People v. Cole

• Decision Date: 04 June 1979
• Docket Number: Cr. 18404
• Citation: 94 Cal.App.3d 854,155 Cal.Rptr. 892
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Ellis COLE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 892

155 Cal.Rptr. 892

94 Cal.App.3d 854

PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Ellis COLE, Defendant and Appellant.

Cr. 18404.

Court of Appeal, First District, Division 2, California.

June 4, 1979.

Hearing Denied Aug. 1, 1979.

George L. Schraer, Berkeley, for defendant and appellant (court-appointed counsel).

George Deukmejian, Atty. Gen., of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ROUSE, Associate Justice.

Defendant, Walter Cole, was charged by information with one count of assault with intent to commit murder (Pen.Code, § 217), enhanced by a firearm use allegation (Pen.Code, §§ 1203.06, 12022.5) and a great bodily injury charge (Pen.Code, § 12022.7); and with one count of possession of a concealable firearm by a felon (Pen.Code, § 12021). Five prior felony convictions were alleged; defendant admitted the first and fifth, and the others were stricken. Defendant pleaded not guilty to both counts, and denied the firearm use allegation and the great bodily injury charge. His motion to suppress evidence under section 1538.5 of the Penal Code ¹ was denied, as was his motion to dismiss under section 995. He proceeded to trial by jury, where he was found guilty of assault with a deadly weapon ( § 245, subdivision (a)), a lesser included offense within the offense charged in the first count, assault with intent to commit murder. Defendant was found to have used a firearm. He was also convicted of possession of a concealable firearm by a felon. Defendant's motion for a new trial based upon newly discovered evidence was denied. He appeals from the judgments of conviction.

The case arose from a shooting on October 4, 1977, at the Soul Food Bar on San Pablo Avenue in Oakland, California. The bar was partly owned by defendant's common-law wife, Rita Morrison, and defendant worked there part-time as the manager.

Early that evening Scotty Guess arrived at the bar with Dorothy Stacy and Robin Redmond. Guess had never been to the bar before, and did not know defendant prior to that evening. Defendant was at the bar when Guess, Stacy and Redmond arrived. Guess testified that upon arriving at the bar, he played three games of pool, after which a man named "Cadillac" approached him and began threatening to "blow me away." An argument ensued between Guess and "Cadillac," whom Guess identified at trial as defendant. (Other evidence at trial also established that defendant used the name "Cadillac.")

Guess testified that after the argument, defendant went behind the bar and reached for an object when Guess could not identify as a gun. He stated that defendant then returned to where he was sitting, came up behind him and shot him in the back of the head. Guess heard the shot, but at no time saw a gun in defendant's hand. Stacy testified that she did not see defendant shoot Guess, but did hear the shot and turned in time to see "Cadillac" strike Guess over the head with a handgun as he was falling to the floor. Guess sustained a gunshot wound to the back of the head and a laceration on his forehead, and was taken to Herrick Hospital in Berkeley.

The next day, police found bloodstains on the floor of the bar, and discovered the expended slug from a .38 caliber bullet on the floor next to the pool table.

Morrison, defendant's common-law wife, testified at trial that she was at the bar the entire night but was unaware that a shooting had occurred.

Evidence of defendant's prior felony conviction for arson was introduced at trial.

Defendant's first contention on appeal is that the trial court improperly denied his motion for a new trial based upon newly discovered evidence. Defendant's purported new evidence was the affidavit of his common-law wife, Rita Morrison, in which she claimed full responsibility for the assault on Scotty Guess. Morrison's declaration averred that "to the best of my knowledge" defendant was not involved in the incident. Defendant's attorney averred that Morrison came forward with this new and relevant evidence only after defendant was convicted. We conclude that the trial court was correct in denying the motion.

Defendant argues that he has a statutory right to a new trial under section 1181, subdivision 8. ² The granting or denial of a motion for new trial on newly discovered evidence is a matter for the sound discretion of the trial court. (People v. Hill (1969) 70 Cal.2d 678, 698, 76 Cal.Rptr. 225, 452 P.2d 329, cert. den. 406 U.S. 971, 92 S.Ct. 2416, 32 L.Ed.2d 671; People v. Beyea (1974) 38 Cal.App.3d 176, 202, 113 Cal.Rptr. 254.) Such a motion is generally looked upon with disfavor, and unless a clear abuse of discretion is shown, a denial of the motion will not be disturbed on appeal. (People v. McDaniel (1976) 16 Cal.3d 156, 179, 127 Cal.Rptr. 467, 545 P.2d 843.) In determining whether there has been a proper exercise of discretion, each case must be judged upon its own factual background. (People v. Hill, supra, at p. 698, 76 Cal.Rptr. 225, 452 P.2d 329; People v. Hairgrove (1971) 18 Cal.App.3d 606, 610, 96 Cal.Rptr. 142; People v. Baeske (1976) 58 Cal.App.3d 775, 783, 130 Cal.Rptr. 35.) In People v. Beyea, supra, this court reaffirmed the well established rule that "in ruling on the motion, the trial court must consider the following factors: 1) that the evidence, and not merely its materiality, is newly discovered; 2) that the evidence is not merely cumulative; 3) that it would render a different result probable on retrial of the cause; 4) that the party could not with reasonable diligence have discovered and produced it at trial; and 5) that these facts have been shown by the best evidence of which the case admits (People v. Williams (1962) 57 Cal.2d 263, 270, 18 Cal.Rptr. 729, 368 P.2d 353)." (P. 202, 113 Cal.Rptr. p. 271.) In its consideration of these five factors, the trial court may weigh the credibility of the new evidence in determining whether its introduction would render a different result on retrial reasonably probable. (People v. Beyea, supra, at p. 202, 113 Cal.Rptr. 254.)

In this case, the trial court concluded that affiant Rita Morrison's credibility was "zero," and discounted her affidavit. Its conclusion was based upon Morrison's perjury at the trial, her trial testimony that she was unaware a shooting had even occurred that night, and the fact that she twice testified at trial, but failed to bring forth this evidence at that time. It was not improper for the trial court to deny defendant's motion if it believed Morrison's proffered affidavit lacked credibility and would not have changed the result on retrial. (People v. Charley Quong (1935) 5 Cal.App.2d 137, 139, 42 P.2d 386.)

Defendant relies principally on People v. Hairgrove, supra, 18 Cal.App.3d 606, 96 Cal.Rptr. 142. That case is factually distinguishable. In Hairgrove, the defendant's motion for a new trial was also based upon a third party's affidavit but was denied without the trial court taking the affiant's testimony at the hearing. Because the affiant did not testify at the trial, the Court of Appeal held that the trial judge abused his discretion in not taking all relevant evidence on the motion prior to denying it. However, in reversing, the court expressed no opinion as to the merits of the defendant's motion. (P. 610, 96 Cal.Rptr. p. 142.)

Hairgrove merely addressed the issue of the defendant's ability to fully Present his new evidence. It was not the merits of the trial court's decision that was at issue, but rather the procedure used to reach that decision. In the present case it is not claimed that the trial court committed error by limiting defendant's ability to present his new evidence. There is nothing in the record to indicate that defendant even sought to produce Morrison's testimony at the hearing on his motion. Moreover, the affiant in this case did testify at the trial, and defendant had the opportunity at that time to confront her.

Defendant also alleged that a new trial may be granted where failure to do so results in the denial of a fair trial or a miscarriage of justice. We conclude, however, that there was neither a denial of a fair trial nor a miscarriage of justice when defendant's motion for a new trial was denied.

Defendant next contends that his conviction for assault with a deadly weapon ( § 245, subd. (a)) was improper since that crime is not a lesser included offense of the crime of assault with intent to commit murder ( § 217). ³ The Attorney General concedes this point, but argues that under a test of lesser included offenses established in People v. Collins (1960) 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326, defendant's conviction may stand.

Two different types of necessarily included offenses have been recognized in this state. First, where an offense cannot be committed without committing another offense, the latter offense is an included offense. Second, a lesser offense is necessarily included if it is within the offense specifically charged in the information. (People v. Cannady (1972) 8 Cal.3d 379, 390, 105 Cal.Rptr. 129, 503 P.2d 585; People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390; Witkin, Cal.Criminal Procedure (1963) §§ 542, 543, pp. 553-555.)

The Attorney General admits that under the "elements of the crime" test, assault with intent to commit murder does not encompass all the elements of assault with a deadly weapon. Case law supports this view. (People v. Schueren (1973) 10 Cal.3d 553, 559, 111 Cal.Rptr. 129, 516 P.2d 833; People v. Flowers (1974) 38 Cal.App.3d 813, 816-817, 113 Cal.Rptr. 701.)

The second test of lesser included offenses recognized in this state is the "accusatory pleading" test. (People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456; Witkin, Supra, § 543, at pp. 554-555.)...