P. v. Muhammad
Filed 8/1/12 P. v. Muhammad CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JEREMIAH MUHAMMAD,
Defendant and
Appellant.
F062576
(Super.
Ct. No. F10903279)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. Mark Wood
Snauffer, Judge.
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa
Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant and appellant, Jeremiah Muhammad,
claims the trial court abused its discretion when it denied his
discovered evidence. (Pen. Code,
§ 1181, subd. (8).) He also argues
he is entitled to one more day of conduct credit. (Pen. Code, § 2933.1.) We find no abuse of discretion and affirm the
trial court’s order denying defendant’s motion for new trial. We grant, however, defendant’s request for
one additional day of conduct credit.
FACTS AND PROCEDURAL HISTORY
Mary Thompson testified that at
approximately 11:40 p.m.
on June 25, 2010,
she was asleep on the sofa at her house.
Mary recently had had surgery to remove one of her intestines and had
taken a pain pill earlier in the evening.
husband had gone to the store. Because
Mary had trouble getting up and down, her husband told her that he would not
lock the front door. Mary testified her
security door and wooden door were both closed and it was dark inside the
house. Mary heard a knock on the door,
which she did not respond to. She heard
the security door open and then the wooden door being kicked open. Defendant entered the house and closed the
door behind him. Mary asked him, “Why
you kick my door open and come in I
didn’t tell you to come in my house.”
Defendant told Mary she did not tell him what to do. Defendant told her to get off the sofa. When she did not, defendant moved toward her,
grabbed her clothing in the area of her collar, pulled her up, and took her in
the direction of the dining room. Mary was
in pain and was scared. In the dining
room, defendant told her, “I’m hungry. You fix me something to eat.” She told him she did not have hot water. Defendant responded, “Well, I’m hungry. I don’t know how you going to fix it.… [I]f you’re moving … I’ll stab your bitch
ass.” Mary noticed a towel in
defendant’s left hand. She noticed the
towel was covering a knife and testified that she felt her life was going to
end. Defendant hit Mary. Defendant said he had some noodles in his
pocket. She told him they could go
across the street to her neighbor who could “fix it.” Mary testified that she made this statement
because it was a way she could escape.
Mary recognized defendant. She testified that she knew him because his
mother used to live on her block. He was
not a child when she knew him, he was over 18.
She testified that she did not know him “that well”; she never invited
him over to her house, she never cooked food for him, and she had not “[sat]
and talk[ed] or [had] coffee with him.”
She did not invite him over on June 25, 2010, and did not give him permission to come
into her home.
Once outside, defendant stood close
behind Mary with the knife by his side.
He again told her, “If you try anything … I’m going to stab your bitch
ass.” Mary testified that he told her
this twice while they were inside the house and once outside. Mary saw Alex Ceballos, who lived across the
street, and told defendant, “[M]y neighbor right here will fix the noodles for
you.” Mary and defendant walked to
Ceballos’s yard. Ceballos stood up on
the porch and Mary told him that defendant had a knife in his hand. Ceballos told her to come up on his porch,
which she did. Ceballos picked up a
brick from the ground, exchanged words with defendant and defendant ran
away. Mary then heard glass
breaking. The sound came from the area
of her back window.
Ceballos testified that he had known Mary for about 20 years and that
she lived in the house across the street.
He testified that, on June 25, around 11:45 p.m., he was sitting on his front porch. He heard glass breaking and some yelling
coming from the back of Mary’s house across the street. Ceballos saw a man. The man said he was going to “stick that
bitch.” Ceballos called the police. He reported that he saw a large,
African-American male, who seemed drunk, breaking windows at his neighbor’s
house. He did not go over to the yard
because the man was large and appeared “yoked up.”
Ceballos testified he saw the man go in Mary’s front door. About five minutes later, he saw Mary cross
the street to his house with an African-American man that he described as “a
big guy.” The man was walking behind
Mary and she appeared to be scared. The
man said he was going to “stick her.”
Ceballos saw something shiny in defendant’s hands, but was uncertain if
it was a pair of scissors or a knife.
Ceballos picked up a brick. The
man left, going toward the empty lot located by Mary’s house, and then went
toward the Sahara Motel.
The police arrived and Mary and Ceballos told Officer Escareno and
Officer Marquez what happened. Escareno
provided updates to assisting patrol units that a male, who was possibly armed,
had gone to the Sahara Motel. After
receiving an update from another officer, Escareno and Marquez told Ceballos
and Mary they would be back and took off running to the Sahara Motel. At the Sahara Motel, they saw defendant
handcuffed and face down on the floor.
Approximately a foot away from defendant’s left shoulder, was a towel
with a knife under it. When Escareno
arrested defendant, he detected a strong odor of alcohol on him. Escareno then obtained statements from Mary
and Ceballos, who were at their individual residences. Once back at her house, Mary noticed a glass
window was broken, but did not provide the police with this information.
On July 26, 2010, the district attorney charged defendant in
count 1, assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); in
count 2, kidnapping (Pen. Code, § 207, subd. (a)); in count 3, making a
criminal threat (Pen. Code, § 422); in count 4, false imprisonment by
violence (Pen. Code, § 236); and in count 5, first degree residential
burglary while a person who was not an accomplice was present (Pen. Code,
§§ 459, 460, subd. (a), 667.5, subd. (c)(21)). The information further alleged that as to
counts 2 through 5, defendant personally used a deadly and dangerous weapon, a
knife. (Pen. Code, § 12022, subd.
(b)(1).) On August 5, 2010, defendant pled not guilty to all
counts. On December 20, 2010, a jury found defendant guilty as charged in
counts 1, 3, 4, and 5 and not guilty as charged in count 2. The jury found true that defendant was
personally armed with a deadly and dangerous weapon as to the commission of the
crimes as charged in counts 3, 4 and 5.
On April 22, 2011, defendant filed a
discovered evidence. (Pen. Code,
§ 1181, subd. (8).) The evidence
was of a declaration from Terrell Thompson, Mary’s son, which stated, among
other things, that defendant used to stay at the Thompson residence when he was
younger and that, on June 25, 2010, the day the crimes were committed,
defendant spent the morning and afternoon “hanging out” on the Thompsons’ front
porch. Terrell declared that defendant
wanted to drink alcohol and had gone to the store to buy some, that no one
wanted to stay at the house and drink with defendant, and that he (Terrell)
left the house around sunset.
On May 20, 2011, defendant’s motion for new trial was
denied. The trial court found that a
different result was not probable on retrial because Terrell did not witness
the events that took place that evening and his testimony merely impeached
Mary’s testimony on the “narrow issue” as to whether defendant was an invited
guest. Defendant was then sentenced to
five years in prison. He received 378
days of custody credit; 330 for days actually served and 48 days of statutory
credit pursuant to Penal Code section 2933.1.
A motion for new trial may be granted pursuant to Penal Code section
1181, subdivision (8), “[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.” (Ibid.) “‘“‘The
determination of a motion for a new trial rests so completely within the
court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.’” [Citations.]
“‘[I]n determining whether there has been a proper exercise of
discretion on such motion, each case must be judged from its own factual
background.’” [Citation.]’ [¶]
‘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. Howard (2010) 51 Cal.4th 15, 42-43.)
“[W]hen a defendant makes a
discovered evidence, he has met his burden of establishing that a different
result is probable on retrial of the case if he has established that it is
probable that at least one juror would have voted to find him not guilty had
the new evidence been presented.” (
trial should be granted when the newly discovered evidence contradicts the
strongest evidence introduced against the defendant.” (People
v. Martinez (1984) 36 Cal.3d 816,
823.)
Defendant
contends that the trial court abused its discretion in denying his motion for
new trial on the grounds that a different result would not be probable on
retrial. Defendant states that Terrell’s
declaration contradicts the strongest evidence introduced against him, Mary’s
testimony, particularly as to the burglary charge.
Mary testified
that she knew defendant when his mother lived on her block. When she knew defendant, he was not a child
but was over 18 years of age. She did
not know defendant well. She had never
invited him over to the house and she did not invite him over on June 25, or
give him permission to come into her house.
Terrell’s declaration states that defendant used to stay at the Thompson
residence when he was younger and, on June 25, had spent the morning and
afternoon on the Thompson porch.
Defendant argues that from this evidence one or more jurors could have
had a reasonable doubt as to whether defendant entered the home with the intent
to commit a felony. (Pen. Code, § 459.)
First, the
degree to which Terrell’s declaration contradicts Mary’s testimony is minimal
at best. Second, the jury had other
evidence to conclude that defendant entered the Thompson residence with the
intent to assault Mary: Ceballos heard
glass breaking and some yelling from the back of Mary’s house. He saw defendant and heard him say, before he
entered the house, that he was going to “stick that bitch.” Third, Terrell’s declaration states that he
(Terrell) left the house around sunset that day. These events did not take place until about
11:45 p.m. Therefore, even if Terrell
were to testify that defendant stayed at the Thompson residence when he was
younger and was present earlier in the day on the front porch, Terrell was not
present when the events took place and his declaration did not impeach his
mother’s or Ceballos’s testimony as to defendant’s actions.
Defendant
argues that the information in Terrell’s declaration could establish how much
he had to drink, which is relevant to whether defendant formed the specific
intent necessary for burglary and for making a criminal threat. (Pen. Code, § 22.)
At
trial, Escareno testified that he smelled a strong odor of alcohol on defendant
and Ceballos told the 911 operator that defendant seemed to be drunk. The jury was instructed they could consider
defendant’s voluntary intoxication in determining whether he intended the
statement he made to be understood as a criminal threat and in determining
whether he entered the house with the intent to commit a felony assault or
theft. Terrell’s declaration does not
add anything to the issue of defendant’s intoxication that was not already
presented at trial: “That afternoon, [defendant]
wanted to drink alcohol and chill with me and my brother. [Defendant] even went to the store and bought
some alcohol. [Defendant] was excited to
hang out, but no one wanted to stay and drink with him.” Contrary to what defendant argues, the declaration
is “cumulative merely” on the issue of defendant’s intoxication, which was
established by Escareno’s testimony and by the information Ceballos provided to
the 911 operator, and which was considered by the jury. (People
v. Howard, supra, 51
Cal.4th at p. 43.)
Defendant
argues that Terrell’s declaration impeaches Mary’s testimony concerning her
knowledge of defendant and whether she had invited him to her home earlier that
day. Again, the actual discrepancy
between the information in the declaration and Mary’s testimony is less than
persuasive. Additionally, “‘[a] new trial on the ground of newly
not granted where the only value of the newly
testimony is as impeaching evidence’ or to contradict
a witness of the opposing party.” (People
v. Hall (2010) 187 Cal.App.4th 282, 299, quoting Hanton v. Pacific Electric Ry. Co. (1918) 178 Cal. 616, 623.) Defendant cites People v. Martinez, supra,
36 Cal.3d 816, arguing that “impeachment of the main prosecution witness has
been considered sufficient to warrant a new trial.” In Martinez,
the defendant was convicted of second
degree burglary. The only evidence
the prosecution had connecting the defendant to the theft of a drill press was
the maintenance man’s testimony that the drill press was painted just hours
before the burglary and the defendant’s palm print was found on it
afterwards. (Id. at pp. 819-820, 822.)
Prior to the burglary, the defendant had been a frequent visitor to the
location of the drill press and had several opportunities to handle it. The newly discovered evidence consisted of
the foreman’s statement that the drill press had actually been painted sometime
within the two weeks preceding the burglary.
(Id. at p. 820.) In reversing the denial of a motion for new
trial, the Supreme Court stated, “A plausible, innocent explanation for
defendant’s palm print on the drill press would expose a serious gap in the
prosecution’s proof.” (
In this case,
even if Terrell’s declaration impeached Mary’s testimony about the degree to
which she knew defendant and about whether he had been at her house earlier
that day, such impeachment does not create a “serious gap in the prosecution’s
proof” as to whether defendant entered Mary’s home and threatened to stab her: Mary’s testimony in this regard was fully
corroborated by Ceballos, and the new evidence does not purport to impeach
Ceballos in any way.
Defendant
also cites People v. Williams (1962)
57 Cal.2d 263 and states it is similar to the present case because “one witness
provided the sole evidence of defendant’s guilt.” In Williams,
the newly discovered evidence refuted the main witness’s “story in its
entirety.” (Id. at p. 271.) However,
Terrell’s declaration does not refute Mary’s “story in its entirety,” but on
the “narrow issue” of whether defendant was an invited guest, as the trial
judge found. Further, Mary’s testimony
was not the “sole evidence of defendant’s guilt,” as her testimony was
corroborated by Ceballos.
On
these facts, we cannot say the court abused its broad discretion when it denied
defendant’s motion for new trial.
Defendant
also contends that he is entitled to one more day of conduct credit and the
People agree. Defendant received 378 days of custody
credit; 330 for days actually served and 48 days of statutory credit pursuant
to Penal Code section 2933.1. Under Penal Code section 2933.1, any person convicted of
a violent felony is not permitted to accrue more than 15 percent of worktime
credit. Defendant was convicted of a
violent felony, first degree burglary.
(§§ 459, 460, subd. (a), 667.5, subd. (c)(21).) Defendant states that because 15 percent
of 330 is 49.5, he should have been entitled to 49 days of conduct credit, not
48. We agree and grant defendant one
more day of conduct credit.
DISPOSITION
The trial court is ordered to correct
the abstract of judgment to reflect an additional day of custody credit. The court is further ordered to forward the
amended abstract of judgment to the Department
of Corrections. In all other
respects, the judgment is affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Detjen, J. and Franson, J.
name="_ftn2" title="">[1] For
clarity, we will refer to Mary Thompson, and her son, Terrell Thompson, by
their first names. We intend no
disrespect by this informality. (
148 Cal.App.4th 259, 263, fn. 1.)
