P. v. Maldonado

Filed 6/11/10 P. v. Maldonado CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Reversed.

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Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Abel Augie Maldonado of one count of selling cocaine. The trial court sentenced him to 24 years in prison. Maldonado appeals from the judgment of conviction, sentence, and certain postconviction orders, including the order denying his motion for new trial based on newly discovered evidence. We conclude that the trial court abused its discretion by denying the new trial motion.

BACKGROUND

The information charged Maldonado with one count of sale or transportation of a controlled substance, cocaine, in violation of Health and Safety Code section 11352, subdivision (a).^[1] It further alleged that Maldonado had served five prior prison terms, and had not thereafter remained free of prison custody and felony convictions for five years, within the meaning of Penal Code section 667.5, subdivision (b). The information also alleged pursuant to section 11370.2, subdivision (a), that Maldonado had three prior felony convictions for violating section 11352. In addition, it alleged that he had a prior conviction for committing a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).

Maldonado pleaded not guilty and denied the allegations. A jury found him guilty as charged.

Maldonado filed both a new trial motion based on newly discovered evidence and a motion under People v. Romero (1996) 13 Cal.4th 497, to strike the prior serious or violent felony conviction. The court heard and denied both motions and, after a bench trial on the prior conviction allegations, found the allegations true. The court sentenced Maldonado to 24 years in state prison, calculated as follows: the upper term of 5 years, doubled to 10 years because of the prior serious or violent felony conviction, plus 3 years for each of the 3 prior convictions for violating section 11352, plus 1 year for each of the 5 prior prison terms under Penal Code section 667.5. Maldonado timely appealed.

The evidence introduced at trial showed that at approximately 7:20 p.m. on October 30, 2007, Los Angeles police officer Porfirio Montejano was part of a narcotics task force making drug buys. Montejano, dressed in plain clothes, encountered Maldonado in the triangle where Parthenia Street and Parthenia Place meet. Montejano testified that he asked Maldonado where he could buy or get a 20[,] which is street vernacular for $20 worth of narcotics. Maldonado asked Montejano if he was a cop, and Montejano said that he was not and that he was on probation. Maldonado then asked in Spanish whether Montejano wanted a big 20, and Montejano said that he did. Maldonado then instructed Montejano to put the $20 on the ground. After Montejano complied, Maldonado gestured toward a white solid wafer that he had placed on a nearby retaining wall. Maldonado picked up the money, hopped over the retaining wall, and walked north toward Memory Park; Montejano picked up the wafer, walked west along Parthenia Street, and lost sight of Maldonado. Montejano next saw Maldonado after he had been detained by uniformed officers in a marked police car. Maldonado was detained on the same triangle of land where the transaction took place. There was no one else on the end of that island at that time. Officers searched for the buy money but never found it. Laboratory tests revealed that the white solid wafer obtained by Montejano contained cocaine base.

Officer David Hayden, another member of the narcotics task force, also testified for the prosecution. Hayden was acting as a cover officer to observe what happens and also for Officer Montejanos protection. Hayden observed the entire encounter between Montejano and Maldonado and never lost sight of Maldonado as he separated from Montejano, walked north, and was detained.

The defense rested without presenting any evidence.

DISCUSSION

Maldonado argues that the trial court abused its discretion by denying his new trial motion. (See People v. Williams (1988) 45 Cal.3d 1268, 1318 [rulings on new trial motions are reviewed for abuse of discretion].) We agree.

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.)

Maldonados new trial motion was based on declarations from Maldonado and an individual named Marco Antonio Ziga Ordonez. The declarations stated that Ordonez, not Maldonado, was the seller in the charged cocaine transaction, but Maldonado had not been able to call Ordonez to testify at trial because he did not then know Ordonezs name or whereabouts. According to the declarations, Maldonado and Ordonez met for the first time shortly before the cocaine transaction and then went [their] separate ways. But after Maldonado was convicted, they happened to meet again when they were incarcerated at the same location, and Ordonezs conscience led him to make the declaration admitting his guilt because Maldonado was found guilty for this crime that he did not commit. In his declaration, executed under penalty of perjury, Ordonez confessed to the crime of which Maldonado was convicted.

After describing the standard for ruling on a new trial motion, including the relevance of credibility for determining whether it is probable that the newly discovered evidence would lead to a more favorable result for the defendant upon retrial, the trial court denied the motion, explaining its reasoning as follows: Based upon the evidence I have before me, which [is] the declarations of the defendant and this declaration of this person Ordonez, I find this is probably one of the most amazing coincidences that I have ever heard in history that the actual seller of the drug and the defendant would meet each other in county jail. I find that to be amazing. In fact, I find it to be incredible, and I mean incredible in every sense of the word. This is a lie. I do not accept it. And the motion for a new trial is denied.

Maldonados newly discovered evidenceOrdonezs confession in the form of his declarationon its face satisfies four of the five requirements for granting a new trial motion. The evidence is newly discovered. It is not cumulative. It could not with reasonable diligence have been discovered and produced at trial. And it consists of the best evidence for the facts at issue.

The only remaining issue is the probability that the evidence would lead to a more favorable result for the defendant upon retrial. The trial court apparently determined that a more favorable result is not probable, because Maldonados chance meeting with Ordonez in jail was a most amazing coincidence so the evidence was not credible. We conclude that it was an abuse of discretion to deny the motion on that basis.

Contrary to the trial courts assertion, the evidence introduced in support of the new trial motion does not reflect a most amazing coincidence sufficient to justify denying Maldonados motion. If the statements in Maldonados and Ordonezs declarations are true, Ordonez was selling drugs at the location where Maldonado was detained. It is not implausibly coincidental that, because of his involvement in street-level drug dealing at the same location, Ordonez would eventually be arrested for some crime and would be incarcerated in the same facility as Maldonado. In any event, strange coincidences do sometimes happen. (Cf. People v. Taylor (1966) 239 Cal.App.2d 367, 368.)

On the one hand, the evidence introduced against Maldonado at trial appeared to be strongtwo police officers who were eyewitnesses identified him as the seller, and one of them claimed that he never lost sight of Maldonado from the time of the sale until Maldonado was detained. On the other hand, both officers admitted that the buy money was never recovered, and neither officer gave any explanation of how Maldonado could have disposed of the money given that Hayden never lost sight of him and he was detained so soon after making the sale. The absence of the buy money gives rise to a reasonable inference that the wrong person was detained. Both officers testified that there was no one else in the area at the time of the drug transaction and detention, but that evidence cuts both waysit tends to show that Maldonado could not have been apprehended by mistake (because he was the only one in the area), but it also makes the absence of the money that much harder to harmonize with his being the seller.

We recognize that it is entirely possible that Maldonado and Ordonezs version of events is fabricated. Cross-examination of either of them, or other material evidence, might well destroy their credibility. But the evidence introduced at trial was not so overwhelming, and the declarations on their face were not so most amazing[ly] implausible, as to make it improbable that the newly discovered evidence would lead to a more favorable result upon retrial. On this record, it was an abuse of discretion to deny the new trial motion and thereby prevent Maldonado from presenting this evidence to a jury.

Our resolution of this issue makes it unnecessary for us to address the remaining arguments raised by the parties.

DISPOSITION

The superior courts order denying Maldonados motion for new trial is reversed, and the superior court is directed to enter a new and different order granting Maldonados motion for new trial.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

CHANEY, J.

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^[1] All subsequent statutory references are to the Health and Safety Code unless otherwise indicated.