Filed 9/24/13 P. v. Mendoza CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A136696
v.
SAMUEL MENDOZA,                                                          (Contra Costa County
                                                                          Super. Ct. No. 51205673)
         Defendant and Appellant.


         This is an appeal from judgment after defendant Samuel Mendoza was convicted
by a jury of three felony offenses — to wit, mayhem (count one), assault with a deadly
weapon (count two) and assault with force likely to produce great bodily injury (count
three), with enhancements for personal use of a deadly weapon (all counts) and infliction
of great bodily injury (counts two and three). The trial court thereafter denied
defendant’s motion for new trial, suspended imposition of sentence, and placed him on
formal probation for three years with one year to be spent in county jail. Defendant
challenges the judgment on the ground that the trial court erred by denying his motion for
new trial brought under Penal Code section 1181 upon his discovery of new evidence.1
We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND
         On May 31, 2012, an amended criminal information was filed charging defendant
with: (1) mayhem (count one) (§ 203), (2) assault with a deadly weapon (count two)

1
         Unless otherwise stated, all statutory citations herein are to the Penal Code.


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(§ 245, subd. (a)(1)), and (3) assault with force likely to produce great bodily injury
(count three) (§ 245, subd. (a)(4)). This information further alleged defendant personally
used a deadly weapon with respect to all counts, and inflicted great bodily injury with
respect to counts two and three. (§ 12022.7, subd. (a); § 12022, subd. (b)(1).)
       The charges and allegations set forth above stem from events occurring on
February 22, 2012, at a smog check station in Richmond owned and operated by the
victim, Cem Domac. Domac generally charged a customer $99.95 for a smog test, which
amount was payable after the test whether the customer’s vehicle passed or failed. If the
customer refused to pay for the test, Domac was authorized by law to issue a mechanic’s
lien and hold his or her vehicle until payment was made. For each customer, Domac
prepared a work order, signed by the customer prior to the smog test, setting forth this
information. Consistent with the work order, Domac generally did not provide the
customer a free retest if his or her vehicle failed. Occasionally, however, Domac would
make an exception to this rule for a repeat customer.

I.     The Prosecution’s Case.
       Relevant to this particular case, Domac testified that defendant signed a work
order for a smog test on February 22, 2012, at about 4:00 p.m. In doing so, defendant
was advised of his obligation to pay for the test, whether or not his vehicle passed, and
Domac’s right to issue a mechanic’s lien and hold his vehicle in the event he failed to
pay. Because defendant was a repeat customer, however, Domac agreed, and the work
order stated, that the price for the smog test would be just $80. Defendant’s vehicle
failed the test.
       Following the failed test, Domac offered defendant a free retest, but advised him
he still needed to pay for the first test. Defendant, however, did not want to pay for the
first test at that time, and requested to pay when he returned for the retest. Domac
declined defendant’s request and insisted he pay immediately. Defendant became angry,
refused to pay, and walked towards his vehicle with his keys in hand. In doing so,
defendant walked past Ruth Castro, also a repeat customer, who described defendant as
so angry his face was red. Defendant told her: “[Domac’s] charging me for the smog and

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it didn’t pass.” Castro, who was with her daughter, became scared and locked her car
doors.
         Domac, concerned defendant would leave without paying and annoyed by his
refusal to abide by the terms of the work order, got in his own vehicle and moved it to
where it was blocking defendant’s vehicle. Domac then exited his vehicle, walked to
defendant’s vehicle, and reached inside through the open driver-side window to take the
keys from the ignition. Although annoyed, Domac’s only intention was to take
defendant’s keys to prevent him from leaving. While he may have touched defendant
when reaching for the keys, Domac did not punch, grab or push defendant. In fact,
Domac acted so quickly to take the keys that defendant had no immediate reaction.
However, after Domac had walked back to his own vehicle and was opening the door to
sit inside, defendant approached him from behind. According to Castro, the men began
hitting each other, with defendant acting as “aggressor” and Domac defending himself.
Defendant then reached into his back pocket and retrieved something, later identified as a
box cutter, which he swung at Domac’s forehead, cutting him “terribly.”
         Domac, bleeding profusely from the wound, used his shirt to stop the blood and
ran to the bathroom as defendant fled toward the street. Once in the bathroom, Domac
could see the skin on his face was cut “open” in an area ten inches long by half an inch
wide. Domac called 911. He was then taken to the hospital, where his wound required
ten stitches and 15 staples. He now has permanent scarring and suffers ongoing pain and
discomfort.

II.      The Defense Case.
         Defendant testified in his own defense, disputing several aspects of Domac’s
version of events. Defendant explained that Domac first told him his vehicle passed the
test, before then telling him the vehicle failed and that he nonetheless had to pay $80.
The men had an argument and Domac, after refusing defendant’s request for a free smog
retest or, alternatively, to pay half the $80 price immediately and half at the time of the
retest, said a bad word in English and walked out of his office. Defendant, believing
Domac did not want to reach an agreement on payment, returned to his own vehicle,

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passing Castro on the way. Once in his vehicle, defendant looked back while starting to
reverse, at which time he heard a honk and saw that Domac had moved very quickly to
block him with his own vehicle. Domac then left his vehicle and approached defendant’s
vehicle, opening the door and grabbing defendant while snatching his keys from the
ignition. Defendant begged Domac to release him, but Domac refused and dragged him
from the vehicle by his shirt. At this point, defendant testified that he cut Domac once
with a box cutter that he carried in his vehicle for his construction job, solely in order to
free himself.2
        Defendant disputed Domac’s and Castro’s testimony that he pulled the box cutter
from his back pocket and stabbed Domac by Domac’s vehicle door after following
Domac back to his vehicle. Defendant insisted, rather, that the men remained at
defendant’s vehicle and that he took the cutter from inside his car. Defendant
acknowledged running away as Domac ran inside bleeding, explaining he was scared
Domac would return with a stick. Eventually, defendant, who was still scared, called
911.

III.    Rebuttal Testimony.
        Officer Giulia Colbacchini questioned both men after the incident. Defendant
acknowledged refusing to pay for the failed test, and grabbing his keys to return to his
vehicle. Domac used his own vehicle to block defendant from leaving, then walked to
defendant’s window, grabbed him by the shirt and took his keys before walking away.
At this point, defendant told Officer Colbacchini that he grabbed the box cutter, left his
vehicle, walked up to Domac and cut him. Defendant then took off after seeing Domac
bleeding profusely. Defendant explained that he was intimidated by Domac, who was
significantly taller (six-foot-five compared to five-foot-two), and had acted in self
defense.



2
        Defendant said he was aiming for Domac’s hand when he instead cut Domac’s
face.


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       Domac, in turn, admitted to Officer Colbacchini that he shoved defendant to move
him aside in order to take his keys from the ignition. Domac did not tell the officer that a
struggle occurred by his own vehicle before defendant cut him. Nor did Domac tell the
officer that he had offered defendant a special price and a free retest. However, like
defendant, Domac told the officer that defendant left his own vehicle after Domac took
his keys, walked up to Domac and cut him. In fact, Officer Colbacchini acknowledged
both Domac’s version and defendant’s version of the incident were generally consistent,
including the fact that “defendant walk[ed] up to Mr. Domac and then cut[] him on the
face” before “fleeing the scene.”

IV.    The Verdict and Sentencing.
       On June 7, 2012, a jury found defendant guilty of all counts and enhancements.
Defendant subsequently moved for a new trial based on newly discovered evidence.
Specifically, this evidence, revealed by Domac to the prosecutor after being advised of
the verdict, was that Domac gave Castro a free smog test the day after defendant cut him.
As discussed in more detail below, the trial court denied his motion after a full hearing.
The trial court then suspended imposition of sentence based upon a finding of the unusual
circumstance of defendant’s lack of criminal history. (Cal. Rules of Court, rule 4.413.)
The trial court placed defendant on formal probation for three years with one year to be
spent in county jail. In addition, the trial court awarded defendant 192 days of custody
credit and 192 days of conduct credit, ordered him to pay $6,512 as direct victim
restitution, and imposed various other fees and assessments. This timely appeal
followed.

                                      DISCUSSION
       Defendant challenges on appeal the trial court’s denial of his motion for new trial
based on newly discovered evidence. (§ 1181, subd. (8).)3 Defendant contends the trial


3
        “When a verdict has been rendered or a finding made against the defendant, the
court may, upon his application, grant a new trial, in the following cases only: [¶] . . .
[¶] (8) When new evidence is discovered material to the defendant, and which he could

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court’s ruling violated his constitutional due process right to a fundamentally fair trial
under the Fifth and Fourteenth Amendments of the United States Constitution and Article
I of the California Constitution.
       The following well-established legal principles guide our review. “In ruling on a
motion for new trial based on newly discovered evidence, the trial court considers the
following factors: ‘ “1. That the evidence, and not merely its materiality, be newly
discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render
a different result probable on a retrial of the cause; 4. That the party could not with
reasonable diligence have discovered and produced it at the trial; and 5. That these facts
be shown by the best evidence of which the case admits.” ’ [Citations.]” (People v.
Delgado (1993) 5 Cal.4th 312, 328; see also People v. Soojian (2010) 190 Cal.App.4th
491, 512.) “ ‘ “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. Delgado, supra, 5
Cal.4th at p. 328.)
       Here, defendant’s motion for new trial was based on evidence, revealed by Domac
to the prosecutor after trial, that, the day after the incident, Castro returned to the store for
a smog check and to see how Domac was doing. Domac acknowledged giving Castro a
free smog test, charging her for only the DMV and smog certificate fees. Domac denied,
however, that the free smog test was in exchange for Castro’s agreement to testify in his
favor at trial. The prosecutor immediately notified defense counsel regarding the details
of this conversation.
       In denying defendant’s new trial motion, the trial court found that the newly-
offered evidence failed to raise a significant doubt as to Castro’s credibility because her
trial testimony, given after she received the free test, was “substantially similar” to her

not, with reasonable diligence, have discovered and produced at the trial. . . .” (§ 1181,
subd. (8).)


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statement to police on the day of the incident before she received the free test. As such,
the trial court found, there was no reasonable probability the new evidence would lead to
a new outcome on retrial. For reasons to follow, we agree with the trial court’s ruling.
       As an initial matter, we are doubtful the fact of Castro’s free smog test the day
after the incident actually constitutes “newly discovered evidence” within the meaning of
section 1181. The defense team, which conducted its own pretrial investigation shortly
after the incident, was aware during trial that Castro was one of Domac’s repeat
customers, and that Castro returned to Domac’s smog station the day after the incident.
Specifically, Castro acknowledged to the defense that she had been to the smog station
“on multiple occasions,” that she remained with Domac after he was stabbed to make
sure he was okay and to “see if there was anything I could do to testify or anything,
because I couldn’t just leave him there alone,” and that she then returned the next day to
complete the smog test that she had been waiting for at the time of the incident and to
check on him.4 Given these known facts, the defense team clearly was alerted to the
possibility of bias between Castro and Domac, and had an opportunity at trial to
investigate the extent of it before the jury.5 (People v. Hall (2010) 187 Cal.App.4th 282,
299 [no error to deny motion for new trial where the “new evidence” was “available . . .
at the time of trial and [defendant] could have discovered and produced the evidence if he
had exercised reasonable diligence”].)
       Denying the discoverability of the evidence of the free test, defendant correctly
notes that the trial court sustained on relevance grounds the prosecutor’s objection to
defense questioning regarding how many times after the incident Castro talked to Domac


4
       The record suggests that, when the stabbing occurred, Castro had been waiting to
have her former boyfriend’s truck tested, but that, due to the stabbing, the truck was not
tested. As such, she returned the next day to ask Domac “how he was feeling and when
was he going to do the job on my truck.”
5
       Indeed, counsel was aware Domac had given defendant a special price of $80 for
the smog test because he was a repeat customer, and that he sometimes gave repeat
customers free retests if their vehicle failed. As such, defense counsel should have been
aware of the possibility that Domac would make special price concessions for Castro.


                                             7
after Castro had already testified that she visited him the day after the incident to see how
he was doing. However, defendant ignores that the trial court in no way interfered with
his counsel’s continued questioning of Castro about her interactions with Domac the day
after the incident, with counsel first asking her, “When you saw [Domac], you just asked
him how he was doing,” and then asking, “So when you saw him again, did you and he
talk about this incident . . . ?” At this point, defense counsel indicated she had no further
questions, without raising a single question about the terms of the smog test that Castro
had already acknowledged receiving that day.6 On this record, we cannot agree with
defendant the trial court prevented him from discovering the fact of Castro’s free smog
test.
        In any event, having considered the record in this case as a whole, we agree with
the trial court that admission of evidence of the free smog test would not render a
different result reasonably probable for defendant. Even accepting the fact that Castro’s
receipt of a free test from Domac following the incident is suggestive of bias, as the trial
court pointed out, it nonetheless remains true that Castro told police before the free test
substantially the same version of events that she told on the witness stand after the free
test. As such, the trial court could have reasonably concluded that evidence of the free
test did not significantly contradict or diminish the probative value of Castro’s testimony
regarding defendant’s guilt, and did not significantly improve the probative value of
defendant’s uncorroborated testimony that he stabbed Domac in order to escape as
Domac was holding him down at his own vehicle. (People v. Delgado, supra, 5 Cal.4th
at p. 329 [“the trial court may consider the credibility as well as materiality of the
evidence in its determination [of] whether introduction of the evidence in a new trial
would render a different result reasonably probable”]; People v. Beyea (1974) 38
Cal.App.3d 176, 202.) Further bolstering our conclusion in this regard is the fact that
defendant told Officer Colbacchini just after the incident substantially the same thing that
Castro and Domac told the officer just after the incident – to wit, that he followed Domac
6
      To the first question Castro responded “Yes,” and to the second question she
responded “No.”


                                              8
back to his vehicle, where he then stabbed Domac before fleeing. As such, contrary to
the cases relied upon by defendant where the appellate court reversed a trial court’s
denial of a new trial based upon newly discovered evidence, the new evidence before us
neither proves defendant’s innocence nor “destroys the credibility” of the sole percipient
witness. (Cf. People v. Randle (1982) 130 Cal.App.3d 286, 293 [prejudicial error to deny
motion for new trial where the newly proffered evidence “does more than merely
impeach [the only percipient witness other than the defendant] — it tends to destroy her
testimony by raising grave doubts about her veracity and credibility”]; People v. Huskins
(1966) 245 Cal.App.2d 859, 862-863 [while “[o]rdinarily, evidence which merely
impeaches a witness is not significant enough to make a different result probable,” it was
error to deny a motion for new trial in a child sexual abuse case where the new evidence
eviscerated the credibility of “the sole adult witness connecting the defendant with the
charged acts”].)7
       Thus, in summary, even if the evidence of Castro’s receipt of a free smog test
from Domac the day after these crimes could be considered “new” for purposes of section
1181, subdivision (8), defendant has nonetheless failed to demonstrate that admission of
this evidence would likely have led to a different result. Under these circumstances, the
trial court acted well within the scope of its broad discretion in finding that the proffered



7
        Defendant also directs us to case law holding that, even in the absence of a
defendant’s due diligence in discovering new evidence, “a motion for a new trial should
be granted when the newly discovered evidence contradicts the strongest evidence
introduced against the defendant.” (People v. Martinez (1984) 36 Cal.3d 816, 823 [new
trial should have been granted where the proffered new evidence “reopens the critical gap
in the prosecution’s chain of proof. If the jurors even found a reasonable possibility that
[the newly proffered] testimony was true, it is unlikely that they would find defendant’s
guilt proved beyond a reasonable doubt”]; see also People v. Soojian, supra, 190
Cal.App.4th at p. 516 [“[People v.] Martinez is a very limited exception to the general
diligence requirement found in section 1181”].) However, for all the reasons we just
explained, we are not convinced in this case the evidence regarding Castro’s receipt of a
free smog test meets this high standard. Simply put, the evidence does not “directly
contradict” Castro’s trial testimony, whatever its strength in proving defendant’s guilt.


                                              9
new evidence lacked sufficient materiality to affect the outcome of this case on retrial.
(See People v. Delgado, supra, 5 Cal.4th at p. 328.)
       Accordingly, the trial court’s decision to deny defendant’s new trial motion must
be affirmed.

                                     DISPOSITION
       The judgment is affirmed.



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




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