Filed 10/15/14 P. v. Kerivan CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                         E059546

v.                                                                        (Super.Ct.No. RIF1101066)

JOHN MICHAEL KERIVAN III,                                                 OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Ronald L. Taylor,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

         Paul E. Zellerbach, District Attorney, Natalie M. Pitre, Deputy District Attorney

for Plaintiff and Appellant.

         Steven L. Harmon, Public Defender, Joshua Knight, Deputy Public Defender for

Defendant and Respondent.

         A jury found defendant and respondent John Michael Kerivan III guilty of failing

to update his sexual offender registration during 2011. (Pen. Code, § 290.012, subd.

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(a).)1, 2 Approximately two months after the verdict, defendant moved for a new trial on

the basis of newly discovered evidence, specifically, his 2011 registration receipt (proof

of registration card). (§ 1181, subd. (8).) The trial court granted defendant’s motion for

a new trial. On appeal, the People contend the trial court erred because (1) defendant

failed to show the receipt could not have been discovered with reasonable diligence and

produced at trial; and (2) defendant did not prove the receipt was authentic such that it

could cause a different result to be probable at a retrial. We affirm the order granting a

new trial.

                    FACTUAL AND PROCEDURAL HISTORY

       A.     TRIAL EVIDENCE

       The process of registering is as follows: The offender goes to the sheriff’s

station, a staff member gives the offender a form, the offender completes the form (8102

Form), the deputy interviews the offender, the deputy reviews the form with the

offender, the deputy ensures the offender understands the form, the deputy gives the


       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.

       2 The People assert defendant was convicted of failing to register as a sexual
offender within five days of moving to a new residence. (§ 290.013, subd. (a).)
Defendant asserts he was convicted of failing to register during the required annual
update. (§ 290.012, subd. (a).) The amended information reflects defendant was
charged in count 1 with the section 290.013 crime, and in count two with the section
290.012 offense. The April 17, 2013, minute order reflects defendant was found not
guilty on count 1, but guilty on count 2, and lists the count 2 crime as section 290.013,
subdivision (a). We infer the opening brief and the minute order contain a
typographical error, as the jury’s verdict form reflects the count 2 offense is section
290.012, subdivision (a), which comports with the amended information.


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offender a copy of the form, the information from the form is entered into a statewide

database known as the Violent Crime Information Network (VCIN), and the form goes

into a file at the sheriff’s station.

       In April 2010, Riverside County Sheriff’s Deputy Adams registered sexual

offenders at the Perris Sheriff’s Station. When Deputy Adams handled the registrations

in 2010, he entered the offenders’ information into the VCIN the same day the

offenders’ completed the forms. Defendant completed the 8102 Form in April 2009 and

2010, and they were properly filed at the Perris Sheriff’s Station.

       In 2012, Detective Rosas (Rosas) was responsible for sexual offender

registrations at the Perris Sheriff’s station. Rosas uploaded offender information to the

VCIN on a daily basis. Rosas explained that the offenders’ forms are filed in an

unlocked file cabinet, which all detectives can access. Rosas and a community service

officer were responsible for filing the forms in the filing cabinet. Prior to testifying in

court, Rosas looked in defendant’s file for a 2011 registration form, but did not find a

2011 form. Rosas did not look through the rest of the files in the filing cabinet to

determine if defendant’s 2011 form had been misfiled.

       Riverside County Probation Officer Roberts (Roberts) was part of the Sexual

Assault Felony Enforcement Taskforce (SAFE) from 2009 to 2012. In April 2010,

Roberts went to defendant’s registered address, which was on Homeland Avenue, but

defendant was not there. In February 2011, Roberts returned to the same registered

address, but defendant was not there. Roberts went to the registered address a third




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time, in March 2011, and defendant was not at the address. Roberts left his business

card at the registered address, but defendant never contacted Roberts.

         In March 2011, Senior Investigator Remmers (Remmers) was assigned the task

of locating defendant. Remmers searched through various databases trying to locate

defendant, such as the National Criminal Information Network (NCIC) and out-of-state

sex offender registries. Nothing indicated defendant had registered outside of

California. Remmers found a February 21, 2011, incident report, in the Sheriff’s

database, involving defendant. The incident occurred at an address on Northwinds

Drive.

         In March 2011, Remmers went to the Northwinds residence, but defendant was

not there. That same day, Remmers went to the Homeland address, but defendant was

not there either. Remmers wrote a report and submitted it to the district attorney’s

office for possible prosecution. Remmers never located defendant. Defendant was

arrested in January 2012. Detective Velardes was responsible for sexual offender

registrations at the Perris Sheriff’s Station in 2011. Detective Velardes did not testify at

defendant’s trial.

         During closing arguments, the prosecutor asserted defendant was guilty of failing

to register in 2011 because (1) defendant’s registration was not in the California

database; (2) defendant’s 8102 Form from 2011 was not in defendant’s file at the

sheriff’s station; (3) defendant was not registered out of state; and (4) defendant was not

incarcerated in 2011. Defendant’s trial counsel argued that the sheriff’s deputies

“messed up in their recordkeeping process.” Defense counsel asserted, “It’s reasonable


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that somebody made a mistake and that [defendant’s] information didn’t make it into

the database,” i.e., defendant’s form was misplaced by the deputy before defendant’s

information was entered into the database.

       In count 1, defendant was charged with failing to register after he moved

residences. (§ 290.013, subd. (a).) The jury found defendant not guilty on count 1. In

count 2, defendant was charged with failing to update his registration as he was required

to do on an annual basis. (§ 290.012, subd. (a).) The jury found defendant guilty on

count 2. The jury delivered its verdict on April 17, 2013.

       B.     MOTION FOR NEW TRIAL

       On June 24, 2013, defendant filed a motion for new trial. The motion reflected

that on May 10, 2013, the public defender’s office received an envelope from K.

Harmon at an address on Northwinds Drive containing “a state of California registration

receipt (a proof of registration card) indicating that [defendant], updated his registration

on March 30, 2011. The deputy’s name listed on the card is Deputy Velardez (Badge

#2544).” Although referred to as a “receipt,” the item was more in the nature of an

identification card; it listed defendant’s name, defendant’s address, defendant’s date of

birth, the registering law enforcement agency, the date of registration, the registering

officer’s name and badge number, and included defendant’s thumbprint.

       An investigator from the public defender’s office contacted Detective Velardez

(Velardez). The investigator showed defendant’s receipt to Velardez. Velardez said the

receipt was “consistent” with the receipts issued to registrants and that “he issued the

registration receipt to [defendant] on March 30, 2011, because his name and badge


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number [are] on the receipt.” The investigator also contacted Katrina Harmon

(Harmon), who explained she was packing defendant’s belongings to store them when

she found the receipt “folded up ‘into a little square.’” When asked, Harmon said the

receipt was not forged.

       In the motion, defense counsel asserted the receipt evidence was relevant to show

the sheriff’s missing paperwork was due to human error, rather than defendant’s failure

to register. Defendant asserted the guilty verdict at his trial likely would have been

different if the jury had been shown the 2011 registration receipt because defendant’s

argument would have been “significantly bolstered.” Defense counsel further asserted

the registration could not have been discovered earlier using reasonable diligence

because defendant “cannot be expected to conduct a search of every possible location

where this receipt ended up.” Defense counsel explained that approximately one year

had passed from the time the receipt was issued to the time charges were filed, and

defendant had already registered again in 2012, so there was no need for defendant to

still have the 2011 registration card in his possession. Defense counsel assumed the

card had been thrown away, since defendant could not locate it at the time of trial.

       C.     OPPOSITION

       The prosecution opposed the motion. The prosecutor asserted Velardez told the

prosecutor that defendant’s receipt “was like the ones given out when he registered sex

offenders; however, [Velardez] needed to verify [it] at the Perris station in order to

determine whether he actually gave the defendant a receipt from that date.”




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       The prosecution argued the evidence was not newly discovered because the

receipt had been in defendant’s possession since 2011. Therefore, defendant was on

notice that he needed to look for the receipt when charges were filed. Thus, the

prosecutor asserted defendant failed to show reasonable diligence. Further, the

prosecution argued a different verdict might be rendered if the receipt were authentic;

however, defendant failed to show the authenticity of the receipt.

       D.     HEARING

       In July 2013, the trial court held a hearing on defendant’s motion. Prior to the

hearing, the court held a meeting in chambers where it indicated its tentative finding

was that the receipt constituted newly discovered evidence. At the hearing, the court

received defendant’s original 2011 receipt into evidence. Harmon testified at the

hearing.

       Harmon, who was defendant’s girlfriend of 10 years, explained that after

defendant was taken into custody, she assumed he would “be gone a while.” Therefore,

Harmon went to her uncle’s house where defendant’s belongings were stored, in order

to move defendant’s property to her (Harmon’s) house; Jim Burbank (Burbank) was the

name of Harmon’s uncle. The property was stored in a motor home on Burbank’s

property. Several people stored their belongings in the motor home, and Harmon did

not want other people “messing with [defendant’s] stuff.”

       Harmon explained that when she found the folded receipt, she assumed it was

another girl’s telephone number, which is why she opened it. Harmon believed

defendant did not keep his old receipts, so she never thought to look for it prior to trial.


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Harmon found the receipt in a “junk drawer with all kinds of miscellaneous stuff.”

Harmon described the motor home as messy—“Your stuff, your spot; your mess, your

problem, basically.” Defendant’s belongings were disorganized. Defendant frequently

stayed on the couch in Burbank’s house—not in the motor home. Defendant could

access the motor home when Burbank was home and the keys were available.

       After Harmon testified, the court found the receipt was newly discovered

evidence. The court then asked about the forgery issue. The prosecutor explained “the

‘1s’ on the 2011 of the date of registration are completely different from the ‘1s’

everywhere else.” The prosecutor said the font should be “the exact same,” but there

was a difference in the font on defendant’s receipt. Specifically the issues were whether

the “1s” had a line at the bottom of them or not, and the size of the font.

       The trial court explained that the prosecutor was giving argument, not evidence.

The prosecutor offered to contact the investigators to have them testify about comparing

the fonts. The trial court said it did not “see the need to continue today’s hearing.” The

prosecutor also explained that Velardez said he had never seen an offender have a

registration card but not have corresponding paperwork in the sheriff’s file or

information in the database.

       Defense counsel said she was unsure how to respond, since the prosecutor’s

statements were not evidence. Defense counsel asserted the prosecutor could present

evidence at trial to argue “whether or not this is an authentic document.” Defense

counsel said she tried to authenticate the document for the hearing by having the

investigator speak with Velardez and providing the investigator’s written statement.


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Defense counsel asserted the authenticity of the receipt “could be an issue for the jury to

decide.”

       The trial court said, “I really think that the issue [the prosecution] is raising with

respect to the authenticity of this registration receipt is something that would be raised

before the jury at a subsequent trial, and let the jury make that decision. On its face, it

appears to the Court that this is a registration receipt for [defendant’s] registration on

March 30th, 2011. [¶] So for the purposes of this hearing only, the Court is going to

find that this appears to be a legitimate registration receipt. Again, that would be

something that the jury might determine at a trial on this matter, which [the prosecution]

then would have the opportunity to present competent evidence with regard to her

argument.”

       The court concluded that if there were to be a retrial then a different result would

be probable. The trial court explained, “In fact, I don’t know that it would go to trial

because it would be an absolute defense by [defendant] to the charge that he failed to

register in 2011.” The court continued, “With respect to the issue concerning whether

or not this evidence could have been discovered earlier using reasonable diligence from

the testimony of Ms. Harmon, it doesn’t sound to the Court as if it would have been

found had there been reasonable diligence exercised.” Accordingly, the trial court

granted defendant’s motion for a new trial.

       E.     MOTION FOR RECONSIDERATION

       The prosecution filed a motion for reconsideration. The People asserted

defendant could not meet the requirements for showing reasonable diligence because


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the receipt had been in defendant’s possession since 2011 and defendant should have

known of its existence. The prosecution argued defendant’s claim should have

proceeded via a petition for writ of habeas corpus, rather than a motion for new trial.

       Defendant opposed the motion. Defendant asserted the prosecution was raising

the same arguments it raised at the motion hearing, and the prosecution did not present

new law. Therefore, defendant asserted the motion should be denied. Defendant

contended a new trial, rather than habeas corpus, was the proper remedy because new

trials can be granted on the basis of newly discovered evidence. The trial court denied

the motion for reconsideration.

                                        DISCUSSION

       A.      CONTENTION

       The People contend the trial court erred by granting defendant’s motion for new

trial because (1) defendant failed to show the receipt was newly discovered evidence

that could not have been found prior to trial with reasonable diligence; and (2) the

authenticity of the receipt is questionable and therefore defendant did not show the

probability of a different result at a retrial.

       B.      LAW

       “‘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 [is] not cumulative . . . ; 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.


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That these facts be shown by the best evidence of which the case admits.’” [Citations.]’

[Citation.]” (People v. Howard (2010) 51 Cal.4th 15, 43.)

       “‘“‘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.]’” (People v. Howard, supra,

51 Cal.4th at pp. 42-43.)

       C.     NEWLY DISCOVERED

       “Facts within the defendant’s knowledge before termination of the trial are not

newly discovered. [Citation.]” (People v. Clauson (1969) 275 Cal.App.2d 699, 705.)

In the instant case, the trial court could reasonably conclude no one knew the receipt

still existed at the time of trial. While defendant, Harmon, and defense counsel may

have known defendant received the receipt, they arguably did not know the receipt was

still in defendant’s possession. Harmon testified that she believed defendant did not

retain his registration receipts so she “never would have even thought to look for one.”

Based upon this evidence, the trial court could reasonably conclude defendant and his

trial counsel did not know, prior to the end of trial, that the receipt was in defendant’s

possession, i.e., they did not know the receipt still existed and had not been

destroyed/discarded. Accordingly, the trial court did not err by concluding the receipt

was newly discovered evidence.




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       D.     REASONABLE DILIGENCE

       We now turn to the factor of reasonable diligence. “‘Diligence is a relative term

incapable of exact definition. What would amount to due diligence under one state of

facts would fall absolutely short of it under another and different state of facts. It

depends, therefore, so essentially upon the particular circumstances of each case, with

all their distinct and varying phases and bearings, as they have appeared to the lower

court at the trial and throughout the conduct of the cause, in determining whether

diligence has been used in any particular instance, that this court should hesitate to

disturb a ruling upon this ground where it has any substance whatever upon which to

rest.” (Brannock v. Bromley (1939) 30 Cal.App.2d 516, 521; see also People v.

Williams (1962) 57 Cal.2d 263, 273 [“The term ‘diligence’ is ‘incapable of exact

definition because it is a relative term’ [citation] and the ‘diligence’ of defendant in

marshaling his evidence for the trial must be determined in the light of the ‘peculiar

circumstances’ involved. [Citation.]”].)

       It appears from the record that no one believed the receipt was in defendant’s

possession—the prosecution assumed it never existed, and the defense assumed

defendant discarded it prior to charges being filed. Accordingly, the question we face is

whether the trial court’s decision was arbitrary when it concluded defendant could not

be expected to search all of his belongings prior to trial for an item he thought was no

longer in his possession. Stated differently, because we are applying an abuse of

discretion standard of review, the question we must address is whether it is reasonable

to conclude defendant could have exercised reasonable diligence by not searching


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everything he owned. We conclude the trial court’s finding is within the bounds of

reason.

       Harmon testified that defendant had “never ever kept his old [receipts] before, so

[she] never would have even thought to look for one.” Based upon this testimony, the

trial court could infer defendant and his trial counsel also believed the receipt had been

discarded. Therefore, it would be reasonable for defendant not to search every possible

location for the receipt, since it likely had been destroyed/discarded. Further, the receipt

was located in a “junk drawer,” “it was not found among paperwork.” One may expect

defendant to have gone through his paperwork to determine if, by chance, he still had

the receipt, but searching a junk drawer in a storage area, or searching every possible

area and belonging, would be beyond what could reasonably be expected—it would be

extraordinary to conduct such a search for an item one believed did not exist. As a

result, the trial court could properly find that defendant’s failure to locate the receipt

prior to trial did not constitute a lack of reasonable diligence.

       The People contend there is “no evidence” suggesting defendant “could not have

obtained his copy of the registration card with reasonable diligence.” The People

highlight the facts that defendant (1) had the card in his possession, (2) had access to the

card before and during trial, and (3) knew he registered in 2011. The People’s argument

is not persuasive because they are ignoring Harmon’s testimony, which reflects, “And

he’s never ever kept his old [receipts] before, so I never would have even thought to

look for one . . . .”




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       The facts the People highlight are correct, but ignoring Harmon’s testimony is

problematic. As explained ante, in the particular facts of this case, one must consider

what constitutes reasonable diligence in looking for an item one believes has been

destroyed or discarded. The trial court could reasonably conclude that searching every

possession for such an item goes beyond reason. Searching a paperwork pile or file

cabinet might be within reason, but searching everything, such as a junk drawer, would

be unreasonable. Therefore, defendant’s failure to find the receipt in the junk drawer

prior to trial or during trial does not reflect a lack of reasonable diligence. As a result,

we conclude the trial court’s diligence finding is not irrational or arbitrary. (People v.

Carmony (2004) 33 Cal.4th 367, 377 [“a trial court does not abuse its discretion unless

its decision is so irrational or arbitrary that no reasonable person could agree with it”].)

       E.      DIFFERENT RESULT

       We now focus on the factor concerning the probability of a different result at a

retrial, i.e., the authenticity issue.

       If the newly discovered evidence is inadmissible, then it will not be probable for

a new result to be achieved at a retrial. (See People v. Loar (1958) 165 Cal.App.2d 765,

778-781 [discussing inadmissible evidence and a motion for new trial].)

       The only evidence related to the authenticity of the receipt was (1) Harmon’s

statement that the receipt was not forged; and (2) the public defender’s investigator’s

written statement that Velardez told the investigator, “he issued the registration receipt




                                             14
to [defendant] on March 30, 2011 because his name and badge number [are] on the

receipt.”3 The prosecutor offered contrary argument, but not evidence.

         Given that the evidence only supported a finding the receipt was authentic

because it was issued by Velardez, we conclude the trial court reasonably determined

the receipt could probably produce a different verdict at a retrial because the evidence

would be admissible. As a result, we conclude the trial court did not abuse its

discretion.

                                         DISPOSITION

         The order granting a new trial is affirmed.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                         MILLER
                                                                                           J.


We concur:


RICHLI
                          Acting P. J.


KING
                                    J.




         3   The written statement was attached as an exhibit to defendant’s motion for new
trial.


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