Filed 12/27/13 P. v. Motta CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D061951

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCD217434)

EDWARD MOTTA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Robert F.

O'Neill, Judge. Affirmed.

         Doris M. LeRoy, for the Defendant and Appellant, under appointment by the

Court of Appeal.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Randall Einhorn and Theodore M.

Cropley, Deputy Attorneys General, for the Plaintiff and Respondent.
       A jury convicted Edward Motta of attempted murder (Pen. Code,1 §§ 664, 187,

subd. (a); count 1); assault by means of force likely to produce great bodily injury (§ 245,

subd. (a)(1); count 2); making a criminal threat (§ 422; counts 3, 6 & 9); false

imprisonment by violence, menace, fraud, or deceit (§§ 236, 237, subd. (a); counts 4 &

8); resisting an officer (§148, subd. (a)(1); counts 5 & 11); first degree burglary (§ 459;

count 7); and battery of a current or former significant other (§ 243, subd. (e)(1); count

10). The jury found true allegations that in committing the attempted murder and assault,

Motta personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)); and the

burglary was of an inhabited house (§ 460).

       Motta admitted he was previously convicted of felony battery and aggravated

battery under Florida Statutes sections 784.041, subdivision (1) and 784.045, subdivision

(1)(a)1. The court found those convictions qualified as strikes under California law

(§§ 667, subd. (a)(1), 668, and 1192.7, subd (c)); the jury thereafter found true allegations

that Motta had suffered those convictions. The court denied Motta's new trial motion and

sentenced him to 95 years to life in state prison.

       Motta contends: (1) the trial court prejudicially denied his right to self

representation guaranteed under the Sixth Amendment of the federal Constitution; (2) the

court erroneously denied his new trial motion; and (3) there was no substantial evidence

that his Florida convictions qualified as prior strikes under California law and he was




1      All statutory references are to the California Penal Code unless otherwise stated.
                                              2
denied his federal constitutional right to a jury trial on that issue. We affirm the

judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

       September 23, 2008 Incident (Counts 7-11)

       S.L. testified that on September 23, 2008, after Motta had argued with her, he

became upset and left her house. He returned there, punched out a window, climbed into

the house and threatened to snap S.L.'s daughter's neck. S.L. was scared and ran outside.

Motta chased her, jumped on her and dragged her back home by the hair. Neighbors

called police, who arrived and saw injuries to S.L.'s arms, knees and foot. Because she

was afraid, she lied, telling police that Motta had left. However, while police searched

the house, Motta ran outside. Police detained him.

       November 11, 2008 Incident (Count 6)

       On November 11, 2008, Motta and S.L. went to dinner at a steakhouse where he

accused her of being unfaithful. He loudly threatened to "cut her up in pieces." S.L.

went to the bathroom and told two women she was afraid for herself and her children

because Motta had threatened to "chop her head off." Motta followed S.L. and tried to

force his way into the women's restroom, but the women prevented him from entering.

The restaurant staff called police.




                                              3
       November 23, 2008 Incident (Counts 1-5)

       On or around November 23, 2008, approximately one year after Motta and S.L.

began dating, they planned a Hawaii trip. The day before their scheduled departure,

Motta shook S.L. and accused her of stealing his car key. She ran to a neighbor's house,

tripped and hurt her ankle. She said she would not go to Hawaii, but he apologized and

she changed her mind. They checked into a downtown San Diego hotel that night, and

after having a drink, Motta said he was tired and lay down. S.L. noticed bruises on her

arm from the earlier altercation, and therefore resolved to abandon the Hawaii trip. She

packed her luggage and pretended to sleep. When she thought Motta was asleep, she

started to leave the room. Just then, Motta grabbed her neck, threw her across the room,

jumped on her, strangled her and hit her, bloodying her mouth and face. He threatened to

kill her and leave her children motherless. Scared and thinking she was going to die, she

left the room and screamed for help. A Marine who was near an elevator saw Motta hit

S.L. Some Marines and their spouses took S.L. into one of their hotel rooms. S.L. told

them she was afraid Motta would return and kill her.

       The Marines followed Motta until police arrived. Motta resisted arrest, even after

police had handcuffed him. He denied to police that he carried an identification card or

was staying at the hotel, but police found a hotel room key and his identification card on

his person. Motta also fought with the medical team who put him in an ambulance.

Motta's blood tested positive for alcohol and marijuana.

       Police investigating the incident saw blood and clumps of hair on a bed in S.L.'s

hotel room. Blood also was on a hallway wall leading from that room to an elevator.

                                             4
       Paramedics took S.L. to the hospital, where Dr. James Schwendig, a trauma

surgeon, examined her early on November 24, 2008. He saw bruises on her face, scalp

and neck. He testified about her more significant injury: "The reason I admitted her and

observed her for that 24-hour period was to make sure that the edema or swelling of the

airway did not get worse." According to Dr. Schwendig, S.L. did not remember some

parts of the hotel incident; therefore, he concluded she possibly had suffered a

concussion. He added, "And most significantly . . . the injury that required the hospital

admission was a small crack or fracture running through what is called the hyoid bone."

Dr. Schwendig noted that S.L.'s CT scan showed that her hyoid bone was not displaced.

Dr. Schwendig testified that a direct force to the hyoid bone is required to fracture it, and

in 11 years as a trauma surgeon, his only patient with that injury was S.L.

       On cross-examination, Dr. Schwendig acknowledged his inability to tell from his

examination how S.L.'s hyoid bone became fractured. He also agreed that if S.L. had

fallen in a precise way, that could have caused the fracture. Further, Dr. Schwendig

emphasized the swelling was his biggest concern: "This particular injury is potentially

life-threatening. . . . All I know when I . . . evaluated her that morning is that she had a

broken hyoid bone. There was a small amount of swelling with it. I did not know if that

swelling would continue to get worse, in which case it could lead to closer [sic] of the

airway or kill her, or if it had swelled as much as it was going [to] swell and not be a

problem." He added: "The swelling is the dangerous thing at this point. . . . The [ear

nose and throat] surgeon said it didn't need to be fixed. Now our concern [was] just

whether or not the swelling would be a problem."

                                              5
       Defense Case

       S.L. told a private investigator that her relationship with Motta was pleasant at

first, but around October 2008, after Motta started using the drug Chantix, Motta's

conduct changed and he displayed agitation, homicidal ideation, aggression, anger,

paranoia, trouble sleeping, and vivid or unusual dreaming. The investigator testified

those were some of Chantix's adverse effects.

       Motta testified that in August 2008, a doctor prescribed Chantix to help him quit

smoking cigarettes. But the doctor failed to warn Motta about Chantix's side effects or

ask about other medication, alcohol or drugs Motta was taking. Motta did not volunteer

that information to the doctor. Motta stated that within one month of taking Chantix, he

started experiencing vivid nightmares, a shorter tolerance level and aggression. He also

accused S.L. of cheating on him, and different people of trying to steal from him. Motta

testified he continued taking Chantix every day until November 2008. He acknowledged

he never got into any fights with anybody except S.L. during that period.

       In August 2008 and September 2008, Motta and S.L. attended couples counseling,

and the counselor's notes state Motta had discussed "red flags, his temper." It was

decided Motta and S.L. would see separate therapists, which Motta started doing in

September 2008. Motta stated in paperwork he filled out at the therapist's office that he

was seeking treatment for his anger problem, which he had had since "forever."

Specifically, Motta told a psychiatrist that he had engaged in violent incidents as a

teenager, and started using drugs in his 20's. In response to a question on the intake form

regarding how often he drank more than four alcoholic drinks in a 24-hour period, he

                                             6
responded, "everyday." Motta also told a psychiatrist he had used "cocaine,

Benzodiazepine, ecstasy, [and] red wine, two to three glasses a night." Motta admitted

during therapy that he gave S.L. gifts, including a car and jewelry, to try to control her.

In both September 2008 and November 2008, in the context of Motta's therapy, he signed

contracts stating he would not hurt or kill anyone. Motta handwrote on the second

contract that he promised not to kill S.L. Notes from Motta's September 2008, meeting

with a therapist indicate Motta had recently used cocaine and methamphetamine. Motta

denied this at trial, saying he had told the therapist only about his ecstasy use.

       Motta testified about the hotel incident as follows: he was tired and went to sleep,

and awoke to find S.L. standing over him, apparently trying to awaken him. As a knee

jerk reaction, he threw his hands out and hit her in the face and neck. She fell and cried.

He realized what he had done and immediately apologized. He acknowledged S.L.'s face

was bloody, and he had caused some of her injuries. He testified that when she had

refused to go to Hawaii, he was frightened that she might break up with him. But he

claimed they packed, and he started taking her home. Near the hotel elevator, he asked

her whether she had another lover. She grabbed Motta and insisted she was not cheating.

He threatened her and pushed her hand away, and she called for help. Motta denied

slapping, punching, choking S.L., or grabbing her hair.

       Defense expert Dr. Alan Abrams, a psychiatrist and attorney, interviewed S.L. and

Motta, and reviewed police reports of Motta's domestic violence incidents as well as

S.L.'s trial testimony, among other documents. Dr. Abrams testified that federal

government regulators in 2009 ordered Chantix's manufacturer to include in marketing

                                              7
material a "black box" warning regarding the drug's neuropsychiatric effects. Thereafter,

a package insert included with the drug stated that "serious neuropsychiatric symptoms

have been reported in patients being treated with Chantix." Other required warnings

stated, "These post-marketing reports have included changes in mood, including

depression and mania, psychosis, hallucinations, paranoia, delusions, homicidal ideation,

hostility, agitation, anxiety and panic, as well as suicidal ideation, suicide attempts and

completed suicide." Dr. Abrams concluded, "I think there is a significant likelihood, but

not beyond a reasonable doubt, that Chantix played a substantial role in Mr. Motta's

paranoia and aggression and violence."

       The prosecutor asked Dr. Abrams on cross-examination whether Motta honestly

accepted his role in the domestic violence incidents. Dr. Abrams conceded Motta had

denied or downplayed several details regarding both the Florida convictions and those

involving S.L. Dr. Abrams explained his view regarding Motta's veracity: "[Y]ou know,

I work in a prison. I take many things with a grain of salt, and so I don't really grill

people to tell me what seems nonsensical on the face of it. My inference was, [Motta]

wasn't ready to talk about it." The Prosecutor clarified, "So [Motta's] story to you was

nonsensical, obviously?" Dr. Abrams confirmed: "Yeah. The bruises I saw in the police

report were not the sort of bruises I would associate with someone being startled."

       Dr. Abrams agreed with the prosecutor that even after Motta had stopped using

other drugs like methamphetamine, ecstasy, and cocaine, their long-lasting effects on

Motta would be similar to some of Chantix's side effects.



                                              8
                                       DISCUSSION

                                              I.

                           Motta's Motion to Represent Himself

       Motta contends the court prejudicially erred by denying his motion to represent

himself. He concedes "the trial was well along when [he] made his request" to substitute

counsel, but claims "significant opportunities to advance the defense case remained."

Background

       On June 7, 2010, immediately before jury selection began, Motta requested

dismissal of retained counsel. During in camera proceedings, he complained he did not

understand his defense counsel's theory of the case. The court explained to Motta:

"[Counsel] has done everything she can to pursue the only available defense that there is,

quite frankly, that I can see based on the evidence. She has done a stellar job. . . . [¶]

And the defense is along the lines of unconsciousness, voluntary intoxication, and/or

involuntary intoxication." The court denied Motta's motion as untimely. The next day,

Motta renewed his motion to relieve retained counsel and requested a continuance. The

court again denied the motion as untimely.

       On June 9, 2010, the court denied Motta's motion to represent himself, describing

it as an "impulsive reaction to [Motta's] frustrated efforts to have an attorney who would

do what [Motta] wanted with respect to particular witnesses and evidence." The court

analyzed the motion based on the factors set forth in People v. Windham (1977) 19

Cal.3d 121, 128-129 (Windham), and concluded: (1) Motta's request for self-

representation was untimely; (2) Motta had already replaced two attorneys and his current

                                              9
attorney had represented him in approximately 15 status conferences up to that time; (3)

the purported lack of rapport between Motta and his counsel was not a sufficient reason

to permit Motta to represent himself; (4) Motta had not subpoenaed witnesses, and doing

so at that late stage would delay the trial; and (5) Motta "is and will remain so disruptive,

obstreperous, disobedient, disrespectful or obstructionist in his actions and words as to

preclude the exercise of a right of self-representation." Addressing Motta, the court

elaborated on the last point: "This has occurred continually throughout the trial. [You]

[fail] to communicate with [your counsel] and when you do[,] it is argumentative. You

are interrupting her during the proceedings. You are shuffling paper around causing a

distraction. You are glaring at witnesses, laughing, proceeding as if this proceeding is a

joke. Your conduct towards [the victim] is indicative of that."

Applicable Law

       " 'A criminal defendant has a right to represent himself at trial under the Sixth

Amendment to the United States Constitution. [Citations.] A trial court must grant a

defendant's request for self-representation if three conditions are met. First, the

defendant must be mentally competent, and must make his request knowingly and

intelligently, having been apprised of the dangers of self-representation. [Citations.]

Second, he must make his request unequivocally. [Citations.] Third, he must make his

request within a reasonable time before trial.' " (People v. Stanley (2006) 39 Cal.4th 913,

931-932; Faretta v. California (1975) 422 U.S. 806, 815 (Faretta).)

       "[O]nce a defendant has chosen to proceed to trial represented by counsel,

demands by such defendant that he be permitted to discharge his attorney and assume the

                                             10
defense himself shall be addressed to the sound discretion of the court. When such a

midtrial request for self-representation is presented the trial court shall inquire sua sponte

into the specific factors underlying the request thereby ensuring a meaningful record in

the event that appellate review is later required. Among other factors to be considered by

the court in assessing such requests made after the commencement of trial are the quality

of counsel's representation of the defendant, the defendant's prior proclivity to substitute

counsel, the reasons for the request, the length and stage of the proceedings, and the

disruption or delay which might reasonably be expected to follow the granting of such a

motion. Having established a record based on such relevant considerations, the court

should then exercise its discretion and rule on the defendant's request." (Windham,

supra, 19 Cal.3d at pp. 128-129.)

       In California, there is no bright-line test for determining the timeliness of a Faretta

motion (People v. Clark (1992) 3 Cal.4th 41, 99, abrogated on other grounds as stated in

People v. Pearson (2013) 56 Cal.4th 393, 462); rather, the "reasonable time" requirement

is to ensure that a defendant does not "misuse the Faretta mandate as a means to

unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.

. . . When the lateness of the request and even the necessity of a continuance can be

reasonably justified the request should be granted. When, on the other hand, a defendant

merely seeks to delay the orderly processes of justice, a trial court is not required to grant

a request for self-representation without any ability to test the request by a reasonable

standard." (Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Burton (1989) 48

Cal.3d 843, 852-853.)

                                              11
       An untimely Faretta motion is addressed to the trial court's discretion. (People v.

Jenkins (2000) 22 Cal.4th 900, 959.) In exercising its discretion, the court should

consider certain criteria, including "the quality of counsel's representation . . . the

defendant's prior proclivity to substitute counsel, the reasons for the request, the length

and stage of the proceedings, and the disruption or delay which might reasonably be

expected to follow the granting of such a motion." (Windham, supra, 19 Cal.3d at p. 128;

People v. Marshall (1996) 13 Cal.4th 799, 827.) The erroneous denial of a timely

Faretta request is reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824.) An

erroneous denial of an untimely Faretta motion, however, is reviewed under the harmless

error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Nicholson (1994) 24

Cal.App.4th 584.)

       The California Supreme Court has held that a Faretta motion filed two weeks

before trial was untimely. (People v. Lynch (2010) 50 Cal.4th 693, 719, 726, overruled

on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636-643.) The court

held: "[A] trial court may consider the totality of the circumstances in determining

whether a defendant's pretrial motion for self-representation is timely. Thus, a trial court

properly considers not only the time between the motion and the scheduled trial date, but

also such factors as whether trial counsel is ready to proceed to trial, the number of

witnesses and the reluctance or availability of crucial trial witnesses, the complexity of

the case, any ongoing pretrial proceedings, and whether the defendant had earlier

opportunities to assert his right of self-representation." (People v. Lynch, at p. 726.)

"The fact that the granting of the motion will cause a continuance, and that this will

                                              12
prejudice the People, may be evidence of the defendant's dilatory intent. . . . In most of

the cases finding a motion timely as a matter of law, no continuance would have been

necessary." (People v. Burton, supra, 48 Cal.3d at p. 854.)

Analysis

       Motta's June 9, 2010 Faretta motion made during trial was untimely. In light of

the trial court's application of the Windham factors to the facts of this case, we conclude

there was no abuse of discretion. The court expressly concluded Motta had been

disruptive and disrespectful to his counsel, the witnesses and victim. The court also

noted Motta would require a subpoena for his witnesses, thus necessitating a continuance.

Lastly, we point out that this case was complex, as it involved an attempted murder

charge, and evaluation of medical testimony regarding Chantix and its side-effects, and

the victim's acute injuries. We therefore conclude the court did not err in denying Motta's

Faretta motion.

                                             II.

                                 Motta's New Trial Motion

       Motta contends the court erroneously denied his new trial motion based on

claimed ineffective assistance of counsel.

Background

       In January 2012, Motta brought a new trial motion under section 1181, partly on

the ground he had obtained new evidence showing that his trial counsel was ineffective

for failing to investigate a defense relating to S.L.'s hyoid bone injuries. Motta submitted

three medical experts' declarations stating S.L.'s CT scans did not show she suffered a

                                             13
fracture, but rather she had an unfused joint, which is a normal condition shared by a

substantial number of people.

       At the motion hearing, a defense expert attorney testified that Motta's trial counsel

prejudicially failed to obtain independent medical expert evaluation of S.L.'s CT scans,

thus leaving uncontested Dr. Schwendig's testimony that S.L.'s hyoid bone was fractured.

       Motta's trial counsel testified she had consulted the radiologist who performed

S.L.'s CT scan and telephoned a doctor in New Jersey about the hyoid bone injury. But

she did not forward S.L.'s CT scan results to anyone for an independent evaluation.

       The court denied the motion, stating, "Just because [trial counsel] did not present a

defense as to the hyoid bone [issue], so to speak, I cannot say that she fell below the

standard [set forth in Strickland v. Washington (1984) 466 U.S. 668]. [¶] I do believe

that the totality of the evidence presented as to the injuries [S.L. sustained], including

discussion about the hyoid bone, helped to prove the great bodily injury allegation. . . .

[¶] Mr. Motta probably . . . to his detriment did indicate in his testimony that at the time

he did feel like killing [S.L.] He said that." The court noted, "[Mr. Motta] did not

contend at all the events at the hotel did not occur. He didn't dispute that at all. He

disputed [S.L.'s] version." The court continued, "We have the independent witnesses

who testified, the observations of the . . . Marines who were there at that hotel. . . .

There were harbor police officers who responded to the scene, et cetera." Finally, the

court pointed out, "The Chantix evidence[,] I thought[,] was very well presented and very

well prepared. And if it had been accepted by the jury . . . it may have resulted in the

verdict that [trial counsel] was looking for, but then Mr. Motta decided to testify [and]

                                              14
that may have had some effect on the jury as to the Chantix evidence."2 The court

declined to find trial counsel was ineffective.

Applicable Law

       On a motion for a new trial, the court weighs the evidence independently. (People

v. Davis (1995) 10 Cal.4th 463, 523.) The trial court is guided by a presumption in favor

of the correctness of the verdict and proceedings supporting it. It should not disregard the

verdict but instead consider the proper weight to give to the evidence and whether there is

credible evidence to support the verdict. (Davis, supra, at p. 524.) A motion for new

trial is addressed to the discretion of the trial court and will not be disturbed on appeal

absent an abuse of discretion. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.)

There is a strong presumption that the trial court properly exercised its discretion, so

abuse must appear clear and unmistakable. (Davis, supra, at p. 524.)

       As explained in People v. Vines (2011) 51 Cal.4th 830, courts reviewing claims of

ineffective assistance of counsel on appeal defer to trial counsel's reasonable tactical

decisions, and there is a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance. (Id. at p. 876; People v. Ledesma (2006) 39

Cal.4th 641, 746.) Additionally, "[A] reviewing court must adopt the trial court's factual

findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th



2       During posttrial proceedings dialogue with Motta's new counsel, the court alluded
to the likely negative effect Motta's testimony had on the jury: "Again, you weren't there
to watch [Motta] attempt to sell his case to the jury when he testified, and it is somewhat
ironic that what we have of a trial is just a cold sterile record. That is reduced to pages,
when we don't have video."
                                              15
1223, 1254.) "[I]n order to demonstrate ineffective assistance of counsel, a defendant

must show both that counsel's performance fell below an objective standard of

reasonableness under prevailing professional norms and that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." (Vines, supra, at p. 879.) "[A] court need not determine

whether counsel's performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies." (Strickland v. Washington, supra,

466 U.S. at p. 697.)

Analysis

       Here, in light of Motta's trial counsel's testimony that she contacted two medical

professionals in order to investigate S.L.'s hyoid bone injuries, we conclude the trial court

did not err in finding counsel did not provide ineffective assistance. But even assuming

arguendo that trial counsel's actions fell below prevailing professional norms because she

did not present expert medical evidence to counter Dr. Schwendig's testimony regarding

S.L.'s fractured hyoid bone, we conclude there is no reasonable likelihood Motta would

have received a more favorable outcome absent trial counsel's inaction.

       As noted, S.L. testified in detail about the hotel incident, including Motta's threats

to kill her, his physical attacks on her and her resulting injuries. Marines witnessed part

of Motta's attack on S.L. The spouses of the Marines testified S.L. was afraid Motta

would kill her. Dr. Schwendig provided further testimony regarding S.L.'s acute injuries,

including her bruised face and swelling near her trachea. Dr. Schwendig consulted

another surgeon, who minimized S.L.'s hyoid bone injury. Also, Dr. Schwendig was

                                             16
more concerned about S.L.'s concussion and blocked trachea and admitted her to the

hospital for further observation.

       Motta himself did not deny hitting S.L. during the hotel incident. To the contrary,

a possible motive is inferrable from his testimony and in light of his statement to a

therapist that he used gifts to control S.L. After she decided to abandon the Hawaii trip,

he feared she would leave him. Although Motta defended his attack as a reflexive

reaction to being suddenly awakened, his own expert witness described that defense as

"nonsensical." Motta also claimed he had pushed S.L. away when she tried to reassure

him she was not cheating. But a Marine disputed Motta's testimony on that point. In

light of substantial evidence to support the convictions arising from the hotel incident, the

trial court did not err in rejecting Motta's claim of ineffective assistance of counsel.

       Motta points out that during closing arguments, the prosecutor, in referring to the

great bodily injury allegations, stated: "The fractured hyoid, clearly serious. It was life-

threatening and very, very serious. And I don't think the defense will get up here and try

to say it was not a serious injury." Motta concludes, "Thus, the purported hyoid bone

fracture, alone, was the basis for the allegations of great bodily injury. And, the hyoid

bone fracture was an important basis upon which the prosecutor urged the jury to find

[Motta] guilty of attempted murder, and of assault by means of force likely to produce

great bodily injury." But "[t]he mere argument of counsel is not evidence." (People v.

Kinder (1954) 122 Cal.App.2d 457, 463.) Given the totality of Dr. Schwendig's

testimony set forth above, we are not bound by the prosecutor's comment on that

testimony.

                                              17
       Motta contends his trial counsel should have fully investigated S.L.'s injury to

better cross-examine Dr. Schwendig. In our view, trial counsel's cross-examination of

Dr. Schwendig, however limited, was effective, as she managed to elicit concessions that

Dr. Schwendig did not know exactly how S.L. fractured her hyoid bone, and S.L.'s

possible fall could have caused it.

       Motta also contends the court should have granted his new trial motion because

the evidence that S.L.'s hyoid bone was not fractured constituted newly discovered

evidence. Motta relies on People v. Martinez (1984) 36 Cal.3d 816 (Martinez), in which

the defendant moved for a new trial on the ground of newly discovered evidence. (Id. at

p. 820.) The trial court denied the motion, finding defense counsel was not diligent in

discovering the new witness. (Id. at p. 821.) In its analysis, the Supreme Court first

considered the significance of the proffered witness, noting that numerous cases hold that

a new trial motion should be granted when the newly discovered evidence contradicts the

strongest evidence introduced against the defendant. (Id. at p. 823.)

       In ruling on a motion for new trial based on newly discovered evidence, the trial

court considers whether: (1) the evidence, and not merely its materiality, is newly

discovered; (2) the evidence be not cumulative merely; (3) the evidence is such as to

render a different result probable on a retrial of the cause; (4) the party could not with

reasonable diligence have discovered and produced it at the trial; and (5) these facts are

shown by the best evidence of which the case admits. (People v. Delgado (1993) 5

Cal.4th 312, 328.) Ultimately, a motion for new trial is a matter for the trial court's

discretion. Once the court has denied the motion, its exercise of discretion will not be

                                             18
overturned on appeal absent a manifest abuse of discretion. On appeal, we assess this

question based on the facts and circumstances of the underlying case. (People v.

Delgado, supra, 5 Cal.4th at p. 328.)

       A comparison to the facts of Martinez, supra, 36 Cal.3d 816 is illustrative of why

the "newly discovered evidence" in this case was not sufficient for the trial court to

reopen the probation revocation hearing. In Martinez, the defendant was convicted of

second degree burglary. (Id. at p. 819.) The only evidence against the defendant in

Martinez was a palm print found on a newly painted drill press at the scene, a business.

(Id. at p. 822.) One of the employees of the business testified he had painted the drill

press the day before the burglary. (Id. at p. 819.) After trial, a defense investigator

located a witness who could offer testimony the drill press was painted up to two weeks

before the burglary. (Id. at pp. 820-821.) The Martinez court concluded that although

the jury may not have believed the second employee, that employee's testimony was

exculpatory and may have raised a reasonable doubt, particularly in light of the limited

evidence supporting the defendant's conviction. (Id. at pp. 823-824). Thus, the court

held the trial court abused its discretion in not granting a new trial motion. (Id. at p. 824.)

Here, in contrast to Martinez, we cannot say that Motta's proffered "newly discovered

evidence" contradicted the strongest evidence against him. In light of the cumulus of

evidence outlined above, medical testimony that S.L.'s hyoid bone was not fractured

would not have raised a reasonable doubt sufficient to undermine Motta's convictions.




                                              19
                                             III.

                             Motta's Florida Prior Convictions

                                             A.

       Motta contends the court erroneously denied his posttrial motion brought on the

separate ground that no substantial evidence showed his Florida prior convictions

qualified as strike offenses under California law.

Background

       In September 2001, Florida authorities charged Motta with unlawfully and

intentionally striking S.F., his cohabitant, and causing her great bodily harm during a

May 2001 incident. The affidavit of probable cause regarding that incident stated that

S.F. and Motta got into an altercation and he strangled her, punched her in the face and

banged her head against a wall. The arresting officer observed lacerations on S.F.'s neck,

her black and blue eye, and bruised face. S.F.'s attending nurse stated S.F. had suffered a

ruptured ear drum. The authorities also charged Motta with striking and intentionally

causing S.F. great bodily harm during an August 2001 incident. In the affidavit of

probable cause for the second incident, a police officer stated he saw S.F. in a parking lot

with red marks around her neck and blood coming from her lips and nose. She also had a

large hematoma on her face. S.F. told the police officer that Motta had attempted to

strangle her.

       During an April 2002 change of plea hearing in Florida, the prosecutor orally set

forth the factual basis for the two charges, repeating the information in the certificates of

probable cause. Immediately afterwards, the prosecutor asked the court to have Motta

                                             20
admit to those facts. Motta's counsel replied, "[Motta] would like to plead no contest;

and he would agree that if those facts were presented to a jury, he could in fact be found

guilty" of the charges. The court discussed but declined to permit an "Alford plea," in

which the defendant does not admit the facts underlying the charged offense, but pleads

guilty to take advantage of a favorable recommendation from the prosecution and

because he recognizes he might be convicted if the case were tried. (N.C. v. Alford

(1970) 400 U.S. 25, 91.) Instead, the court limited Motta's options to pleading guilty or

going to trial. Motta responded, "I plead guilty, your honor." The court noted,

"[Alright], just for the record, the defendant and his attorney . . . have had a colloquy off

the record between the two of them. . . . I just wanted to note this plea is entered with

additional consultation with counsel." The prosecutor next warned Motta that he risked

maximum possible state prison sentences of 15 years and five years respectively on the

two counts. Motta stated he understood the consequences of his plea.

       After Motta's plea, the court received testimony from S.F., who had traveled from

France to attend the proceedings, and whose ability to attend the subsequent sentencing

hearing was uncertain. S.F. testified about the harm Motta's aggression had caused her:

His strangulation produced a cyst, which was operated on and removed. Doctors

detected thyroid cancer and removed her thyroid gland, requiring her to take hormone

replacement for the rest of her life. She needed two surgeries to straighten her broken

nose. She had a perforated eardrum, which affected her hearing. She also was receiving

psychological counseling approximately three times a week. In May 2002, the Florida



                                              21
court sentenced Motta to 18 months in state prison and placed him on probation for 10

years.

         During the trial proceedings in the present case, the People produced various

documents, including the Florida affidavits of probable cause, Motta's change of plea

form, the transcript of the Florida change of plea proceedings, and the Florida court's

sentencing order. The court, relying on the language of the Florida and California

statutes, ruled Motta's Florida convictions qualified as strikes under California law,

specifically, section 667, subdivision (d): "First of all, as to the personal issue, he was

the only defendant in the Florida case. As to the factual basis, the argument that [the]

prosecutor's statement is hearsay, that's not a very viable argument. By pleading in the

Florida case, [Motta] accepted the factual basis stated by the prosecutor on the record and

that was accepted by the court. [¶] The argument about personal infliction versus

causation is an argument without distinction, quite frankly. If you carefully review the

Florida statute and compare it to California law and review the cases that deal with the

issue, including the Florida cases, you will see clearly that the Florida statute actually

requires more elements than the California statute does. And you compare and contrast

that with the felony battery in Florida, it certainly qualifies. [¶] As for the aggravated

battery . . . Florida actually requires an additional element, that being specific intent, thus

the aggravated battery has an additional element not required in California. So my ruling

is that the prior convictions do qualify under California law and as serious violent felony

priors."



                                              22
Applicable Law

       "Under the Three Strikes law, a prior conviction from another jurisdiction

constitutes a strike if it is 'for an offense that includes all of the elements of the particular

felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section

1192.7.' " (People v. Jenkins (2006) 140 Cal.App.4th 805, 810.) "[T]he relevant inquiry

in deciding whether a particular prior conviction qualifies as a serious felony for

California sentencing purposes is limited to an examination of the record of the prior

criminal proceeding to determine the nature or basis of the crime of which the defendant

was convicted." (People v. McGee (2006) 38 Cal.4th 682, 691.) "To make this

determination, the court may consider the entire record of the prior conviction as well as

the elements of the crime." (People v. Avery (2002) 27 Cal.4th 49, 53.) When a

defendant challenges the sufficiency of the evidence to sustain the trial court's finding

that the prosecution has proven all elements of the enhancement, we must determine

whether substantial evidence supports that finding. " 'The test on appeal is simply

whether a reasonable trier of fact could have found that the prosecution sustained its

burden of proving the enhancement beyond a reasonable doubt.' " (People v. Rodriguez

(2004) 122 Cal.App.4th 121, 129.) In making this determination, we review the record in

the light most favorable to the trial court's findings. (Ibid.)

       In 2002, Florida Penal Code section 784.045 provided: "(1)(a) A person commits

aggravated battery who, in committing battery: [¶] 1. Intentionally or knowingly causes

great bodily harm, permanent disability, or permanent disfigurement; or [¶] 2. Uses a

deadly weapon."

                                               23
       In California, "any felony in which the defendant personally inflicts great bodily

injury on any person, other than an accomplice," personally uses a firearm, or personally

uses a dangerous or deadly weapon is a serious felony. (§ 1192.7, subds. (c)(8) &

(c)(23).) To "personally inflict" an injury, the defendant must act to directly cause the

injury, and not just proximately cause it. (People v. Rodriguez (1999) 69 Cal.App.4th

341, 347.)

       The hearsay exception for adoptive admissions is codified in Evidence Code

section 1221, which provides: " 'Evidence of a statement offered against a party is not

made inadmissible by the hearsay rule if the statement is one of which the party, with

knowledge of the content thereof, has by words or other conduct manifested his adoption

or his belief in its truth.' " Thus, " ' "[w]hen a person makes a statement in the presence

of a party to an action under circumstances that would normally call for a response if the

statement were untrue, the statement is admissible for the limited purpose of showing the

party's reaction to it. [Citations.] His silence, evasion, or equivocation may be

considered as a tacit admission of the statements made in his presence." ' " (People v.

Jennings (2010) 50 Cal.4th 616, 661.)

       "Whether the statement constitutes an adoptive admission is 'determined upon the

facts and circumstances therein presented.' " (People v. Roberts (2011) 195 Cal.App.4th

1106, 1121.) For a statement to be an adoptive admission, there must be sufficient

evidence to sustain a finding that (1) the defendant heard and understood the statement

under circumstances normally calling for a response, and (2) the defendant adopted the



                                             24
statement as true by the defendant's words or conduct. (People v. Davis (2005) 36

Cal.4th 510, 535.)

       This court has held: "Generally, both parties to a plea agreement are expected to

pay careful attention during a plea colloquy to ensure the formalities necessary for its

validity are met and the record accurately reflects the parties' agreement. The possibility

of future consequences, including the application of habitual offender statutes, further

necessitates the parties ensure the record accurately reflects the factual basis for the plea.

Therefore, . . . a defendant would normally and reasonably be expected to object to or

respond to the prosecution's factual recital if the factual recital did not accurately reflect

the circumstances of the offense to which the defendant was pleading guilty or no

contest." (People v. Sample (2011) 200 Cal.App.4th 1253, 1265.)

       Analysis

       Here, as in People v. Sample, supra, 200 Cal.App.4th 1253, we conclude there is

sufficient evidence to support the court's finding the prosecutor's recital fell within the

hearsay exception for an adoptive admission and the trial court in this case properly

considered the prosecution's recital in determining that Motta's prior Florida convictions

qualified as prior strike convictions under California law. Where, as here, the plea

colloquy shows the defendant confirmed the factual basis for the plea and made

admissions upon entering the plea, those factual admissions are made part of the

convictions. (Shepard v. United States (2005) 544 U.S. 13, 20-21; see also United States

v. Rosa (2d Cir. 2007) 507 F.3d 142, 158.) As such, they may be used to establish the

conduct supporting the convictions.

                                              25
       In entering his plea, Motta did not challenge the prosecutor's factual basis for the

crimes, thus admitting the conduct that makes the offenses serious felonies in California;

that is, that he inflicted great bodily injury to S.F. and directly caused her injuries.

Accordingly, there was substantial evidence supporting the trial court's finding that

defendant's prior convictions were serious felonies. Motta's contrary arguments,

including that his trial counsel was ineffective for failing to object to the documents the

prosecutor introduced regarding the Florida proceedings, are unavailing.

                                               B.

       Motta contends he was entitled to a jury trial on the issue of whether he had

committed the alleged prior convictions. He acknowledges the California Supreme Court

has ruled that defendants are not entitled to a jury trial on the issues of the precise facts of

a prior conviction, and we are bound by that case. (People v. McGee, supra, 38 Cal.4th

at pp. 686, 706-707; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.) He raises the issue here to preserve it for federal review.

       DISPOSITION

       The judgment is affirmed.

                                                                                O'ROURKE, J.



WE CONCUR:

    McCONNELL, P. J.
    McDONALD, J.




                                              26
