Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA060977, William R. Hollingsworth, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Robert Anderson appeals from his conviction by jury trial of failing to register as a convicted sex offender and failing to register within five days of changing his address. (Former Pen. Code, § 290, subds. (a)(1)(A) and (f)(1).) He argues that admission of the preliminary hearing testimony of his girlfriend, Gina Brown, violated his right to confrontation guaranteed by the Sixth Amendment to the United States Constitution. We find no confrontation clause violation because appellant was given an adequate opportunity to cross-examine the witness at the preliminary hearing and the testimony was otherwise admissible.
Statutory references are to the Penal Code unless otherwise indicated.
Appellant also argues the trial court erred by refusing to preclude any mention of his status as a sex offender at trial. His sex offender status was an element of the charged crimes and was thus relevant evidence. Appellant also challenges the jury instructions on the registration offense. We find no instructional error. He claims prosecutorial misconduct based on statements made during closing argument. We find no misconduct.
Finally, appellant argues the trial court erred in denying his motion for new trial based on evidence that Gina Brown had recanted her preliminary hearing testimony. On the record presented, we find no abuse of discretion.
FACTUAL AND PROCEDURAL SUMMARY
In February 2005, appellant was dating Gina Brown. Brown and her children lived in a one-bedroom unit in a triplex on Raymond Avenue in Los Angeles County. According to Brown, appellant had been staying with her off and on for two months, although he had another residence at 88th and Broadway. Appellant kept some clothes in a closet and in a drawer in Brown’s bedroom. Brown had visited appellant’s one bedroom apartment on 88th, and saw signs that he lived there, including his clothing. They took some of his clothes from the place on 88th and brought them to Brown’s home.
Deputy sheriffs were called to Brown’s home in February 2005. Appellant was arrested on domestic violence charges. As part of the booking process, appellant gave his address as 227 West 88th Street in Los Angeles. Appellant placed his initials in two places on the booking form which stated that his address was on 88th Street. He told the deputy that he lived at Brown’s address, but had another address on 88th Street. Appellant did not ask the deputy to put his address on the booking sheet as 237 West 84th Place.
Los Angeles Police Officer Miriam Ramirez testified she was assigned to the Registration Enforcement and Compliance Team, which was in charge of registering sex offenders within the area served by the south bureau of the Los Angeles Police Department. Officer Ramirez completed a registration update form for appellant on May12, 2004. In filling out the form that day, appellant said his address was 237 West 84th Place, Los Angeles, 90003. He signed the form in Officer Ramirez’s presence. The form contains an admonition informing the offender of the duty to register, and a certification that the information provided is true and correct. It also contains a warning that failure to comply with the registration requirements is punishable as a criminal offense. Officer Ramirez went through the form with appellant. He initialed next to lines stating his responsibility to reregister within five working days when changing his address, and setting out other terms of the registration law.
Appellant initialed a printed line that reads: “If I have more than one residence address or transient location I must register all addresses or locations with the agency or agencies having jurisdiction over them.” Appellant had gone through the registration process with the Los Angeles Police Department on April 22, 2003 and on May 8, 2003. He listed his address as 237 West 84th Place, Los Angeles each time, and initialed the same warnings and admonitions. Appellant never updated his registration with a new address after May 12, 2004. Nor did he register as living at 227 West 88th Street in Los Angeles. He never informed the Los Angeles Police Department that he was living at 11219 1/2 South Raymond Avenue in the County of Los Angeles.
Detective Mark Renfrow of the sheriff’s department testified that the address at 11219 1/2 South Raymond Avenue is in an unincorporated part of Los Angeles County, within the service area of the Lennox sheriff’s station. Detective Renfrow checked the sex offender registration records at the station, as well as the Violent Crime Information Network (VCIN), a data base tracking sex offender registrants maintained by the California Department of Justice. Appellant had not registered at the address of 11219 1/2 South Raymond Avenue in the County of Los Angeles. According to VCIN, appellant had never registered at the 227 West 88th Street, Los Angeles address, although he had registered at the 237 West 84th Place address.
When Detective Renfrow went to the Raymond Avenue address, he and his partner asked Gina Brown to show them appellant’s clothing and personal effects. Brown took them to a closet which had 15 to 25 men’s shirts and pants hanging in it. There also was a drawer in the closet with men’s clothing. Brown identified these as belonging to appellant.
Appellant was arrested and charged with failing to register as a sex offender, and failing to register a change of address, between September 1, 2004 and February 21, 2005. (§ 290, subds. (a)(1)(A) and (f)(1).) He was found guilty as charged. The jury returned true findings on allegations that appellant had suffered two prior convictions for robbery, one for kidnapping, four for rape, two for oral copulation, and one for battery by a prisoner. Appellant was sentenced to a term of 26 years to life on count 2. Imposition of sentence on count 3 was stayed pursuant to section 654. He filed a timely appeal from the judgment.
Trial on the remaining charge of infliction of corporal injury on a cohabitant was bifurcated. The jury deadlocked on that count, which ultimately was dismissed. The trial court denied appellant’s motions to strike prior convictions for purposes of sentencing (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497).
DISCUSSION
I
Appellant argues the trial court erred in admitting the preliminary hearing testimony of Gina Brown, who was unavailable to testify at trial. He contends that the “abbreviated probable cause proceeding” at the preliminary hearing failed to provide an adequate opportunity to confront and cross-examine Brown, and thus violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. He reasons that the right to confront and cross-examine witnesses at a preliminary hearing is limited to the issue of probable cause to bind the defendant over for trial. He states that only two pages of the 12 1/2 page cross-examination of Brown at the preliminary hearing concerned the failure to register counts. Appellant argues: “Without an opportunity to cross-examine Brown in front of appellant’s jury, counsel could not explore her potential bias against appellant, particularly that which may have colored her testimony regarding cohabitation/residency because of his alleged physical abuse.”
“A criminal defendant has a constitutionally guaranteed right to confront and cross-examine the witnesses against him or her. (U.S. Const., 6th and 14th Amends.; Pointer v. Texas (1965) 380 U.S. 400, 403-405.) The right of confrontation is not absolute, however, and may ‘in appropriate cases’ bow to other legitimate interests in the criminal trial process. (Chambers v. Mississippi (1973) 410 U.S. 284, 295; accord Barber v. Page (1968) 390 U.S. 719, 722.)” (People v. Carter (2005) 36 Cal.4th 1114, 1172 (Carter).) The United States and California Supreme Courts have long recognized an exception to the confrontation requirement where the witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant, and was subject to cross-examination by that defendant. (Ibid., citing Crawford v. Washington (2004) 541 U.S. 36, 59; Barber v. Page, supra, 390 U.S. 719, 722; People v. Wilson (2005) 36 Cal.4th 309, 339-348; People v. Stritzinger (1983) 34 Cal.3d 505, 515; see also California v. Green (1970) 399 U.S. 149, 167-168 [where a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement]; Evid. Code, § 1290 et seq. [former testimony hearsay exception].)
In People v. Seijas (2005) 36 Cal.4th 291, the California Supreme Court held these principles were not changed by Crawford v. Washington, supra, 541 U.S. 36, which recognized that the Sixth Amendment demands only unavailability and a prior opportunity for cross-examination. (People v. Seijas, supra, 36 Cal.4th at p. 303, citing Crawford v. Washington, supra, 541 U.S. at p. 68.)
As the Carter court explained: “[T]he federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer. (United States v. Owens (1988) 484 U.S. 554, 559.)” (People v. Carter, supra, 36 Cal.4th at p. 1172.) In Carter, the court rejected arguments that admission of preliminary hearing testimony denied the defendant’s Sixth Amendment right of confrontation and violated Evidence Code section 1291 because there was no meaningful opportunity to cross-examine the witness. “As we previously have explained: ‘as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.’ (People v. Samayoa [(1997)] 15 Cal.4th 795, 851; see also People v. Zapien (1993) 4 Cal.4th 929, 975; People v. Alcala [(1992)] 4 Cal.4th 742, 784 [the requirement that the party have a similar interest and motive is satisfied notwithstanding the decision of defense counsel to alter the nature or scope of cross-examination].)” (Carter, supra, 36 Cal.4th at pp. 1173-1174, second italics added.)
The Supreme Court revisited the Crawford issue in an analogous context in People v. Jurado (2006) 38 Cal.4th 72. In Jurado, the trial court granted the prosecution’s request to conduct a conditional examination of a key witness under section 1335, subdivision (b) because the witness’s life was in jeopardy. A transcript of that examination was admitted at trial. On appeal, Jurado argued that his constitutional right to confront witnesses was violated by this process. The Supreme Court observed that the defendant had a full and fair opportunity to cross-examine the witness at the conditional examination. It concluded: “For purposes of due process, confrontation, and reliability, the situation is no different than if [the witness] or any other witness had testified at the preliminary hearing or at an earlier trial and then, because he had become unavailable, his prior testimony was admitted at trial. When a defendant has had an adequate opportunity for cross-examination and the witness is unavailable at trial, use of prior testimony does not violate the defendant’s rights under the federal Constitution. (People v. Wilson[, supra, ]36 Cal.4th 309, 343; see Crawford v. Washington[, supra, ] 541 U.S. 36, 55-57.)” (Id. at p. 115.)
The fact that the object of the preliminary hearing is to determine whether there is probable cause to hold the defendant for trial does not require a different analysis. “Even though the issue at a preliminary hearing involves probable cause to commit a defendant for trial, as distinguished from the issue at trial of guilt beyond a reasonable doubt, for the purpose of determining admissibility of preliminary hearing testimony at trial with respect to a witness who was not available to testify at trial, the interest and motive for cross-examination at the preliminary hearing are deemed sufficiently similar to the interest and motive for cross-examination of the same witness at the guilt trial so as to preclude application of the witness confrontation constitutional right. [Citations.]” (People v. Sul (1981) 122 Cal.App.3d 355, 368-369.)
Appellant does not contend that the trial court limited his cross-examination of Gina Brown in any specific way. Instead, he relies generally on the discretion given magistrates to limit a defendant’s right to call witnesses on his or her own behalf, citing Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070-1071.)We have reviewed the examination of Brown at the preliminary hearing. Defense counsel thoroughly examined Brown. She established that Brown was upset with appellant and argued with him because appellant had said that he wanted to break up with her. This argument led to the altercation that resulted in appellant’s arrest. This testimony established a possible basis to impeach Brown’s credibility.
We disagree with appellant’s assertion that the enactment of Proposition 115 in June 1990 limited the scope of a preliminary hearing so drastically that an adequate opportunity to cross-examine a witness in order to satisfy the confrontation clause is not provided. (See People v. Lepe (1997) 57 Cal.App.4th 977, 982, overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
We find no violation of appellant’s constitutional confrontation rights. He had an adequate opportunity to cross-examine Brown at the preliminary hearing. The scope of the cross-examination was not limited by the trial court, and included issues relevant to Brown’s credibility.
II
Appellant also challenges the trial court’s denial of his request to preclude any mention of his status as a sex offender at trial. He contends that it was irrelevant to the issues and could only inflame the jury. As respondent points out, “A critical element of section 290 is conviction of an enumerated sex offense; there can be no violation of this statute absent sex offender status.” (People v. Cajina (2005) 127 Cal.App.4th 929, 933.) The Cajina court concluded that requiring the prosecution to accept a stipulation as to the existence of the grounds for registration as a sex offender would impair the effectiveness of its case. (Ibid.) It reasoned: “If the jury is not informed why this defendant is subject to such a seemingly onerous obligation, the People, as the instant prosecutor aptly observed, would ‘look overbearing.’” (Ibid.)
Appellant asks us to reject the reasoning of the court in Cajina on the ground that its language invites jurors to convict sex offenders for their bad character or propensity. The passage to which appellant objects in Cajina follows the court’s conclusion that a jury in a section 290 case need not be told the specific sex offense conviction. The court addressed the relevant public policy: “However, unless the jurors are informed that the defendant’s duty to register derives from his status as a sex offender, they will be unaware of the public policy underlying the registration statute: assuring that persons convicted of sex offenses are readily available for police surveillance at all times because the Legislature has deemed them likely to commit similar offenses in the future. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) If the jury lacks a basis for the reason the state subjects certain people to registration requirements, there is the risk it will view the People’s case as an oppressive, unnecessary intrusion on the defendant’s liberty, resent the People for prosecuting it, and consequently refuse to consider whether the defendant’s failure to register was sufficiently morally blameworthy to warrant punishment.” (People v. Cajina, supra, 127 Cal.App.4th at p. 934.)
We conclude that the reasoning of the court in Cajina was sound. Appellant’s status as a sex offender was a central element of the charged offenses. The jury was entitled to know that.
III
Appellant challenges the instructions on the ground that the jury was allowed to interpret “residence” and “location” interchangeably and as legal substitutes for one another. He was charged with failing to comply with the requirements of former section 290, subdivisions (a)(1)(A) and (f)(1) between September 1, 2004 and February 21, 2005.
“Section 290, subdivisions (a)(1)(A) and (f)(1) ‘are separate, albeit closely related, requirements.’ (People v. Britt (2004) 32 Cal.4th 944, 951.) Section 290, subdivision (a)(1)(A), requires sex offenders in California to register with the appropriate law enforcement authorities within five days of changing their residence or location. Section 290, subdivision (f)(1), requires those offenders, when they move, to inform the law enforcement agency where they last registered of their new address or location. A defendant may be convicted of violating both of these subdivisions. (Britt, at p. 951.)” (People v. Musovich (2006) 138 Cal.App.4th 983, 988.)
The applicable provisions of section 290 were amended in 2004. The 2004 version of former section 290, subdivision (a)(1)(A) provided in pertinent part: “Every person described in paragraph (2) [enumerating the violations triggering the duty to register], for the rest of his or her life while residing in, or, if he or she has no residence, while located within California, . . . shall be required to register with the chief of police of the city in which he or she is residing, or if he or she has no residence, is located, or the sheriff of the county if he or she is residing, or if he or she has no residence, is located, in an unincorporated area or city that has no police department, . . . within five working days of coming into, or changing his or her residence or location within, any city, county, or city and county, . . . in which he or she temporarily resides, or, if he or she has no residence, is located.” (Italics added.) The 2004 version of section 290 did not define the term “residence.” Nor was it defined in the jury instructions given here.
The sex offender registration statutes were substantially amended and reorganized in 2007. (Stats. 2007, ch. 579.)
The version of section 290, subdivision (a)(1)(A) in effect in 2005, following the 2004 amendments, revised the description of the registration requirement: “Every person described in paragraph (2), for the rest of his or her life while residing in California, . . . shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing is located, in an unincorporated area or city that has no police department, . . . within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides.” (Italics added.)
The 2004 version of former section 290, subdivision (f)(1) provided in pertinent part: “If any person who is required to register pursuant to this section changes his or her residence address or location, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, the person shall inform, in writing within five working days, the law enforcement agency or agencies with which he or she last registered of the new address or location.” (Italics added.) As amended and effective in 2005, section 290 subdivision (f)(1) stated: “If any person who is required to register pursuant to this section and who has a residence address changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, the person shall inform, in writing within five working days, the law enforcement agency or agencies with which he or she last registered of the new address or transient location . . . . If the person does not know the new residence address or location, the registrant shall inform the last registering agency or agencies that he or she is moving within five working days of the move, and shall later notify the agency or agencies of the new address or location within five working days of moving into the new residence address or location, whether temporary or permanent.” (Italics added.)
The jury instruction on the section 290, subdivision (a)(1)(A) violation provided in pertinent part: “Every person who has been convicted of a felony sex offense and who knowingly fails to register as a sex offender at every address or location at which he regularly resides or is located is guilty of a violation of Penal Code section 290(a)(1)(A). [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person has previously been convicted of a felony sex offense; [¶] 2. That person knew of his duty to register as a sex offender by providing every address or location at which he regularly resided or was located to the police department or sheriff’s department having jurisdiction over that address or location; [¶] 3. That person willfully failed to provide every address or location to the police department and/or sheriff’s department within working five [sic] days of moving into that address or location. [¶] A person who has more than one residence address or location at which he regularly resides or is located must register with each police department or sheriff’s department having jurisdiction over each address or location. If all the addresses and/or locations are within one jurisdiction, that person must provide the registering authority with each and every address and/or location.”
The jury instruction on the violation of section 290, subdivision (f)(1) provided in pertinent part: “Every person who has been convicted of a felony sex offense and who knowingly fails to notify the police department or sheriff’s department with which he last registered of his new residential address or location within five working days of moving into the new address or location is guilty of a violation of Penal Code section 290(f)(1). [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person has previously been convicted of a felony sex offense. [¶] 2. That person changed his address or location. [¶] 3. That person knew of his duty to notify the police department or sheriff’s department where he was last registered of any change of address or location. [¶] 4. That person willfully failed to notify in writing the police department and/or sheriff’s department where he last registered of his new address or location within five working days of moving to that new address or location.”
Appellant argues: “Under these instructions, a reasonable juror could find a violation of both subdivisions (a)(1)(A) and (f)(1) without concluding that appellant either changed his registered ‘residence’ at 237 West 84th Street or added an alternative/second residence so long as they believed he was ‘located’ at Brown’s Raymond Avenue abode on February 21, 2005 and failed to notify the appropriate authorities within 5 days of coming to the Raymond Avenue location. In other words, as instructed the jury could interpret ‘residence’ and ‘location’ interchangeably and as a legal substitute for one another.” He asserts that this interpretation would be contrary to the express language of the statute, on the ground that the statute “does not appear to embrace simultaneous occupations of a ‘residence’ and a ‘location.’”
Appellant argues that the term “residence” was defined in the 2005 version of section 290, subdivision (a)(1)(C)(vii) to mean “a place where a person is living or temporarily staying for more than five days, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles.” We note that this definition of “residence” is placed in subdivision (a)(1)(C) which addresses the registration obligations of transients. In subsection (vii) of that subdivision, “‘transient’” is defined as “a person who has no residence.” The definition of residence on which appellant relies immediately follows the definition of transient.
The statute does not support appellant’s interpretation. Both the 2004 and 2005 versions of section 290 included subdivision (a)(1)(B). The 2004 version provided: “If the person who is registering has more than one residence address or location at which he or she regularly resides or is located, he or she shall register in accordance with subparagraph (A) in each of the jurisdictions in which he or she regularly resides or is located. If all of the addresses or locations are within the same jurisdiction, the person shall provide the registering authority with all of the addresses or locations where he or she regularly resides or is located.” (Italics added.)
The 2005 version of subdivision (a)(1)(B) is similar, but deleted the reference to “location” and clarified that the registration requirement applies regardless of the number of nights spent at a particular place: “If the person who is registering has more than one residence address at which he or she regularly resides, he or she shall register in accordance with subparagraph (A) in each of the jurisdictions in which he or she regularly resides, regardless of the number of nights spent there. If all of the addresses are within the same jurisdiction, the person shall provide the registering authority with all of the addresses where he or she regularly resides.” (Italics added.)
The apparent purpose of subdivision (a)(1)(B) in both the 2004 and 2005 versions is to require a sex offender who regularly stays at more than one address to register as to each address. The 2005 version clarified the requirement by expressly stating that the obligation arises, “regardless of the number of nights spent” at one place. That language is inconsistent with the five night requirement written into the transient provision of section 290, subdivision (a)(1)(C)(vii). The jury was informed that if the appellant had more than one residence address or location at which “he regularly resides or is located” he must register each address or location. That instruction was consistent with both the 2004 and 2005 versions of section 290, subdivision (a)(1). (See People v. Poslof (2005) 126 Cal.App.4th 92, 102 [“There is no language in section 290 that states or implies that a sex offender need not register if he stays at a second or additional location for less than five consecutive days.”].)
Appellant cites a question submitted by the jury during its deliberations: “Please define, ‘transient location’ & residence.” After discussing the question with counsel, the trial court decided it would inform the jury that the term “transient location” is not a part of the jury instruction, and then would reread the instruction given. The jury was brought into the courtroom and the trial court asked what the jury was referencing in its question. Juror No. 5 interrupted and said: “On one of the provisions at the back of his registration where there is a number of things, one of them mentioned a transient location like to know the definition of what that is and how it applies to both the 88th Street and the Raymond Avenue address and the residence. What would be considered a residence? Is it where you get your mail or is it where you pay your bills or is it a place you go to every weekend kind of like to have that.”
The court responded that there seemed to be two parts to the jury’s question. As to the reference to “transient location,” the judge said that is not part of the instructions given. The judge then reread the instruction on the violation of section 290, subdivision (a)(1)(A). He directed the jury to resume deliberations, and to inform the court whether additional clarification was needed. After the jury retired, the prosecutor asked the court to give a definition of residence. The trial court said it would wait to see if the jury requested further clarification. The defense objected to any definition of residence. The jury reached verdicts without any further questions to the court.
Appellant argues that the court’s response to the question confirmed the flawed instruction previously given. We have found no error in the instructions, and none in the response to the question.
IV
Appellant argues the prosecutor committed prejudicial misconduct during closing argument by commenting on the failure of the defendant to testify in his defense, requiring reversal under Griffin v. California (1965) 380 U.S. 609.
The prosecutor argued: “We have established that between September 2004 and February of 2005 the defendant was living at South Raymond Avenue and based on that alone even without any of the other evidence the defendant is convicted he is guilty as charged if the defendant was still living at the 84th Place address, wouldn’t it have been very simple for him to come in here with a rental agreement.” When the defense objected, the prosecutor said “They are entitled to call witnesses, they are entitled to call witnesses.” Defense counsel said: “He said the defendant.” The court said: “As long as you don’t the defendant doesn’t have to do it.”
The prosecutor continued: “Wouldn’t it have been easy for the defense to come in here with a rental agreement, or the landlord to say hey I know defendant Anderson. I know Mr. Anderson. He always has been living at 237 West 84th Place. He has always lived there.” Later, the prosecutor said “This entire case comes down to what is reasonable. Is it reasonable that the defendant would still be living at 237 West 84th Place this entire time, and we wouldn’t have a landlord, a friend or a family member come down.” Defense counsel objected: “We are not required to put on any evidence, and neither side is required to call witnesses.” The court ruled: “They will be instructed of that, but it is proper argument.”
Appellant contends that the court immediately should have admonished the jury to disregard the prosecutor’s statement, affirmed appellant’s constitutional right not to testify, and reminded the jury of the prosecution’s burden of proof. Anticipating that the failure of his counsel to request such an admonition would be treated as forfeiting the issue, appellant contends that this omission constitutes ineffective assistance of counsel. Appellant argues that the initial improper reference to appellant’s failure to produce the rental agreement could not be saved by the later statement saying that the defense could have produced such evidence.
“[I]t is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf.” (People v. Hughes (2002) 27 Cal.4th 287, 371, citing Griffin v. California, supra, 380 U.S. 609.) “But although ‘“Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand,”’ the prohibition ‘“does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.”’ (People v. Hovey (1988) 44 Cal.3d 543, 572 (Hovey).)” (Id. at p. 372.)
Here, the prosecutor’s initial comment that it would have been simple for the defendant to come to court with a rental agreement for the 84th Place address is close to the line drawn by Griffin and its progeny. But as the prosecutor later said, evidence of appellant’s rental of the 84th Place address did not depend on appellant’s testimony. The landlord or a neighbor at that address could have testified, or the rental agreement could have been produced. The prosecutor’s argument was therefore fair comment on the evidence rather than a comment on the appellant’s personal failure to provide proof of his registered address. (See People v. Lancaster (2007) 41 Cal.4th 50, 84 [prosecutor’s statement that no explanation was given for evidence linking defendant to scene of crime ruled fair comment, no Griffin error]; People v. Cornwell (2005) 37 Cal.4th 50, 90 [prosecutor’s comment on absence of defense evidence explaining presence of automobile used by defendant at the scene of the crime constituted fair comment when several other witnesses could have provided the explanation].)
V
Appellant argues the trial court erred in denying his motion for new trial based on Gina Brown’s posttrial recantation of her preliminary hearing testimony. New counsel, James Brewer, had been appointed to represent appellant on the motion. Trial counsel, Joe Gualano, provided a declaration in support of the new trial motion. He explained that he had purchased civilian clothing for appellant to wear during trial at his own expense. When the date for retrial of the corporal injury to a spouse count approached in September 2006, Gualano was unable to find the clothes he had purchased. “On September 21, 2006 I approached Ms. Brown to see if she could bring some of the defendant’s clothes that were at her residence for the retrial of the Corporal Injury to Spouse charge. Gina Brown said to me that she did not have any of his clothes and that she never did. She said she lied at the hearing and to the police because she was angry at the defendant. She said the clothes in her residence belonged to her seventeen year old son and not the defendant.” Gualano told the prosecutor about this conversation. The prosecutor said he was not surprised because Brown was now recanting her testimony as to the corporal injury charge as well. No declaration by Brown was attached to the motion.
At the hearing on the new trial motion, the prosecutor argued that appellant had admitted he lived at Brown’s address to one of the arresting deputies, who testified to that effect at trial. In addition, he reminded the trial court that if Brown had testified at trial, the prosecution was prepared to use her to authenticate a rental agreement for the Raymond address that listed appellant as one of the renters. The prosecutor also referenced the taped sheriff’s interview of Brown, in which she talked about the clothes appellant kept at the Raymond address. Brown said she would show the property to the deputies to prove that she had not taken any of appellant’s belongings. The prosecutor said: “So it is not something where she says I was angry or some type of impassioned well, let me show you where his stuff is or something like that. It is for her showing that to the deputies in a manner where she is essentially providing some type of security for herself that she wouldn’t have taken any of the defendant’s things.” The prosecutor argued that Brown’s declaration was a common case of a domestic violence victim recanting her complaints.
The defense attorney responded that a jury should have an opportunity to judge Brown’s credibility. He argued that neither the rental agreement nor the taped statement were admitted at trial. The trial court denied the motion.
“On appeal, a trial court’s ruling on a motion for new trial is reviewed for abuse of discretion. (People v. Coffman and Marlow [(2004)] 34 Cal.4th [1,] 128.) Its ruling will not be disturbed on appeal ‘“unless a manifest and unmistakable abuse of discretion clearly appears.” [Citation.]’ (People v. Davis [(1995)] 10 Cal.4th [463,] 524.)” (People v. Guerra (2006) 37 Cal.4th 1067, 1159-1160.) “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 trial; and 5. That these facts be shown by the best evidence of which the case admits.”’” (People v. Delgado (1993) 5 Cal.4th 312, 328, quoting People v. Sutton (1887) 73 Cal. 243, 247-248.) The trial court may consider the credibility of the new evidence in determining whether it is reasonably probable that its introduction would render a different result. (Delgado, at p. 329.)
Appellant argues each of the Delgado factors is satisfied. The evidence is new, and material and relevant to the critical issue of appellant’s residence at Brown’s home. The recantation was not cumulative; instead it contradicts Brown’s preliminary hearing testimony. The evidence could not have been produced at trial because the trial court declared Brown unavailable and admitted her preliminary hearing testimony on that basis. Appellant asserts that the declarations of his counsel satisfy the fifth factor because section 1181 allows the use of declarations in support of a new trial motion. Appellant argues that the prosecution conceded each of these factors.
Appellant contends that the only contested factor is the third, whether the new evidence would make a different result on retrial probable. He contends that Brown’s preliminary hearing testimony “was the People’s case.” Based on questions asked by the jury during deliberations, he asserts that this was a close case.
Respondent emphasizes the trial court’s right to doubt the credibility of the recantation, citing People v. Delgado, supra, 5 Cal.4th 312. In that case, the mother of a murdered child gave various inconsistent accounts, inculpating the defendant and her husband. A year later, she confessed to the killing and submitted a declaration to that effect in support of the defendant’s new trial motion. The mother had maintained a relationship with the defendant after her daughter’s death. The Supreme Court held that in light of the mother’s “series of newly remembered revelations of critical exculpatory evidence, her obvious continued attachment to defendant, and conflicts between her stories and other evidence admitted at trial, the trial 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. (See People v. Dyer [(1988)] 45 Cal.3d [26,] 51 [‘defendant’s own trial testimony contradicted the declarations which formed the basis of his new trial motion’]; People v. Langlois (1963) 220 Cal.App.2d 831, 834-835 [recantation of important prosecution witness not deemed credible when by ‘her own statement, she was in love with defendant and desired to help him to avoid punishment’].) In sum, there was no basis on this record for the Court of Appeal to interfere with the trial court’s denial of the motion for new trial based on [the mother’s] posttrial declaration.” (Id. at p. 329, fn. omitted.)
Respondent points out that no declaration by Brown was provided. Instead, appellant’s counsel recounted a conversation with Brown in which she recanted her testimony. It also points to case law recognizing that in domestic violence cases, victims often recant their previous statements. (People v. Brown (2004) 33 Cal.4th 892, 899; People v. Gadlin (2000) 78 Cal.App.4th 587, 591, 593-594.) Respondent also cites appellant’s admission that he lived at the Raymond address as independent evidence of his guilt, reducing the probability that Brown’s recantation would lead to a different result.
We find no abuse of discretion in the denial of the new trial motion on this record. The credibility of the recantation was questionable in light of Brown’s failure to provide a declaration to support the motion. At the preliminary hearing, Brown testified that she did not want to testify, that she did not want appellant to be in court, and that she wanted to get back together with him. She made herself unavailable to testify at the trial. This evidence of Brown’s continuing attachment to appellant further supports the implicit conclusion that her recantation was not credible. Finally, appellant admitted that he lived both at the Raymond address and on 88th Street, addresses at which he had not registered.
DISPOSITION
The judgment of conviction is affirmed.
We concur:
MANELLA, J. SUZUKAWA, J.