Filed 6/18/15 P. v. Mata CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066531
         Plaintiff and Respondent,
                                                                             (Super. Ct. Nos. VCF245876,
                   v.                                                         VCF258951, VCF271541)

MARK ANTHONY MATA,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
         Peter J. Boldin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Poochigian, J. and Peña, J.
                                     INTRODUCTION
       A jury convicted appellant Mark Anthony Mata of felony driving under the
influence, felony driving with a blood alcohol concentration of .08 or higher, and
misdemeanor driving on a suspended license. He was arrested following a minor vehicle
accident. Appellant was with his brother, David Mata, in David’s BMW when the
accident occurred. At trial appellant argued the state failed to prove he was the driver.
       On appeal appellant raises four arguments. First, he contends the trial court
violated his constitutional rights when it refused to instruct the jury regarding David’s
failure to testify after David invoked his Fifth Amendment privilege against self-
incrimination outside the jury’s presence.
       Second, he asserts the trial court abused its discretion when it denied a motion for
new trial based on newly discovered evidence after David provided an unsworn letter
indicating he drove the BMW on the night in question and appellant was a passenger.
       Third, he argues his trial counsel rendered prejudicially ineffective assistance
because the defense moved an unredacted arrest report into evidence which mentioned
appellant’s five previous DUI arrests. During deliberations, the jury sent a note to the
judge asking if it could use the five previous DUI arrests as evidence. The court
instructed the jury it could not do so.
       Finally, he maintains the cumulative effect of the trial errors violated his right to
due process.
       Based on the record, we find no prejudice stemming from defense counsel’s
actions and we determine appellant’s remaining contentions are unpersuasive. However,
a clerical mistake appears in the amended abstract of judgment, which we will order
corrected on our own motion. We otherwise affirm.




                                              2.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Appellant does not challenge the sufficiency of the evidence supporting his
convictions. Set forth below are a summary of the trial facts taken in the light most
favorable to the judgment and relevant to the issues on appeal.
I.     Trial Evidence.
       A.     The accident.
       On August 5, 2012, a car accident occurred in the City of Visalia on Goshen
Avenue at approximately 11:30 p.m. Stephanie Saesee’s vehicle was struck by a dark
colored BMW. Saesee immediately stopped and two men exited the BMW, but she did
not see which one had been driving. One of the men wore a white shirt and the other
wore an orange shirt. Saesee waited in her vehicle and observed the men “running back
and forth.”
       Before the police arrived on scene, another vehicle drove up and a lady exited.
The man wearing white entered this new vehicle, which drove away. Both the lady and
the man in orange remained standing near Saesee’s vehicle.
       B.     The eyewitness.
       On August 5, 2012, David Martin was in his employer’s parking lot when he heard
a car accident. A black vehicle came to a skidding stop in front of his place of work.
Martin immediately went to observe and saw two men exit the black vehicle. One was
wearing an orange or red shirt, and the other wore a white tank top. Martin identified the
driver as the man wearing the white top.
       The man in orange yelled at Martin to contact law enforcement, which Martin did.
However, the man wearing white then told him to not do so, and the man in orange
agreed and told Martin to not contact them. Martin stayed on the telephone with 911 and
observed the two men running back and forth from their vehicle to a tree emptying beer
bottles. He saw the two men call someone, and then a short time later a dark colored



                                            3.
SUV arrived. A lady exited the SUV and the driver, the man wearing the white shirt,
jumped into the passenger side of the SUV and it drove away.
       Officers from the Visalia Police Department arrived and took Martin’s statement.
Martin did not see the faces of the two men and he could only identify them based on
their clothing. While speaking with an officer, the man in the white shirt returned to the
area walking on foot. Martin was positive it was the same man who drove the BMW and
left in the SUV. The man returned about 30 minutes after he left.
       C.     Officers’ testimony.
              1.     Officer Norman.
       Visalia Police Department Officer Amerie Norman was dispatched to the accident
scene. Norman made contact with a male and a female who were standing in front of the
BMW but closer to Saesee’s vehicle. The male was appellant’s brother, David Mata, and
the female was appellant’s mother. David was wearing an orange T-shirt, and he
appeared intoxicated due to red, watery eyes, a strong odor of alcohol emitting from his
person, and slurred speech.
       Norman asked David who was driving, and he pointed to his mother. Appellant’s
mother informed Norman that she was the driver. Officer Dewitt arrived on the scene
and Norman asked him to interview appellant’s mother further while Norman
interviewed Martin. While interviewing Martin, appellant returned to the scene walking
on foot with his girlfriend. Appellant was wearing a white tank top and blue jeans, and
he returned about 15 minutes after Norman arrived at the scene. Martin informed
Norman that appellant was the person who had exited the driver’s seat of the BMW.
       Norman interviewed appellant, who appeared intoxicated due to a very strong odor
of alcohol emitting from his person, red watery eyes, and slurred speech. Norman asked
appellant for his name, which appellant gave. After giving his name, appellant stated, “I
was the driver. I was driving that car.” Appellant made his admission voluntarily and



                                            4.
without any prompting. Norman arrested appellant for driving under the influence and
for leaving the scene of the accident.
       After he was placed in a patrol vehicle and read his Miranda1 rights, appellant
stated he was not driving. Norman described appellant’s demeanor as very “nonchalant”
when appellant was first contacted and admitted to driving. Appellant’s demeanor
changed after he was arrested, becoming very agitated and upset.
              2.     Officer Dewitt.
       Visalia Police Department Officer Jason Dewitt was dispatched to the accident
scene and he met with Lisa Pacheco, appellant’s mother.2 Dewitt spoke with Pacheco in
English, and believed she spoke enough English to communicate effectively. He said she
understood every question he asked and agreed that she answered everything clearly and
concisely.
       Pacheco said she was the driver of the BMW, which Dewitt did not believe
because she could not provide any factual details regarding the accident. Pacheco stated
appellant was the driver after Dewitt advised her that he did not believe her and informed
her of the ramifications of lying to a police officer during an investigation. She identified
appellant using his full name, including middle name, and she gave his date of birth.
When asked why she allowed her son to leave the scene of the accident, Pacheco stated
she did not want appellant to get into trouble. She contacted appellant on her cell phone,
asking him to return to the scene, which he did.
       Dewitt discovered several beer bottles near a tree. They were still full of liquid. A
floor mat from the BMW was also lying there, along with some baby wipes and a white
T-shirt.



1      Miranda v. Arizona (1966) 384 U.S. 436.
2      In the record, Pacheco is sometimes referred to as Lisa Angeles.


                                             5.
       D.     Toxicology.
       Appellant’s blood was drawn by a phlebotomist later that same night at
approximately 1:10 a.m. Appellant’s blood was later tested by a toxicologist, which
showed a blood alcohol concentration of .16 percent. The toxicologist opined that
appellant was too intoxicated to safely operate a motor vehicle.
       E.     Appellant’s mother.
       Pacheco said she understands English “a little bit” but not well enough to speak in
court. Appellant, who is her son, was at her house on the night of the accident. She saw
appellant leave with her other son, David. Appellant wore a “red and blue” sweater with
“blue or green stripes.” Later that night appellant telephoned her and said they had an
accident. Appellant asked her to drive to the scene, which she did along with appellant’s
girlfriend.
       At the accident scene, she testified appellant told her David had been driving. On
direct, she said that appellant left with his girlfriend in the SUV in order to tell Pacheco’s
husband where she was because Pacheco left without saying anything. On cross-
examination, she testified appellant did not leave the scene but “went a little bit further
ahead” to urinate. When asked about her testimony regarding appellant leaving with his
girlfriend in the SUV, Pacheco testified that appellant came back immediately and he was
already walking back when she called him.
       Pacheco told the police officer that she had been driving because David asked her
to do so. She became scared once the officer said they knew the truth. She testified
initially that she did not tell Dewitt anything when he asked her if appellant was the
driver. However, she later claimed the officer never asked her who was driving.
       F.     Defense evidence.
              1.     Maira Vasquez.
       Maira Vasquez, a friend of Pacheco’s, was at Pacheco’s house at approximately
10:30 p.m. on the night of the accident. Everyone was drinking. Appellant wore a long-

                                              6.
sleeved red shirt with stripes. David wore an orange-colored shirt. She observed
appellant and David leave the party. David got into the driver’s seat and appellant got
into the passenger seat. She did not see them change their shirts before leaving.
              2.     Benito Garcia.
       Benito Garcia was at Pacheco’s house on the night of the accident. Appellant
wore a red sweater with blue stripes. David wore an orange shirt. He saw appellant and
David leave the party around 11:00 or 11:30 p.m. David got into the driver’s seat and
appellant was the passenger.
              3.     Mabely Ramirez.
       Mabely Ramirez, appellant’s girlfriend, was at Pacheco’s house on the night of the
accident. Everyone had been drinking during a barbecue, which started around 2:00 or
3:00 p.m. People started drinking around 5:30 p.m. or so after the meal. Appellant wore
a long-sleeved red shirt with dark blue stripes and David wore an orange shirt. She did
not see either of them change shirts. She observed them leave the party, with David
getting in the driver’s side and appellant getting into the passenger side. She heard David
say he wanted to drive because it was his new car. She testified that she did not want
them to leave because they were not okay to drive.
       About five minutes later, Ramirez received a telephone call from appellant saying
an accident occurred. She drove to the scene with appellant’s mother, which took about
five minutes. At the accident scene, she noticed neither appellant nor David were
wearing their shirts. She indicated both were bare chested.
       She left with appellant and drove back to Pacheco’s house to tell Pacheco’s
husband what happened. Pacheco’s husband drove them back to the accident scene,
dropping them off at an unknown distance from the scene so they walked. She testified
appellant did not want to leave the accident scene but his mother agreed to take the blame
for the accident. She overheard David tell his mother to take the blame. She denied that
appellant left the accident scene to avoid getting into trouble.

                                              7.
II.    Information and Sentencing.
       A.        Information.
       The District Attorney of Tulare County filed an information charging appellant
with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1);
driving while having a .08 percent or higher blood alcohol concentration (§ 23152, subd.
(b); count 2); leaving the scene of an accident (§ 20001, subd. (a); count 3); and
misdemeanor driving on a suspended license from a prior conviction (§ 14601.2, subd.
(a); count 4).
       As to counts 1 and 2, it was further alleged appellant had suffered five prior DUI
convictions (Veh. Code, §§ 23550, 23550.5) and his concentration of blood alcohol was
.15 percent by weight or more (Veh. Code, § 23578). As to counts 1 through 3, it was
further alleged appellant had suffered four previous felony convictions (Pen. Code,
§ 667.5, subd. (b)).
       B.        Verdicts and sentencing.
       The jury found appellant guilty on counts 1 and 2. Count 4 was bifurcated and
appellant entered a plea of guilty. The trial court dismissed count 3. Following the jury
trial, the court found the prior convictions to be true.
       For count 2, appellant was sentenced to eight months in state prison to be served
consecutive to his sentence in Tulare County Superior Court case No. VCF245876.3 For
count 1, appellant was sentenced to state prison for two years, which was stayed pursuant
to Penal Code section 654.4 For count 4, appellant was sentenced to 185 days in custody,

3      In Tulare County Superior Court case No. VCF245876 (violation of probation),
appellant was sentenced to an aggregate term of four years in state prison. In Tulare
County Superior Court case No. VCF258951 (violation of probation), appellant was
sentenced to two years in state prison to be served concurrently to case VCF245876.
These companion cases were consolidated with the present appeal.
4      The court’s oral pronouncement of judgment transposed the sentence for counts 1
and 2. It appears the court intended to sentence appellant in accordance with the
probation officer’s recommendation, which was reflected in the abstract of judgment.

                                              8.
which was deemed already served. Including the companion cases, appellant received a
total aggregate sentence of four years eight months in state prison.
                                       DISCUSSION

I.     The Trial Court did not Err when it Refused to Instruct the Jury with
       CALJIC No. 2.25 or Similar Language.
       Appellant contends the trial court erred when it refused to instruct the jury using
CALJIC No. 2.25, or similar language, after David invoked his Fifth Amendment
privilege against self-incrimination. Although the jury did not see or learn that David
invoked his Fifth Amendment privilege, the jury saw that David was called to the witness
stand and then the trial resumed without his involvement or an explanation of his
absence. Appellant maintains that the trial court’s error was prejudicial and requires
reversal.
       A.     Background.
       Prior to the defense starting its case, and outside the presence of the jury, the court
asked if appellant’s brother was going to testify in the matter. David’s attorney indicated
that it was still “undecided” at that time. At the next court appearance two days later,
also outside the presence of the jury, David’s attorney announced that David had decided
to testify. The defense started its case-in-chief, and called Vasquez and Garcia to testify.
       At the conclusion of Garcia’s testimony, appellant’s counsel called David to
testify. The court immediately excused the jury, indicating it had to resolve a legal issue
before taking the next witness. Outside the presence of the jury, David’s attorney
indicated David was “really unsure” about testifying and asked David if he wished to
invoke his Fifth Amendment rights. David indicated that he wanted to invoke those
rights and David’s attorney confirmed to the court that David would not testify. The
following exchange took place:

             “THE COURT: Okay. That’s it. Thank you. [¶] Who is your next
       witness?


                                              9.
               “[DEFENSE COUNSEL]: I don’t have any further witnesses. I’m
       assuming that -- I’m sorry. We have one more witness. But are we going
       to at this time inform the jury of [David’s] refusal --

              “THE COURT: It’s not relevant.

              “[DEFENSE COUNSEL]: It is. It’s a fact.

              “THE COURT: It’s not a fact.

              “[DEFENSE COUNSEL]: The fact that he didn’t testify. They
       have a right to know that I attempted to call him and he invoked.

              “THE COURT: No, that’s not evidence. Because if I told them that,
       then I would have to tell them in the very next sentence you’re not to
       consider that for any reason whatsoever.

              “[DEFENSE COUNSEL]: And that is actually a jury instruction
       that I’m asking for.

              “THE COURT: It’s not evidence.”
       The jury was then called back into the courtroom and the defense called its last
witness, Ramirez. After the jury retired to deliberate, and outside the presence of the
jury, defense counsel noted for the record it had requested a jury instruction regarding
David’s refusal to testify. He stated he called David while the jury was present so he
believed it was proper for the court to instruct the jury. The court confirmed that the
defense had submitted CALJIC No. 2.25 and stated it denied the request because the
exercise of the constitutional privilege occurred outside the jury’s presence. The court
also commented that the jury had not seen the earlier discussions with David’s counsel
about whether David would testify or not.
       B.     Standard of review.
       Evidence Code section 913 provides that if a privilege is exercised not to testify,
“no presumption shall arise” (id., subd. (a)) because of that exercise and no inference
may be drawn from that exercise regarding the witness’s credibility “or as to any matter
at issue in the proceeding” (id., subd. (b)).



                                                10.
       Evidence Code section 913 “neither envisions nor specifies that the privilege be
invoked in the presence of the jury.” (People v. Johnson (1974) 39 Cal.App.3d 749,
759.) Our Supreme Court has noted it is better for a trial court to require the exercise of a
privilege outside the jury’s presence. (People v. Frierson (1991) 53 Cal.3d 730, 743.)
This avoids any potentially prejudicial impact because allowing a witness to take the
stand to exercise a privilege before the jury only invites the jury to make improper
inferences. (Ibid.)
       CALJIC No. 2.25 states: “When a witness refuses to testify to any matter, relying
on the constitutional privilege against self-incrimination, you must not draw from the
exercise of this privilege any inference as to the believability of the witness [or] [whether
the defendant is guilty or not guilty] [or] [any other matter at issue in this trial.]”5
       On appeal, we review de novo the trial court’s actions regarding jury instructions.
(People v. Waidla (2000) 22 Cal.4th 690, 733.)
       C.     Discussion.
       Our Supreme Court has analyzed and rejected the same arguments which appellant
raises here. In People v. Richardson (2008) 43 Cal.4th 959 (Richardson) the defendant
was convicted of murder and sentenced to death. The defense had attempted to compel
the testimony of Steven Brown, who was in custody for the same murder. The defense
argued that Brown alone committed the crime. (Id. at p. 971.) Outside the presence of
the jury, Brown invoked his Fifth Amendment privilege against self-incrimination. (Id.
at p. 1009.) Defense counsel asked the trial court to instruct the jury that it was prevented
from calling Brown because he asserted the privilege. (Id. at p. 1010.) The trial court




5      CALJIC No. 2.25 (Spring 2015 ed.) is titled: “Refusal Of Witness To Testify—
Exercise Of Privilege Against Self-Incrimination.” For some unknown reason, appellant
incorrectly states this is titled: “Cautionary Instruction When Witness Exercises Privilege
Outside of the Presence of the Jury.”


                                              11.
declined to do so after the prosecution argued such an instruction was precluded by
Evidence Code section 913.
       On appeal, the Richardson court approved the practice of having Brown exercise
his privilege outside the jury’s presence. Richardson noted the trial court’s approach
avoided prejudicial impact. (Richardson, supra, 43 Cal.4th at p. 1011.) The Supreme
Court also found no error in the failure to instruct the jury that Brown did not testify
because of his assertion of the Fifth Amendment. (Ibid.) To the contrary, giving such an
instruction “may have invited the jury to infer that Brown had invoked the privilege
because he was guilty of the offense.” (Id. at pp. 1011-1012.) Richardson held that such
an inference was impermissible. (Id. at p. 1012.)
       Here, the present matter is not factually distinguishable from Richardson, which
controls. As such, the trial court properly refused to instruct the jury regarding David’s
failure to testify. Such an instruction may have invited the jury to infer David invoked
the privilege because he was guilty of the offense. Such an inference is impermissible.
The trial court did not err. (Richardson, supra, 43 Cal.4th at pp. 1011-1012.)
       Appellant cites Bowles v. United States. (D.C. Cir. 1970) 439 F.2d 536 (Bowles), a
case which does not assist him. In Bowles, the trial judge refused to permit the defendant
to call a witness to the stand. Outside the jury’s presence the trial court determined the
witness would refuse to answer questions under the Fifth Amendment. The defense
argued the jury should be informed the witness invoked his privilege and it requested “a
missing witness” instruction. (Id. at p. 541.) The trial court declined to so instruct the
jury and ordered counsel to not mention the witness’s invocation of the Fifth
Amendment. (Ibid.)
       On appeal, the Bowles court approved of the trial court’s actions, noting the jury
might draw inferences from the witness’s invocation of the privilege. Bowles stated that
“[t]he jury may think it high courtroom drama of probative significance when a witness
‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by

                                             12.
the absence of any requirement that the witness justify his fear of incrimination and by
the fact that it is a form of evidence not subject to cross-examination.” (Bowles, supra,
439 F.2d at pp. 541-542.) Bowles also determined the jury should not be informed that a
witness has exercised his constitutional privilege because that is a fact which the jury is
not entitled to rely upon in reaching its verdict. (Id. at p. 542.) Bowles, however, in
dicta, noted the trial judge could have properly given a neutralizing instruction to reduce
any inferences the jury might have drawn from the witness’s absence. Bowles stated it
would have been error for the trial court to refuse such an instruction but no error was
present because counsel did not make such a request. (Ibid.)
       Here, Bowles was similar to Richardson in its reasoning. As in Richardson,
Bowles noted the dangers associated with a jury learning a witness has invoked the Fifth
Amendment privilege. The dicta in Bowles regarding a possible neutralizing instruction
for a witness’s absence is neither binding on this court nor sufficient to overcome the
holding of Richardson. Bowles does not establish error.
       Under Richardson, the trial court did not err when it refused to instruct the jury
with CALJIC No. 2.25 or similar language. Appellant is not entitled to reversal.6

II.    The Trial Court did not Abuse its Discretion Regarding the Motion for New
       Trial.
       Appellant argues the trial court erred and violated his various constitutional rights
when it denied his motion for a new trial based on newly discovered evidence.
       A.     Background.
       Following his convictions, appellant filed a motion for new trial pursuant to Penal
Code section 1181. Attached to the motion was a notarized but unsworn letter signed by
David which stated the following:



6      Because appellant cannot establish error, we will not address his contentions that
any error was prejudicial. !(AOB 32-36)!


                                             13.
              “My name is David Mata, I was the driver of the Black 2003 BMW
      that was involved in an accident on Goshen Ave on Aug. 5, 2012 approx
      [sic] at 11:30 pm. The vehicle was occupied by myself as the driver and
      my brother Mark Mata as the passenger.

             “At the time I did not want to take full responsibility because I’ve
      been trying to get my license back and I knew if I said I was the driver it
      would affect me.

             “Now looking at the whole situation I’m taking the full
      responsibility, I was the driver and I’m making this statement because it is
      the right thing to do! My brother Mark was the passenger, he was not
      driving the vehicle during the time of this accident he is innocent.”
      The prosecution filed an opposition. After hearing argument, the trial court made
the following comments:

             “… I vividly recall the testimony at the trial. And it was after
      hearing all the testimony that it was my distinct impression that the Mata
      family did just about everything they could to protect the defendant in this
      case after charges were filed, and even during the time of the accident. We
      have a reporting party, a noninterested reporting party, who the description
      he gave is the person who was driving the vehicle matched the description
      of Mr. Mata, not his brother.

             “Mr. Mata’s mother came in. According to Officer Dewitt, the
      mother at the time said the defendant was driving and then changed that
      testimony and testified differently at trial.

              “This motion for new trial, in the Court’s opinion, is nothing more
      than a family trying to get a second bite at the apple, so to speak. They
      tried the case first without the brother testifying. That didn’t work. So now
      they come in a second time and say well, wait a minute, now the brother
      will testify, so we should get a second try at a trial. And that isn’t going to
      go by this judge. I’m not buying that for a second.”
      Appellant’s counsel argued misidentification occurred because appellant and
David look so much alike as to height, build and color, and it was very dark when the
accident occurred. The following exchange took place:

            “THE COURT: We have conflicting and impeachable testimony by
      the mother as to what she initially testified -- initially told the officer versus



                                             14.
       what she said here at trial. As I recall, she told the officer at the time that
       the son was driving.

              “[DEFENSE COUNSEL]: Again, we think the inverse conclusion
       could be drawn that she was attempting to protect the other son, not
       necessarily my client.

              “THE COURT: As I said, I’ve stated my reasons. So the motion for
       new trial is denied.”
       B.     Standard of review.
       The law looks with disfavor upon a motion for new trial based on newly
discovered evidence because the litigation must end at some point. (People v. Williams
(1962) 57 Cal.2d 263, 274.) On appeal, a deferential “‘abuse-of-discretion standard’” is
used to review a trial court’s ruling on a motion for a new trial. (People v. Thompson
(2010) 49 Cal.4th 79, 140.) The ruling will not be reversed “‘“absent a manifest and
unmistakable”’” abuse by the trial court. (Ibid.) The trial court retains complete
discretion when ruling on such a motion. (Ibid.)
       The defendant has the burden on such a motion to establish it is “probable that at
least one juror would have voted to find him not guilty had the new evidence been
presented.” (People v. Soojian (2010) 190 Cal.App.4th 491, 521.)
       C.     Analysis.
       Appellant contends David’s notarized letter meets the Supreme Court’s five
requirements for the granting of such a motion on newly discovered evidence.
Respondent disagrees, arguing the trial court had the discretion to find David’s letter not
credible and cumulative to the trial evidence.
       Penal Code section 1181, subdivision 8, permits a trial court to grant a new trial
for newly discovered evidence that is material to the defendant, and which could not have
been discovered and produced at trial with reasonable diligence. The Supreme Court has
set forth the following five factors for a trial court to consider: (1) whether the evidence,
and not just its materiality, is newly discovered; (2) whether the evidence is cumulative;


                                              15.
(3) whether the evidence will render a different result probable on retrial; (4) whether the
party could not have discovered and produced the evidence at trial with reasonable
diligence; and (5) whether the facts are shown by the best evidence. (People v. Delgado
(1993) 5 Cal.4th 312, 328 (Delgado).)
       A trial court should grant a motion for new trial when the newly discovered
evidence contradicts the strongest evidence introduced against the defendant. (Delgado,
supra, 5 Cal.4th at p. 329.) However, a trial court is permitted to consider the credibility
and the materiality of the new evidence when determining whether its introduction in a
new trial would render a different result reasonably probable. (Ibid.)
       Delgado, supra, 5 Cal.4th 312, is instructive regarding the deference given to the
trial court in weighing the credibility and impact of the newly offered evidence against
the evidence produced at trial. In Delgado, the defendant was convicted of second degree
murder and misdemeanor child abuse stemming from the death of his girlfriend’s minor
daughter and injuries to her minor son. The girlfriend gave conflicting accounts to the
police regarding what happened on the night in question, and her conflicting statements
continued in her testimony at the preliminary hearing, at trial, and ultimately in a
declaration she submitted at the hearing for the defendant’s motion for new trial. (Id. at
p. 316.) Her initial accounts to police indicated she had no involvement in her children’s
injuries, but her subsequent accounts tended to implicate either herself or her estranged
husband, and exculpate the defendant. In her declaration for a new trial, the girlfriend
indicated she had beaten her daughter severely and injured her son, and indicated the
defendant was not involved. (Id. at p. 324.)
       In addition to the girlfriend’s declaration, the defense produced the girlfriend’s
therapist and her estranged husband to testify at the hearing. According to the therapist,
she had a conversation with the girlfriend in which the girlfriend said she injured her
daughter on the night in question. According to the estranged husband, the girlfriend
confided to him that she was responsible for their daughter’s death, but on cross-

                                             16.
examination he could not remember much detail regarding how she accomplished the
killing. (Delgado, supra, 5 Cal.4th at pp. 324-325.) The defense also submitted a
declaration from a friend of the girlfriend, who indicated the girlfriend confessed and
stated the defendant was not involved on the night in question. Despite this new
evidence, the trial court denied the motion for new trial, finding the girlfriend not
credible. The trial court noted it was convinced of the defendant’s guilt beyond a
reasonable doubt based on the trial evidence and found that the new evidence would not
alter the outcome. (Id. at pp. 325-326.)
       The Court of Appeal reversed, but the Supreme Court affirmed the trial court’s
ruling, determining the girlfriend’s detailed confession failed to significantly contradict
or diminish the probative value of her earlier testimony regarding the defendant’s guilt.
More importantly, Delgado noted the girlfriend’s confession failed to diminish the
strength of much more damaging testimony against the defendant, including the minor
son identifying the defendant as the assailant. (Delgado, supra, 5 Cal.4th at pp. 328-
329.) The Supreme Court found no abuse of discretion because the girlfriend’s
declaration was not credible in light of her earlier statements, certain evidence introduced
at trial, and her obvious continued attachment to the defendant. (Id. at p. 329.) Delgado
affirmed the trial court’s decision, holding the judge was “well within his discretion in
finding that the proffered new testimony lacked credibility, and implicitly finding that it
would not have changed the result on retrial.” (Ibid.)
       Here, like in Delgado, the trial court focused on the credibility of David’s letter
and based its denial on that factor. The trial judge noted that appellant’s family had done
“everything they could to protect” appellant but a noninterested witness had identified
appellant as the driver. The trial judge also recalled appellant’s mother stating at the
accident scene that appellant was the driver. The trial judge believed appellant’s family
was trying to get “a second bite at the apple” after the first trial went against appellant.



                                              17.
       The record supports the trial court’s determination that David’s letter lacked
sufficient credibility to warrant a new trial. In addition to the points noted by the trial
judge, we further observe David indicated at the accident scene his mother was the driver.
These inconsistencies, coupled with David’s obvious ongoing attachment to appellant,
call into question the veracity of David’s unsworn letter.
       Moreover, we disagree with appellant’s contention that David’s letter overcomes
the strongest evidence against him at trial, which he asserts was Martin’s eyewitness
identification. To the contrary, the strongest evidence against appellant was his voluntary
admission made at the accident scene without any prompting. David’s unsworn letter
does not overcome that evidence. When appellant’s admission is coupled with the
eyewitness identification and his mother’s statement to law enforcement, overwhelming
evidence exists that appellant was the driver.
       The trial court acted well within its discretion in finding that David’s letter lacked
credibility. (Delgado, supra, 5 Cal.4th at p. 329.) Based on this record, the trial court
also acted well within its discretion in implicitly finding it was not probable that at least
one juror would have voted to find appellant not guilty had David’s information been
presented. (People v. Soojian, supra, 190 Cal.App.4th at p. 521.) Accordingly, appellant
is not entitled to reversal of his convictions.

III.   Appellant Cannot Establish Prejudice Stemming From His Counsel’s
       Performance.
       Appellant asserts his trial counsel rendered constitutionally ineffective assistance
of counsel. He contends he was denied a fair trial and his convictions must be reversed.
       A.     Background.
       Following appellant’s arrest, Officer Norman prepared a “DRIVING UNDER
THE INFLUENCE (DUI) ARREST REPORT” which noted, in part, that appellant had
five previous DUI arrests.




                                              18.
          At trial, defense counsel cross-examined Norman regarding appellant’s admission
and subsequent denial he was the driver. Norman testified appellant was interviewed and
the arrest report reflected appellant’s denial he was driving. Defense counsel moved the
arrest report into evidence (exhibit K) without redacting the information pertaining to
appellant’s prior DUI arrests. During closing arguments, defense counsel briefly
mentioned exhibit K and invited the jury to review it.
          After deliberations started, the jury sent a note to the judge asking if they could
use exhibit K as evidence regarding the five previous DUI’s. The trial court met with
counsel, agreed to a response, and informed the jury that it could not do so.
          B.     Standard of review.
          A defendant bears the burden of proving ineffective assistance of counsel.
(People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma).) To reverse a judgment,
defense counsel’s performance must be shown to be both deficient and have caused
prejudice. (Ibid.) To show deficiency of performance, the defendant must establish that
his counsel’s representation was below an objective standard of reasonableness under the
prevailing professional norms. (Ibid.)
          To establish prejudice, the defendant must show there is a reasonable probability
the result of the proceeding would have been different but for defense counsel’s
unprofessional conduct. (Ledesma, supra, 43 Cal.3d at pp. 217-218.) A “reasonable
probability” exists when confidence is undermined regarding the trial’s outcome. (Id. at
p. 218.) The question on appeal is whether it is reasonably probable the factfinder would
have had reasonable doubt respecting guilt if defense counsel’s errors did not occur.
(Ibid.)
          Our Supreme Court has stated that when a claim of ineffectiveness may be
rejected due to lack of prejudice, that course should be followed. (In re Scott (2003) 29
Cal.4th 783, 825; In re Cox (2003) 30 Cal.4th 974, 1019.)



                                                19.
       C.      Analysis.
       Appellant maintains his trial counsel failed to act in the manner expected of a
reasonably competent attorney because he exposed the jury to information about
appellant’s five previous DUI arrests. He asserts there was no reasonable trial tactic to
introduce exhibit K into evidence unredacted. He also notes exhibit K was unnecessary
based on Norman’s trial testimony.
       Respondent focuses on prejudice and contends appellant cannot establish that a
result more favorable would have resulted if exhibit K had been redacted.
       We agree that appellant cannot establish prejudice based on this record. Because
appellant’s claim of ineffectiveness may be rejected due to lack of prejudice, we will
follow that course. (In re Scott, supra, 29 Cal.4th at p. 825; In re Cox, supra, 30 Cal.4th
at p. 1019.)
       Here, appellant voluntarily admitted to a police officer he was the driver.
Appellant made his admission without prompting and he appeared nonchalant. After he
was arrested, appellant’s demeanor changed and he became very agitated, upset, and then
denied being the driver. In addition to appellant’s admission, an uninterested eyewitness
identified him as the person who exited the BMW from the driver’s seat. Appellant’s
mother also identified appellant as the driver. His mother’s statement came after she
initially claimed to be the driver, but she was warned about the consequences of lying to
an officer during an investigation. Although the defense witnesses testified they saw
appellant leave the party as a passenger, the evidence overwhelming established appellant
was driving when the accident occurred.
       Appellant has not shown there is a reasonable probability the result of his trial
would have been different had his defense counsel redacted exhibit K. (Ledesma, supra,
43 Cal.3d at pp. 217-218.) Our confidence in the outcome of this trial is not undermined
because a reasonable probability does not exist the jury would have had reasonable doubt



                                            20.
respecting appellant’s guilt absent this error. (Ibid.) Accordingly, appellant is not
entitled to reversal.
IV.    Appellant Cannot Establish Cumulative Prejudice.
       Appellant alleges he suffered a due process violation from “cumulative prejudice”
stemming from the errors discussed above. This contention is without merit because we
have rejected all of his claims or found no prejudice. Accordingly, reversal is not
warranted. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [the defendant’s
cumulative prejudice argument rejected based on findings each individual contention
lacked merit or did not result in prejudice].)
V.     The Amended Abstract Of Judgment Contains A Clerical Mistake.
       In companion case No. VCF258951, the trial court terminated probation and
imposed a two-year prison sentence to run concurrent with companion case No.
VCF245876. The original abstract of judgment reflected that sentence. However, on
August 12, 2014, the trial court filed an amended abstract that reflected a three-year
sentence in case No. VCF258951.
       An abstract of judgment must reflect the oral judgment of the sentencing court.
(People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) An abstract may not add to or
modify the trial court’s judgment. (Id. at p. 185.) An appellate court has inherent power
to correct clerical errors appearing in its records to make those records reflect the true
facts. (Ibid.)
       Here, the amended abstract of judgment does not reflect the oral sentence imposed
by the trial court. Accordingly, we order its correction to reflect the two-year prison
sentence orally imposed in case No. VCF258951.
                                      DISPOSITION
       The amended abstract of judgment is ordered corrected to reflect the two-year
prison term sentence imposed in Tulare County Superior Court case No. VCF258951.



                                             21.
The court shall then forward the corrected amended abstract to the appropriate
authorities. The judgment is otherwise affirmed.




                                           22.
