Filed 6/16/15 P. v. Pilola CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                             B158266

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                         Super. Ct. No. VA066706)
         v.

GEORGE A. PILOLA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
John A. Torribio, Judge. Affirmed.
         Charles R. Khoury, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
                                 INTRODUCTION
      Appellant and defendant George A. Pilola appeals from a judgment of
conviction for sexual penetration by a foreign object and aggravated mayhem. He
contends that the trial court erred in denying his motion for a new trial based on a
post-trial declaration from the victim recanting her trial testimony that identified
appellant as her attacker.
      The victim (who had been married to appellant for 14 years but who was
separated from him at the time she was assaulted) was the sole witness to identify
appellant as her attacker (among other things, the attacker broke into her house,
tried to anally rape her with a bottle, and carved gang initials on her back). At
trial, she was certain appellant was the attacker: although the attacker’s face was
covered, she recognized him because of his voice, the way he moved, his
breathing, and the manner in which he soothed their baby back to sleep when he
woke up during the commission of the attack. She also saw appellant’s face when
he was in the bathroom washing.
      In a declaration in support of a motion for new trial, the victim recanted her
trial testimony identifying appellant as her attacker, and said she had falsely
identified him because she was angry that he had publicly introduced his girlfriend
as his fiancée. The trial court found her recantation not credible, and denied the
motion for new trial. We find no abuse of discretion in the trial court’s ruling, and
affirm the judgment.




                                           2
              PROCEDURAL AND FACTUAL BACKGROUND
Information
      Appellant was charged by an information with three felony counts:
(1) sexual penetration by foreign object (Pen. Code, § 289, subd. (a)(1));1
(2) aggravated mayhem (§ 205); and (3) first-degree residential burglary (§ 459).
The information also alleged that because appellant used a knife and binding, and
committed the offense during the commission of a residential burglary, he was
subject to alternate sentencing under the One Strike law (§ 667.61, subds. (a), (b),
(d), (e)). The information further alleged sentence enhancements were applicable
due to appellant’s use of a knife during the commission of the mayhem and the
burglary (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1), 12022.3, subd. (b)).
      Appellant pled not guilty to all charges and a jury trial was held.


Evidence at Trial
      The victim and appellant were married for 14 years, but were separated at
the time of the incident. They had five children together, from 16-year-old
Armando to 18-month-old Favian. At the time the crimes occurred, the four
younger children lived with their mother, but Armando was living with appellant.
Appellant’s girlfriend, Laura Rodriguez, also lived with appellant.


      A. The Victim’s Testimony
      On the night in question, the victim went to bed at approximately 9:30 p.m.
Her baby Favian was sleeping next to her in bed. She locked the bedroom door
before getting into bed. Later that night, she woke up when someone kicked the


1
      All further statutory references are to the Penal Code.

                                            3
bedroom door down. Although the intruder’s face was covered by a beanie, she
immediately knew it was her husband, because he had kicked the door down many
times before. He grabbed her by her hair and began beating her head with a hard
object, and kicked her in the side.
      He started taking things out of the closet and making a mess. He said,
“Okay, bitch. Do you have any money? Do you have any jewelry?” He grabbed
the rings off her fingers. He also grabbed her necklace and bracelet.2
      He tied up her wrists behind her back, taped her mouth, and then bound her
legs. He took an unopened beer bottle and inserted it in her rectum, which was
very painful and caused her to scream, at which point he took it out. He grabbed
her by the hair and dragged her down the hallway to the living room. When they
were in the living room, they saw red lights from a police car that pulled up
outside. The assailant whispered to her that if she made a noise, he would kill her.
      He dragged her back to the hallway and forced her to lie face down on the
floor. The assailant ran from room to room, peeking out the windows and
whispering to himself. He was shaking and sweating profusely. He seemed
nervous, scared, and angry.
      While she was lying bound, face down on the floor, Favian woke up. He
came out of the bedroom crying and calling for his mother. She could not answer
because her mouth was taped. The assailant picked up the baby and comforted
him, saying “Okay, yeah, baby, yeah,” to Favian, in the same way the victim had
heard her husband speak to Favian many times in the past. The assailant took
Favian back to bed and closed the door, and Favian went back to sleep. Favian
reacted to the assailant as he typically reacted to his father.


2
      The bracelet and necklace were later found on top of the counter in the kitchen.

                                            4
      While she was lying in the hallway, the assailant started to reinsert the bottle
again, this time without the cap, but she was crying and begging him to stop. Then
he told her, “You didn’t let yourself put the bottle inside so I’m going to do this to
you.” Using a small knife, he carved some letters on her back and her breast that
caused permanent scarring. While carving the letters, he was whispering to her,
asking her “Where’s your husband?” “What’s your husband’s name?” “Where are
your kids?”
      The assailant, who was still very sweaty, went to the bathroom to wash his
face. He turned on the light in the bathroom. From where she was lying in the
hallway she could see into the bathroom. When he opened the mirrored door
above the sink and grabbed a towel to dry off his face, she saw appellant’s face in
the mirror.
      Approximately 15 minutes after the police lights stopped flashing outside,
appellant left. He took her purse, which contained her phone, a pager, some
money, a wallet, checkbook and credit cards. She heard a car start, and thought it
sounded like a van similar to hers.
      After waiting a few minutes to make sure appellant was gone, she untied
herself. Approximately 10 minutes after he left her home, she ran to the
neighbor’s house and used the phone to call her oldest son, Armando, at
appellant’s apartment. She called to tell him to get the kids out of appellant’s
house, because she was worried that appellant was going to hurt them next. She
told Armando that appellant had attacked her and to get out of the house. Then she
called 911.3




3
      It was stipulated that the victim called 911 at 2:34 a.m.

                                            5
       At the hospital, she learned that the blows had broken her jaw. She did not
allow the doctor to perform a rectal examination because he said it was going to
hurt a lot.
       Asked by defense counsel whether she had any doubts that the assailant was
her husband, she responded that she had no doubts. Even before she saw his face
in the mirror, she knew it was him because of “his hands, the way he was moving,
his breath,” and “the way he was saying stuff to me.”


       B. Armando’s Testimony
       Armando testified that on the night the crime occurred, he, his brother,
George Jr. and his two sisters were at appellant’s two-bedroom apartment. At
around 10:45 pm, all the children went to sleep in the living room on a blow-up
mattress.
       At approximately 2:28 a.m., Armando heard the cordless phone ring. He
took the phone into his bedroom and answered it. His mother was on the line,
crying, telling him that appellant was at her house and had tried to kill her. She
told him to take his siblings and leave the apartment. Armando hung up the phone
and went into the other bedroom, where Rodriguez was asleep, to tell her what had
happened. Appellant, who normally slept in the bed with Rodriguez, was not
there. Armando did not see appellant in the apartment but he did not look for him.
       Armando then took the keys to the family’s Ford Arrowstar van and quickly
left the apartment to go to his mother’s home. The van was parked right next to
the family’s other car, a Thunderbird. He sped off in the car, squealing the tires as
he pulled out of the parking spot, and about six minutes into the drive, turned on
his cellphone to call 911, a call that 911 records show was made at 2:34 a.m. After
a four-minute call, he then turned his phone off. He turned it on again to make

                                          6
another call, and saw a missed call from appellant’s apartment. He received
another call from appellant, who asked him where he was, and Armando told him,
“I came to look for you. My mom said you were at the house.” Appellant replied,
“No, I’ve been at the apartment.” He told Armando that he had chased him out of
the apartment and that he had heard the tires spin out. He told Armando, “I don’t
know what’s happening but just come back.” On direct examination, Armando
testified with the aid of cell phone records that he received this phone call at 2:39
a.m. On cross-examination, Armando testified that the first time he spoke with
appellant was at 2:46 a.m.
        At 3:03 a.m., when Armando had already arrived at his mother’s home,
appellant called his cell phone again, and talked to an officer at the scene on that
line.


        C. Rodriguez’s Testimony
        The night of the crime, Rodriguez went to bed by 10:00 p.m. At the time
she went to sleep, appellant was in the living room with his four children. He
never came to bed with her.
        She heard the phone ring in the middle of the night, and noticed that the
clock said it was 2:30 a.m. A minute or so later, Armando came into the room and
said, “My mom called and said my dad [is] hurting her.” Shortly thereafter she
heard the front door closing. A minute and a half to two minutes later, she heard
the front door closing again. She came out to the living room and saw appellant.
He asked her, “Where did Armando go?” She told him what Armando had told
her. Appellant told her he had been home at the apartment, and he did not
understand why Armando had left. He tried to call Armando’s cell phone.
Appellant also tried to call the victim’s house, and he tried Armando again and

                                           7
reached him. He told Armando to stop the car and not to keep going to his
mother’s house, and tried to convince Armando that he was calling from his
apartment. Appellant spoke to Armando twice, with the police coming on the line
the second time.
      Rodriguez further testified that the keys to the Thunderbird, the family’s
other car, were in her purse, next to her bed, on the night of the crime. She also
testified that there was only one set of keys to the van.


      D. George Jr.’s Testimony
      11-year-old George Jr. testified that the night his mother was attacked, he
was sleeping in appellant’s living room, and he thought his father was sleeping in
his bedroom. He did not remember his father lying down with him and his siblings
in the living room. He heard the phone ring in the night and heard Armando
answer it. He overheard a comment that his mother had been hurt, and saw his
brother take the car keys and leave. He tried to call out that he wanted to go with
his brother but he did not think his brother heard him. After Armando left, George
Jr. went to the bathroom and stayed there for around three minutes. He heard the
front door open and when he came out of the bathroom, he saw appellant standing
next to the front door, looking out the door. He was asking where Armando went.
When asked if appellant told him he had just come back from working out, George
Jr. said he did not say that. However, when asked if he might have told the
investigating detective that, George Jr. responded, “Probably.” George Jr.
estimated that approximately 13 minutes passed from the time the phone woke him
up to the time he saw appellant in the living room.




                                           8
      E. Deputy Jeffrey Flotree’s Testimony
      Deputy Flotree testified that at 1:28 a.m. on the night of the attack, he
responded to a report that a neighbor had heard screams and moans coming from
the residence next door. He parked on the street, leaving his vehicle’s amber lights
on. He woke up the residents who lived to the east of the neighbor who had
reported the disturbance, and knocked on the victim’s door several times, but there
was no response. Unable to locate the source of the disturbance, he went back to
his car, turned off the flashing lights and drove around the area for approximately
15 minutes before leaving at approximately 2:14 a.m.
      He responded to the scene again after the victim called 911. He found her
standing on the parkway adjacent to the street, with clear masking tape that had
been torn and stretched around her neck and around her wrists and ankles. She
was hysterical. He talked to her briefly at the scene and she told him she had been
attacked by her ex-husband George. Because she appeared to need immediate
medical attention, she was transported to the hospital and he interviewed her later
at the hospital. He stated that it was difficult to communicate with her at the
hospital because she was very traumatized.
      The victim told him that initially she was not able to see her attacker’s face
in the bedroom and that he was wearing a cap pulled down low. She told him that
she knew it was her ex-husband because of his voice, his physical dimensions, and
because of an incident when the baby woke up. Later, when the assailant went into
the bathroom, she saw him pull off the ski mask and splash water around his face.
      Deputy Flotree authenticated photographs of the victim’s injuries from that
night. He testified that the letters VNWK, which signified the Barrio Norwalk
gang, had been carved on the victim’s back and breast. Deputy Flotree concluded



                                          9
that the attacker wanted to create the appearance that members of the Barrio
Norwalk gang had committed the crime.
      The deputy also testified that he found the beer bottle and roll of tape used in
the attack. He recovered and admitted into evidence a steak knife that was lying in
the entrance way, as well as another steak knife. However, besides the unusual
locations in which the knives were found, there was no indication that either was
the knife used to cut the victim. The victim did not tell the deputy that any
property had been taken.


      F. Deputy Wayne Inskeep’s Testimony
      Deputy Inskeep, the investigating officer, testified that no fingerprints were
recovered, which was not unexpected since the victim stated the attacker was
wearing gloves. No blood was found on the two knives recovered at the scene. As
part of his investigation, he saw that the mirror in the bathroom was moveable.
      Deputy Inskeep described his interview with George Jr. about the night the
victim was attacked. George Jr. told him that when he walked out of the bathroom
after being awakened in the middle of the night, he saw his father walking into the
apartment. George Jr. stated that appellant seemed sweaty, like he had been
exercising. According to George Jr., appellant said he had been “working out.”


      G. Appellant’s Testimony
      Appellant testified that he went to sleep with his boys on the air mattress the
night of the crime, after watching television until approximately 11:30 p.m. He
denied that he ever left the apartment that night.
      In the middle of the night, he was awakened by the sound of a door
slamming. Appellant got up, put his shoes on and walked out the door. Then he

                                          10
heard his van start and heard the wheels spin and the van pull out of the driveway.
He ran down the stairs and up the street about 200 or 250 feet until he saw the van
disappear around a corner. He ran back up to the apartment. On direct
examination, he testified that he went directly into the master bedroom to ask
Rodriguez what had happened. She told him Armando had gone looking for him
because he had received a call from his mother that appellant was at her house
trying to kill her.
       On cross-examination and then on redirect, appellant stated that when he
came back from chasing the van he was planning to call 911 because he believed
the van had been stolen. The phone was not in the kitchen so he went into the
master bedroom to get the phone there, and he found Rodriguez awake. At that
point she asked where he had been and what was going on, and she told him
Armando had gone looking for him. He told her he had been downstairs trying to
find out who took the van.
       Appellant then called Armando’s cell phone, but there was no answer. He
called again, and Armando answered, and appellant asked where he was going and
told him to come back. Armando said he would come back. Appellant waited a
little longer and then tried calling his wife at her house. Then he called Armando
again and spoke to him again. Armando said he was right around the corner from
his mother’s house. Appellant spoke to Armando a final time after Armando
arrived at his mother’s house, and he spoke to a deputy as well. While he was
talking to Armando, he saw his son, George Jr., standing in the hallway looking at
him. He told George Jr. that everything was okay and he should go back to sleep,
which the boy did.




                                         11
      Appellant testified that driving at a normal speed, it took 20 or 25 minutes to
drive from his apartment to his wife’s house, and the fastest possible trip would
take 15 to 20 minutes.


Verdict
      The jury found appellant guilty of sexual penetration by a foreign object as
well as aggravated mayhem, but not guilty of residential burglary. The jury also
found true the allegations with respect to use of binding and use of a deadly
weapon in the commission of the offense of sexual penetration with a foreign
object (§ 667.61, subd. (e)).


Motion for New Trial
      Appellant filed a motion for a new trial, one of the grounds being the
discovery of new evidence. In a declaration in support of appellant’s motion for a
new trial, the victim recanted, claiming that she lied when she identified appellant
as her attacker. She stated she was angry with him because at his sister’s wedding
he had introduced his girlfriend as his fiancée, and the victim believed their
separation was only temporary. She stated that she felt appellant betrayed her and
needed to be punished. At the time she named appellant as her attacker, she
believed that her husband would spend some time in jail but she did not realize that
what she was doing was “so serious.”
      The trial court denied the motion for a new trial. In denying the motion, the
trial court found the recantation not credible. Acknowledging the defense theory
that an unidentified gang member committed the crime, the court stated: “What’s
the explanation for this gang member randomly breaking into this woman’s house
and terrorizing her . . . and then leaving and not taking the TV, or the radio, or

                                          12
anything, just taking her purse, her personal property. . . . [W]ith all due respect, I
have been a defense attorney, I have been a commissioner, and I’ve been a trial
judge, and I’ve never seen this bizarre a crime in all those years by a random
criminal.” When appellant stated that he did not understand why the motion for a
new trial was denied, the court replied, “I ruled that the evidence was more than
satisfactory, more than believable to convict you of this crime, and I don’t accept
your wife’s recantation. I don’t find it credible.”


Sentencing and Appeal
      The trial court imposed a sentence of 25 years to life on the offense of sexual
penetration with a foreign object, based on the application of the One Strike law
(§ 667.61). As to the offense of aggravated mayhem, the court sentenced him to
life in prison with a possibility of parole, which sentence was to run consecutively
to the sentence on the other count.
      Appellant timely appealed, but his first appeal was dismissed in 2002
pursuant to appellant’s request and the remittitur was issued. However, on April 4,
2014, appellant moved to recall the remittitur, on the ground that he had received
ineffective assistance from his previous retained counsel, who had urged appellant
to abandon his appeal based on the mistaken belief that abandonment was
necessary to have DNA testing conducted in his case. We granted the motion to
recall the remittitur and reinstated appellant’s appeal.


                                    DISCUSSION
      An appellant may move for a new trial based on newly discovered evidence.
(§ 1181, subd. (8); People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) “‘“‘We
review a trial court’s ruling on a motion for a new trial under a deferential abuse-

                                          13
of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new
trial is so completely within that court’s discretion that a reviewing court will not
disturb the ruling absent a manifest and unmistakable abuse of that discretion.”’”
[Citation.]’ [Citation.]” (People v. McCurdy, supra, 59 Cal.4th at p. 1108.)
      “It has long been recognized that ‘the offer of a witness, after trial, to retract
his sworn testimony is to be viewed with suspicion.’ (In re Weber (1974) 11
Cal.3d 703, 722; see also People v. Minnick (1989) 214 Cal.App.3d 1478, 1481
(Minnick); People v. McGaughran (1961) 197 Cal.App.2d 6, 17 [‘It has been
repeatedly held that where a witness who has testified at a trial makes an affidavit
that such testimony is false, little credence ordinarily can be placed in the affidavit
. . . .’].)” (In re Roberts (2003) 29 Cal.4th 726, 742; see People v. Redmond (1966)
246 Cal.App.2d 852, 864-865.) “The role of the trial court in deciding a motion
for new trial based upon a witness’s recantation is to determine whether the new
evidence is credible, i.e., worthy of belief by the jury. That determination is made
after a consideration of all the facts pertinent to the particular issue.” (Minnick,
supra, 214 Cal.App.3d at p. 1482.)
      Here, the trial court did not abuse its discretion in finding the victim’s
recantation not credible, that is, not worthy of belief by the jury. Her testimony at
trial as to why she recognized appellant was compelling: she recognized his voice,
the way he moved, and his breathing. She heard him speak words to their baby
that he had spoken in the past to calm the baby, and saw that he was able to soothe
the baby back to sleep. She also saw his face when he was in the bathroom
cleaning up. Her post-trial claim that she falsely implicated him in this horrific
attack because she was jealous that he called his girlfriend his fiancée at his sister’s
wedding pales in credibility to her factually specific testimony at trial explaining
her certainty that he was her attacker. Further, as the trial court noted, it was

                                          14
highly unlikely that this attack, obviously intended to injure and personally
humiliate her, was committed by a random stranger. In short, the trial court did not
abuse its discretion in finding the recantation not credible.
       To the extent appellant contends that the trial court erred by not expressly
discussing the five factors listed in People v. Delgado (1993) 5 Cal.4th 312, 328,
for evaluating newly discovered evidence,4 the contention begs the question. Only
if the trial court determines that the recantation is credible must it consider the
other requirements for granting a new trial on the grounds of newly discovered
evidence. (See Minnick, supra, 214 Cal.App.3d at p. 1482 [“Once the trial court
has found the recantation to be believable, it must then decide whether
consideration of the recantation would render a different result on retrial
reasonably probable”].) Given that the court found that the recantation was not
credible (that is, not worthy of belief by a reasonable jury), the court necessarily
concluded that the recantation would not render a different result probable on
retrial. That determination was sufficient to deny the new trial motion.
       We reject appellant’s argument, made for the first time in his reply brief, that
the trial court erred in failing to take testimony from the victim regarding her
recantation. Relying on non-California authorities, appellant contends the trial
court should have conducted a hearing with live testimony to evaluate the
credibility of the recanting victim. California Supreme Court precedent rejects this
argument.


4
        “In ruling on a motion for new trial based on newly discovered evidence, the trial
court considers the following factors: ‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.”’”
(Delgado, supra, 5 Cal.4th at p. 328.)
                                               15
      In People v. Howard (2010) 51 Cal.4th 15 (Howard), the defendant moved
for a new trial based on new exculpatory evidence in the form of declarations from
witnesses, but the trial court found the declarations unworthy of belief and denied
the motion. The appellant argued on appeal that the trial court erred by failing to
obtain live testimony from the declarants before determining that their declarations
were not credible. The Supreme Court found no error, where at the hearing on the
motion for a new trial, “defense counsel made no attempt to produce those
witnesses, and submitted his motion on the declarations alone.” (Id. at p. 44; see
also People. v. Langlois (1963) 220 Cal.App.2d 831, 835 [rejecting contention that
trial court should have called witness to testify regarding post-trial recantation
where defendant made no request that witness be called to the stand].) The court
distinguished the case before it from People v. Hairgrove (1971) 18 Cal.App.3d
606, 609-611, in which “the affiant was present in court at the hearing on the new
trial motion, and the court not only refused to hear from him but advised him
against testifying.” (Howard, supra, 51 Cal.4th at p. 44.)
      As in Howard, defense counsel in this case explicitly submitted his motion
for a new trial on the pleadings. There is no indication from the record that the
victim was present at the hearing on the motion for a new trial, and defense
counsel did not offer to have her testify. Accordingly, we reject appellant’s
contention that the trial court should have heard testimony from the victim before
determining that her recantation was unworthy of belief.
      In sum, the trial court did not abuse its discretion in denying the motion for
new trial based on newly discovered evidence.




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                   DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            WILLHITE, Acting P.J.




We concur:




MANELLA, J.




COLLINS, J.
