Filed 9/7/16 P. v. Regaldo-Godoy CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Appellant,
                                                                     A144357
v.
FRANCISCO REGALADO-GODOY,                                            (Sonoma County
                                                                     Super. Ct. No. SCR-646697)
         Defendant and Respondent.


         The Sonoma County District Attorney timely appeals from the trial court’s order
granting defendant Regalado-Godoy’s motion for a new trial based on newly discovered
evidence. (Pen. Code, § 1238, subd. (a)(3).)1 We affirm the trial court’s order granting a
new trial on counts 1 and 4, charging attempted kidnapping (§§ 664/207) and battery on a
person with whom the defendant was in a dating relationship. (§243, subd. (e)(1).) We
reverse the court’s order and remand to the trial court for further proceedings on count 3,
residential burglary. (§§ 459/460.)
                                       STATEMENT OF THE CASE
         On April 25, 2014, an information was filed in Sonoma County charging
Francisco Regalado-Godoy with attempted kidnapping (count 1), making criminal threats
(count 2), burglary of a residence occupied by Jane Doe (count 3), and misdemeanor
battery against Jane Doe, a person with whom he was in a dating relationship (count 4),


         1
             Unless otherwise indicated, all further statutory references are to the Penal Code.
on December 31, 2013. (§§ 664/207, subd. (a); 422; 459/460; 243, subd. (e)(1).)
Defendant, who remained in custody, pleaded not guilty and did not waive time for trial.
On May 28, 2014, the district attorney filed a first amended information in all respects
identical with the original information except it alleged the residence was occupied by
Maria Sanchez and Rafael Enriquez.
       On June 3, 2014, defendant waived time to July 3, 2014, plus 30 days. On
June 30, 2014, defense counsel moved for a continuance, citing investigative needs.
Defendant stated he was unwilling to waive time, the motion was denied, and jury trial
was confirmed for July 3, 2014. However, on July 3 the court found good cause to
continue and defendant agreed to waive time to August 15, plus 10 days.
       Jury selection commenced August 18, 2014, but on September 11, 2014, that jury
panel was discharged and a second panel of jurors was called. A jury was sworn to try
the cause on September 16, 2014.
       The jury returned its verdicts on September 22, 2014. With respect to the
attempted kidnapping and battery counts, the jury initially returned guilty verdicts on
both the greater and lesser included offenses. The court ordered the jury to correct the
verdict forms to accurately reflect its intentions. After a recess, the jury found defendant
guilty of attempted kidnapping, residential burglary, and battery. The jury also found the
burglary to be a violent felony in that a person other than an accomplice was present in
the residence during the burglary. (§ 667.5, subd. (c).) The jury found defendant not
guilty of making criminal threats. The jury was polled and confirmed its verdicts.
       On November 26, 2014, defendant filed a motion for a new trial based on newly
discovered evidence. The motion was heard and granted on February 4, 2015. This
timely appeal by the district attorney follows.




                                             2
                                  STATEMENT OF FACTS
        Jane Doe is defendant’s former girlfriend. They were “going out together” for six
months, but she was only “in a relationship with him” for the first two months; the rest of
the time they were “just friends.” They were no longer dating on December 31, 2013.
        A little before 6:00 a.m. on December 31, 2013, Doe was walking to her apartment
from a hotel at which she had spent the night, due to threats she had received the day
before. Defendant called her and they talked for two or three minutes. When she first
noticed defendant, he was in his car. Two of his cars were parked near her apartment.
One was a Saturn and the other was a Corvette, which was parked across the street from
her apartment.
        Defendant “came out from near [her] apartment and fell upon [her] with blows and
no longer allowed [her] to say anything.” Defendant pulled her from the end of the
driveway near the mailboxes to the spot where the Corvette was parked. The entire time
she was being dragged against her will to the Corvette she was so frightened she could
not talk. Defendant had his hands on her neck and in her hair the entire time and was
threatening her with death. He tried to force her to get into the Corvette. At that point
she started screaming for help.
        Doe’s neighbor Maria, whom she did not know at the time, told defendant from
the window in her apartment to let Doe go; Maria said she was going to call the police.
Defendant then let go of Doe. Doe saw defendant get into the Corvette and drive to the
left.
        Doe ran to the laundry room. Defendant ran towards her, but Maria rescued Doe
from the laundry room before defendant was able to get to her. Maria and Doe ran up the
stairs to Maria’s apartment with defendant following behind them.
        They were unable to shut the door on defendant because he broke the door’s
locking mechanism. Maria called for Rafael, who also tried to close the door. Despite



                                             3
their joint effort, defendant “was able to come into the apartment.” According to Doe, by
the time Rafael came to the door, defendant “was already inside.”
       While Doe cried, Rafael told defendant he should leave. Rafael, Maria, and
defendant were speaking to each other in loud voices. Defendant did not touch her while
she was in the apartment. He made no physical contact with Rafael. After about eight
minutes, defendant left. After he left, Maria and Rafael called the police.
       Doe spent seven hours at the hospital. She had a lot of inflammation in her neck,
tachycardia, and a cut on her lip inside her mouth. She felt a lot of fear and could not
breathe.
       Both of defendant’s cars were still in the vicinity of the apartments when Doe
spoke with police. She showed the police the vehicles’ location.2 The Corvette’s rear
window was broken and the tires were slashed and flat.
       On cross-examination, Doe gave conflicting accounts of prior assaults by
defendant and others. She testified that on December 4 or 5, 2013, defendant took her to
his house, threatened her with a knife and a firearm, and would not let her leave until
9:00 a.m. the next morning. On December 5, 6, or 7, 2013, Doe went to the police
department on Sonoma Avenue in Santa Rosa to report that four men stopped her near
her house, pointed a gun at her and got into her car. However, she made that up because
she was afraid of defendant, but afterwards told them the truth. Upon further
questioning, Doe testified she gave the two statements on different days. In the first
report she told them about defendant, and then later she told them about the four men.




       2
         Sonoma County Deputy Sheriff Gossett testified Doe pointed out a blue Saturn
parked on the street parallel to the curb on Kenton Court in front of her residence. It was
unlocked, and smelled of alcohol, with the keys in the ignition and the driver’s seat in a
reclined position with the headrest in the back seat. A black Corvette with a broken front
windshield was parked in the parking area of the residence.

                                             4
She forgave defendant after the incident on the December 5, but not after the incident on
December 31.3
       In May 2013, Doe called the police to come to her house; she asked them for a
restraining order against her husband. When the police told her there was not enough
information to arrest her husband, she said he pushed her. After speaking with both Doe
and her husband, the police arrested her and her husband ended up getting a restraining
order against her. As a result of her arrest, deportation proceedings were initiated. She
got an attorney, posted bond, and was released. Her daughter was placed in foster care
on December 6 after she made the report about the four men. She told police her
daughter was in the back seat when the men got in the car.
       Doe’s immigration case was still pending on December 31. Doe understood that
the conditions of a U-Visa were satisfied as long as she was a victim of domestic
violence, had not done anything wrong in the United States, and cooperated with the
prosecution of the domestic violence. A U-Visa would make the possibility of
deportation go away. If she were deported while her daughter was in foster care, she did
not know when she would see her daughter again.
       Doe applied for a U-Visa after December 31. She thought she could get one
because of her husband’s domestic violence against her. However, that backfired when
she was unfairly arrested for domestic violence instead of him.
       Doe did not know Maria Sanchez before December 31. Afterwards, she met
Maria in a Safeway parking lot. She asked Maria to write a reference letter for her
immigration case, and a letter to her therapist about what happened on December 31.
Since the incident, the two were speaking more often, though not about the incident.



       3
         Doe told Sonoma County Deputy Sheriff Gossett she had not seen defendant
since November 16 when he assaulted her on December 31. She did not mention an
incident on December 4 to him.

                                             5
       Maria Sanchez corroborated much of Doe’s testimony, although she also
contradicted Doe on some details. Sanchez testified she was living with her then
boyfriend, Rafael Enriquez, and her four children on December 31, 2013. Very early in
the morning, about 4:00 or 5:00 a.m. while it was still dark, she was awakened by “some
yells, very, very loud.” She looked out the window; the lady was screaming, “Let me go,
let me go, I’m not getting in your car.” Defendant was force-walking Doe towards a
black Corvette with a broken side window. Sanchez said she saw both defendant’s hands
around the woman’s throat, as well as in her hair. Sanchez told the man to let the woman
go or she would call the police. Sanchez did not see defendant punch Doe in the face, nor
did she recall telling the police that she did, although she might have said that because
she was so upset and afraid. She heard the car start; by the time Sanchez got downstairs
to help Doe, the car was gone.
       Sanchez asked Doe if she wanted to come to her apartment. Doe said she did.
Then Sanchez saw defendant coming through the laundry room, following them. He was
running and very angry.
       Defendant tried to grab Doe as he ran behind them, telling Doe to come with him,
he was going to take her away. When they reached the apartment, they tried to keep
defendant out of the apartment, but they were unable to close the door on him. He was
pushing the door open from his side and broke the lock.
       Sanchez told him to “go away, get out” but defendant “didn’t want to do that. He
wanted to take the girl. He [said], ‘I’m going to take her.’ ” Doe begged, “[D]on’t let
him take me, I don’t want to go, I’m afraid, he told me he was going to kill me.” Sanchez
yelled for Rafael to come help them.
       Rafael tried to talk defendant into calming down. Defendant grabbed Doe by the
elbow. Sanchez told her 14-year-old daughter to call 911. Defendant said, “No, I’m
going to go ahead and to call the police.” He was in the apartment for seven to 10
minutes. Defendant drove away in the black car after the police were called. Sanchez

                                             6
did not actually see that the car had a broken window; Doe told her while they were
waiting for the police that defendant wanted to force her into the car through the broken
window.
       Sanchez did not know Doe before this incident. In January, Sanchez moved out of
the apartment. She and Doe called each other. Later, Sanchez went to Doe’s apartment,
but she was not home. They eventually met in the Safeway parking lot and Sanchez
wrote a reference letter for Doe’s visa application, which was based on defendant’s
conduct and her ex-husband’s. Sanchez testified: “I felt her pain as if it was my own
pain because I had a similar experience. And I did not have anyone to support me. So
when I saw this woman alone I remembered. [¶] . . . [¶] And I felt as if I was the one
that was going through what she was going through.”
       Rafael Enriquez confirmed Sanchez’s testimony about their living situation on
December 31 and at the time of trial. He corroborated he was awakened while it was still
dark by someone coming into the apartment. Maria and Doe were pushing at the front
door. Defendant was outside, “forcing at the door.” Enriquez told defendant to stop, but
he broke the door and the lock and forced his way in.
       Enriquez did not know defendant or the girl. The girl was very frightened.
Defendant did not touch Doe while Enriquez was there. Once defendant got inside the
apartment, the two men struggled, because defendant “wanted to get at her.” Defendant
indicated he was going to call the police and seemed to be talking into a telephone.
Enriquez called the police at the same time. Defendant finally left after about 10
minutes.
       Enriquez knew Doe lived across the street, but never learned exactly where she
lived, and he has not spoken to her since this incident occurred, except to exchange
greetings at court proceedings.




                                            7
Defense Case
       On May 19, 2013, Santa Rosa police officer Marlee Wellington responded to a
dispatch about a verbal argument reported by Doe. Officer Wellington arrested Doe.
       On December 7, 2013, Santa Rosa police officer Todd Robert took a detailed
report from Doe about suspects who had gotten into her car and made threats towards her
and her husband on December 2, 2013. She did not mention anything about being
kidnapped overnight and threatened with a gun and a knife on December 5.
       On December 31, 2013, Deputy Gossett asked Sonoma County Sheriff’s Deputy
Ager to attempt to locate a report by Doe of a possible kidnapping or threats made to her.
He located one such report regarding four unknown suspects dated November 16, 2013.
There were no other reports. Deputy Ager also interviewed Maria Sanchez. She told him
she saw defendant strike Doe in the face several times with his fist. Deputy Ager took
photographs of Doe. He did not observe any visible injuries to Doe.
The Motion for a New Trial
       Defendant’s motion was based on the declarations of public defender investigator
Carlos Carrera and two of defendant’s friends, Francisco Quintero and Wilson
Hernandez.
       Quintero averred he has known defendant for a few years and considered him a
friend. On December 30, 2013, he, defendant, Wilson Hernandez, Wilson’s girlfriend,
and a friend of Wilson’s girlfriend, were at a friend’s house. Everyone spent the night at
the friend’s house except him. Early in the morning on December 31, defendant called
him to say he needed help moving his Corvette, which had been vandalized. Quintero
reluctantly agreed to help, because he had to be at work at 8:00 a.m. He picked up
defendant at the friend’s house. Defendant asked Wilson to come along in defendant’s
Saturn. When they arrived at Kenton Court where the Corvette was parked, Quintero saw
the car had broken windows and got out of the car to assess the damage. Wilson then
arrived in the Saturn, parked on the street and said he would be dozing in the back seat.

                                             8
They decided the Corvette needed to be towed and Quintero used his phone to Google the
phone numbers of potential tow companies.
       At that point, a woman approached them from the direction of an apartment
building. She spoke to defendant, and began to say something about him having photos
of another woman on his phone. “[T]he woman began to raise her voice and make a
scene.”
       Quintero “urgently” told defendant they needed to leave. The woman said she
would call the police if they left. This made Quintero even more anxious to leave
because he did not want to deal with police. Quintero went to where Wilson was sitting
in the Saturn and told him they needed to leave. Wilson got out of the Saturn and they all
left in Quintero’s vehicle. Quintero recalled Wilson said he left the keys to the Saturn in
the ignition. Quintero never saw defendant touch or threaten the woman.
       Later, he became aware that defendant was arrested, but he had no idea the arrest
related to the events of December 31, 2014. During part of the summer of 2014,
Quintero was outside Sonoma County and had unreliable cell phone reception. He did
recall receiving a message from Carlos Carrera; however, he did not know what it was
about and was too scared to return the call.
       Wilson Hernandez averred he has known defendant for seven years and
considered him a friend. He was under the impression that defendant was dating a
woman named Doe and had briefly observed them interact on three occasions. On
December 30, 2013, he was at a friend’s house with his girlfriend, Quintero and
defendant. Quintero left at about 2:00 a.m. He returned later that morning to help
defendant deal with his vandalized Corvette. Defendant went with Quintero in
Quintero’s van and Hernandez went with his girlfriend in defendant’s Saturn. They
drove in separate cars because Quintero had to go to work afterwards.
       Hernandez dropped off his girlfriend and then drove to Kenton Court, where
defendant’s Corvette was located at some apartments. Defendant and Quintero were

                                               9
already there talking outside Quintero’s van. Hernandez was very tired and got into the
back seat of the Saturn to rest while other two dealt with the Corvette. Several minutes
later, Quintero knocked urgently on the Saturn’s window and said they needed to leave
right away. Hernandez got out of the Saturn and “saw that [Doe] was yelling something
as she grabbed onto Mr. Regalado-Godoy. He broke free of her grasp and went to where
I was standing and said we needed to leave because [Doe] said she was calling the
police.” They got into Quintero’s van and left. In his haste, Hernandez inadvertently left
the keys to the Saturn in the ignition.
         Defendant “never struck [Doe].” On the contrary, it appeared that Doe was
aggressively grabbing onto defendant, and defendant was trying to break free of her
grasp.
         Carrera averred that in July 2014 he received a handwritten list of potential
witnesses, including Quintero and Hernandez, and began the process of trying to contact
them all. He had telephone numbers for the two men. He left a message for Quintero,
asking for a return call, but he did not receive a call back. The number for Hernandez
was not in service.
         Carrera subsequently developed information that Quintero might be living at an
address in Santa Rosa, and went to that address on September 16; no one was home. He
left a card but received no response. On August 18, 19, and 20, Carrera attempted to
obtain current contact information for Hernandez through mutual acquaintances of
defendant and Hernandez, but his efforts proved unsuccessful.
         After defendant’s trial ended, Carrera learned that Quintero may have been out of
the area during the time Carrera was attempting to contact him. On October 18, he left a
message for Quintero asking for a call back.
         On October 20, Carrera received information about a current contact number for
Hernandez. He called that number the same day and spoke with Hernandez. They
agreed to meet on October 22, but Hernandez did not show up.

                                              10
       The next day, October 23, Quintero called Carrera back and informed him that he
(Quintero) was living in Lake County. Carrera conducted a phone interview at that time
and interviewed Quintero in person in Lake County on November 4, 2014. Carrera
interviewed Hernandez in person on November 10, 2014.
                                      DISCUSSION
The Standard of Review
       The district attorney argues the trial court committed reversible error by granting
defendant a new trial on grounds of newly discovered evidence. A defendant may seek 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,
par. 8.) “The standard of review of an order denying a motion for a new trial based on
newly discovered evidence was established by this court in 1887: ‘To entitle a party to a
new trial on the ground of newly discovered evidence, it must appear,—“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. Martinez (1984) 36 Cal.3d 816, 821 (Martinez).) “The
granting or denial of a motion for a new trial on the ground of newly discovered evidence
is a matter within the sound discretion of the trial court, and in determining whether there
has been a proper exercise of discretion on such motion, each case must be judged from
its own factual background.” (People v. Hill (1969) 70 Cal.2d 678, 698; accord, People
v. Dyer (1988) 45 Cal.3d 26, 52 (Dyer); Martinez, at p. 821).)
       The district attorney argues we should review the trial court’s order granting a new
trial on the ground of newly discovered evidence de novo, rather than apply an abuse of
discretion standard, because such motions are said to be “disfavored.” (People v. Byrne
(1911) 160 Cal. 217 (Byrne).) According to the district attorney, new trial motions based

                                             11
on newly discovered evidence contradict the public policy in favor of finalizing litigation.
However, it also could be said that the grant of a new trial on any basis undermines that
policy. The district attorney also argues that granting a new trial for newly discovered
evidence provides criminal defendants a disincentive to produce all their evidence at one
trial. Nevertheless, both criminal defendants and disappointed civil litigants may seek a
new trial “on specified grounds affecting the fairness of the prior proceedings,” including
newly discovered evidence. (People v. Ault (2004) 33 Cal.4th 1250 (Ault), § 1260, Code
Civ. Proc., § 657, par. 4.)
       The due diligence requirement, common to both civil and criminal new trial
motions, protects against abuses. Moreover, as the Byrne court recognized, “When due
diligence on the part of defendant to produce at the trial all evidence in his favor has been
shown, the trial judge is still called upon, in the exercise of a wise discretion, to
determine the weight to be given to the evidence produced upon the motion for a new
trial, the truth of the matters shown thereby, and the materiality and probability of the
effect of them if believed to be true.” (Byrne, supra, 160 Cal. at p. 226.)
       “[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.” (Ault, supra, 33 Cal.4th at p. 1263.) Although the new trial order at issue in Ault
involved juror misconduct (id. at p. 1272), the court did not limit its holding or
observations to that basis alone. The Ault court observed: “A trial court’s finding of
prejudice is based, to a significant extent, on ‘ “first-hand observations made in open
court,” ’ which that court itself is best positioned to interpret. [Citations.] Thus, where
the effect of the ruling below is simply that the case will be retried free of the error or
misconduct that infected the original proceeding, we may conclude that ‘ “the concerns of

                                              12
judicial administration tip in favor of the trial court” ’ [citation] and suggest a deferential
standard of appellate review.” (Ault, at pp. 1267–1268.) In any event, as noted above,
the Supreme Court in Hill, supra, 70 Cal.2d at page 698, Dyer, supra, 45 Cal.3d at page
52, and Martinez, supra, 36 Cal.3d at page 821, all cases involving newly discovered
evidence, indicate an abuse of discretion standard is to be applied to all applications for a
new trial made on this ground, irrespective of the outcome. Even if we were persuaded
by the district attorney’s argument, which we are not, as an intermediate appellate court
we are bound by our Supreme Court’s determination that the trial court’s grant of a
motion for a new trial under section 1181 is governed by an abuse of discretion standard.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Due Diligence
       The trial court found Carrera’s declaration established both that due diligence was
exercised to locate the witnesses and that the evidence was newly discovered. The court
accepted Carrera’s representation that defendant “clearly provided the information to his
defense attorney and to the investigator with regard to the contact names and telephone
numbers,” and that Carrera undertook all reasonable steps to contact the witnesses but
met with “roadblocks.” Because the leads Carrera was given turned out to be dead ends,
the court believed a continuance would not have cured the problem, given that Carrera
“had exhausted his attempts at location based on the only information that Mr. Regalado-
Godoy had for them at that time.” Further, the fact that defendant “was in custody for
this entire period of time” adequately explained why defendant was not “having contact
with them or staying in touch with them so that he would have received from them any
new or different contact information.” Upon Carrera finally making contact with these
witnesses, it was apparent to the court that the witnesses had new evidence to produce.
       The district attorney argues the trial court erred in finding due diligence. She does
not maintain that Carerra’s investigative efforts were lackluster. Indeed, Carerra’s
continued efforts and eventual success in finding Quintero and Hernandez attest to his

                                              13
diligence. Instead, the district attorney argues defendant failed to use “reasonable
diligence to discover and produce Quintero and Hernandez for trial,” noting that close to
five months elapsed from indictment until defendant provided his attorney with the
witnesses’s names and phone numbers, and the witnesses were defendant’s good friends.
We disagree.
       Defendant was not formally charged with the crimes he was accused of
committing on December 31, 2013, until three months later when, on March 4, 2014, a
complaint was filed. He appeared in custody for arraignment on that date. He was not
arraigned on a first amended information until May 28, 2014. At that time, defendant
entered into a limited time waiver to July 3, 2014, plus 30 days. The trial court was
entitled to infer from the charging delay and defendant’s custodial status that defendant
gave his attorney what contact information he had for his witnesses in a timely fashion,
since his attorney gave the contact information to investigator Carrera in July 2014, as
soon as it appeared trial was imminent. The court was not unreasonable in concluding
that defendant’s ongoing custody impeded his ability to contact his potential witnesses or
otherwise obtain updated information about their whereabouts and phone numbers.
       Furthermore, since defendant remained in custody, time was of the essence to him.
On May 28 he waived time until July 3, plus 30 days, but when defense counsel moved
for a continuance on June 30, citing investigative needs unrelated to Hernandez and
Quintero, defendant refused to waive any more time, and trial was confirmed for July 3.
When, on July 3, the court found good cause to continue, defendant agreed to waive time
only until August 15, plus 10 days. Thus, substantial evidence in the record supports the
trial court’s conclusion a continuance would not have changed the situation, given that
investigator Carerra was operating within a short time frame and had exhausted his leads.
In our view, substantial evidence supports the trial court’s due diligence finding and no
abuse of discretion is shown.



                                            14
Probability of a Different Outcome
       The district attorney argues the trial court erred in finding that Quintero’s and
Hernandez’s testimony would have made a different, i.e., more favorable, result probable.
(People v. Soojian (2010) 190 Cal.App.4th 491, 519.) In this context, “a hung jury is
considered a more favorable result than a guilty verdict.” (Id. at p. 520.) Thus, “when a
defendant makes a motion for a new trial based on newly 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.” (Id. at p. 521.)
       The district attorney argues that the witnesses’ testimony would not have made
any difference because Doe’s, Sanchez’s and Enriquez’s testimony independently
established the elements of the charged offenses and, since Sanchez and Enriquez were
strangers to Doe, neither had had any discernible motive to fabricate their testimony.
Moreover, she asserts defendant did not “attack Maria’s or Rafael’s credibility at trial.”
She further argues Hernandez’s declaration could not have undermined the prosecution
witnesses’s accounts because he was asleep during the better part of the incident and,
while Quintero’s declaration did contradict the victim, neither man mentioned Maria or
Raphael, and both were long-time friends of defendant.
       The trial court found: “[T]his case is essentially a case about credibility. The
People’s case that was put on was [rife] with inconsistent statements by the People’s
witnesses, and in the event that the defense as put forth by the defendant, and the
declarations that have been submitted, directly contradict that version of events. And
given that we had three witnesses testify at the time of trial, all who gave very differing
scenarios about what occurred. And also the named victim in the matter, her own
credibility issues, I think were there another scenario presented that there is a probability
of a different outcome in this case.”



                                              15
       With respect to the attempted kidnapping and battery counts, we see no abuse of
discretion. Quintero’s and Hernandez’s declarations both contradicted critical aspects of
Doe’s and Sanchez’s versions of the events and presented a plausible alternative
explanation of the evidence about the confrontation on the street. Both Quintero and
Hernandez heard Doe yelling at defendant and making a scene. Sanchez was awakened
by the sound of Doe’s loud voice. According to Quintero and Hernandez, the trio left the
scene in a hurry in Quintero’s vehicle and (according to Hernandez) left the Corvette
parked “on Kenton Court at some apartments.” According to Sanchez, defendant had
already left the scene before she went down into the street. Deputy Gossett testified the
Corvette was parked in the parking area of the residence, and the Saturn was parked on
the street, unlocked, with the keys in the ignition, and the driver’s seat in a reclined
position with the headrest in the back seat. Deputy Ager took photographs of Doe’s
neck, but did not observe any visible injuries. None are visible in the pictures included in
the appellate record, except a possible mark on the inside of Doe’s upper lip.
       On the other hand, as the trial court observed, the credibility of Doe and Sanchez
was severely tested by the defense. Sanchez gave conflicting testimony about where she
claimed to see defendant’s hands. Although she testified she saw the black Corvette with
a broken side window, she later admitted she never saw the broken window on the
Corvette but heard about it from Doe while waiting for the police to arrive. She testified
she saw defendant drive away in the black car after the police were called. However, the
police located the black Corvette at the scene. According to Deputy Ager, she told him
defendant beat Doe about the face with his fists. Sanchez testified she never saw that, but
admitted she might have said she had in the excitement of the moment. Finally, although
Sanchez did not know Doe before the incident, it was obvious from her testimony she
later befriended Doe and felt solidarity with her as a fellow victim of domestic violence.
       Doe’s credibility was likewise challenged. She admitted lying to the police about
a made-up incident in which four assailants entered her car and threatened her life and

                                              16
her husband’s. She said she reported another instance of domestic violence by defendant
in early December, but no such report was ever found. Finally, defense counsel’s cross-
examination also exposed a powerful motive on Doe’s part to invent or hyperbolize
domestic violence reports against her husband and defendant in order to normalize her
immigration status and regain custody of her daughter. In the case of her husband, the
presumably false report of domestic violence backfired and she had been arrested instead.
Under these circumstances, we cannot say the trial court abused its discretion in
concluding it was reasonably probable at least one juror would conclude there was a
yelling match on the street between defendant and Doe, which Sanchez did hear, but
defendant did not batter or attempt to drag Doe into his Corvette against her will at that
time.
        However, the trial court’s statement of reasons fails to explain how the Hernandez
and Quintero declarations contradicted the evidence on the burglary count, or why
Enriquez’s testimony suffered from the same credibility problems that plagued Sanchez
and Doe. Quintero’s and Hernandez’s proposed testimony extended only to what
happened on the street. Neither witness offered any testimony about what happened after
they drove off in Quintero’s van. The declarations did not exclude the possibility that
defendant was dropped off a short distance away, only to double back to the apartment in
time to harass Doe near the laundry room and in the Sanchez/Enriquez apartment.
Nothing in the declarations contradicted or explained that evidence or exposed a gap in
the prosecution’s case. Accepting there were discrepancies between the Sanchez, Doe,
and Enriquez versions of exactly what happened in the apartment, Enriquez’s testimony,
standing alone, established that defendant literally broke into his apartment in order to
take Doe outside against her will. Photographs admitted at trial showed the damage to
the door and lock. Although defense counsel questioned Enriquez about asserted
discrepancies between his statement to the police and his testimony, counsel did not
succeed in shaking Enriquez’s testimony concerning the core elements of the offense, or

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in showing that the discrepancies, if any, were material. Nor did counsel bring in a police
officer to impeach Enriquez’s testimony, as he did with Sanchez and Doe.
       Moreover, the evidence did not suggest Enriquez had a motive to lie or a bias
toward Doe. Enriquez testified he did not know Doe before the December 31 incident,
and was merely on cordial terms with her at the time of trial. No evidence undermined
that testimony. Neither did the evidence show Enriquez was particularly close to
Sanchez at the time of trial. She had moved out of the apartment shortly after the
incident on December 31.
       The trial court’s factual findings, express or implied, made on a motion for a new
trial will be upheld if supported by substantial evidence. (People v. Drake (1992)
6 Cal.App.4th 92, 97.) In this case, the trial court’s conclusion that the Hernandez and
Quintero declarations would probably lead to a better outcome on the burglary charge is
not self-evident, and the trial court’s stated reasons do not help us pinpoint the facts in the
record supportive of the trial court’s conclusion. (See People v. Taylor (1993)
19 Cal.App.4th 836, 848 [court’s statement failed to articulate basis for conclusion that
insufficient credible evidence supported the verdict; grant of new trial vacated].) A trial
court has the power to grant a new trial as to some but not all of the counts charged in the
accusatory pleading. (People v. Drake, at p. 99.) We find the trial court’s ruling in favor
of a new trial on the burglary count is not supported by substantial evidence, and reverse
the court’s order insofar as it grants a new trial on the burglary count. As to the
attempted kidnapping and battery counts, the court’s order granting a new trial is
affirmed.
                                      DISPOSITION
       The judgment (order granting a new trial) on count 3, burglary, is reversed and the
court is ordered to reinstate the verdict. In all other respects the order granting a new trial
is affirmed.



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                                 _________________________
                                 DONDERO, J.


We concur:


_________________________
MARGULIES, Acting P. J.


_________________________
BANKE, J.




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A144357




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