on the missing M16 in the M14 case, and the missing Russian rifle, respectively. The trial court requested that defense counsel address if the jury would have given less credibility to the inventory process if they knew the Russian rifle was found. Defense counsel argued that the inventory of the guns was not good enough to convict defendant. The prosecutor responded that at no time did he argue the second missing gun was the Russian rifle. The trial court concluded it was clear the People did not rely on the missing Russian rifle as count 3. However, the prosecutor was asked to address whether the finding of the Russian rifle would nonetheless have an impact on the verdict because it would cast some doubt on the inventory by Michael and Sherwood.

The prosecutor pointed to the testimony by Michael that he did not know for certain the identity of the second gun. The trial court inquired how it was known that there were two guns or any guns missing from the residence. The prosecutor responded that Michael and Sherwood testified they saw defendant carrying out two guns. Defendant told Garrett to put the “guns” in the car. Sherwood’s testimony would be bolstered by the evidence that the Russian rifle was found; the missing guns were the one in the M14 case and the carbine.

The trial court found the evidence was newly discovered; it was not cumulative evidence; and the evidence could not have been found by defendant exercising due diligence. The trial court found the only issue was whether the new evidence rose to the level that it was reasonable and probable that had it been introduced, it would result in a different verdict.

The trial court first noted, “[A]nd we all know that there’s a general principle, that there should be an end to litigation. That being said, it’s in case law that a motion for new trial based on newly discovered evidence is uniformly looked upon with disfavor. And that’s to protect the integrity of the jury system, to have a finality to litigation. And we can always go out and continue to look for new evidence. [¶] n order for there [to be] a new trial, the evidence, the newly discovered evidence should contradict the strongest evidence introduced against the defendant. . . . Put another way, I phrased it, ‘Would evidence of a faulty inventory system likely produced a different result?’ Because that was the relevance of the newly discovered evidence is that it is evidence of a faulty inventory system.”

A defendant may move for a new trial based on newly discovered evidence. ([i]People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) “‘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.’”’” (People v. Howard (2010) 51 Cal.4th 15, 43 (Howard); see also § 1181, subd. (8).)

“‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.’ [Citation.] ‘“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.”’” (People v. Thompson (2010) 49 Cal.4th 79, 140.) “[T]he weight of modern California authority is that the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if the reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. [Citations.] In particular, the traditional rule is that the reviewing court will not substitute its judgment for the trial court’s determination that error was prejudicial, and thus warrants a new trial.” (People v. Ault (2004) 33 Cal.4th 1250, 1263.)

Initially, defendant complains that the trial court in stating that there was a well-established principle that litigation must come to an end and that motions for new trial are looked upon in disfavor, shows it was “motivated by a preference not to entertain the motion.” We disagree. The trial court inquired extensively into the reasons for the new trial motion. It cited the factors to be considered in addressing a motion for new trial on the ground of newly discovered evidence and sought specific argument from both defense counsel and the prosecutor. The trial court was merely repeating oft-cited case law that motions for new trial based on newly discovered evidence are looked upon with disfavor. (People v. Greenwood (1957) 47 Cal.2d 819, 821; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151; People v. Shoals (1992) 8 Cal.App.4th 475, 485.)

The trial court properly denied the Motion on its merits. Here, the only factor to be decided was whether such newly discovered evidence was such as to render a different result on a retrial of the cause. (Howard, supra, 51 Cal.4th at p. 43.) Here, there is no doubt that one of the rifles taken was the rifle in the M14 case. However, the strongest evidence was not that the Russian rifle was in the second case; rather, as argued by the prosecutor, it was the carbine rifle. At no time did Michael testify at trial that the Russian rifle was the second rifle. He repeatedly acknowledged he never saw the second rifle. Michael advised Deputy Korkostaskis that the Russian rifle was missing. However, he never could identify the second rifle as the Russian rifle.

In contrast, Sherwood testified that the Russian rifle and the carbine rifle were missing from the residence. He indicated the second case carried by defendant was black and that the Russian rifle was kept in a camouflage case. The evidence established the second gun was the carbine and the prosecutor argued in closing that the second rifle was the carbine, specifically referring to the testimony that the Russian rifle was kept in the camouflage case. As such, introduction of evidence that the Russian rifle was not taken would not have resulted in a more favorable result to defendant.

This is true even if we were to consider how the newly discovered evidence would have impacted the jury’s view of the credibility of the inventory by Sherwood and Michael. The evidence showed that two rifles were taken by defendant. Defendant carried out two cases and told Garret to pick up the “guns” when he threw them over the wall. Even if it was presented to the jurors that the Russian rifle in fact was not taken from Michael’s residence, such newly discovered evidence would not have rendered a different result on a retrial of the cause as they would have determined another rifle had been taken from the residence. (Howard, supra, 51 Cal.4th at p. 43.) The Motion was properly denied.

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.