Opinion
H029399
5-23-2007
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DANIEL GONZALES, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Anthony Daniel Gonzales of second degree murder and found true, for purposes of a one-year sentence enhancement that, in committing the murder, defendant had personally used a deadly weapon. The trial court sentenced defendant to 16 years to life in prison. On appeal, defendant contends that the trial court erred by (1) instructing the jury in the language of CALJIC No. 5.54 (self-defense by an aggressor) and CALJIC No. 5.56 (self-defense re participants in mutual combat) without tailoring the instructions to the facts of the case, and (2) denying his motion for a new trial using an incorrect legal standard. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant raises claims of ineffective assistance of counsel. We disagree with defendant and affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.
background
Scott Largent celebrated his 27th birthday at his home with several dozen friends. One of the party guests had invited Johnny Morales to attend. Morales arrived accompanied by Moses Escamilla and defendant (Escamillas cousin). During the party, in the backyard, defendant flirted with several female guests. He eventually encountered Largents girlfriend, Carol Holmboe, and persisted in attending her. At some point, Largent approached and informed defendant that Holmboe was his girlfriend. Largent and defendant began arguing. Defendant then punched Largent in the eye, knocking him to the ground. The two began struggling, but some of the partygoers intervened and separated them. Defendant cursed at Largent and challenged Largent to fight. Largent went inside the house and his friends asked defendant to leave. Defendant became hostile and refused. Some of Largents friends began pushing defendant toward an exit gate. Defendant resisted and pushed back. Morales and Escamilla joined the group and urged defendant to leave. At some point, defendant and Escamilla crossed through the exit gate to the homes front driveway while defendant exchanged shouts with a crowd of about 10 people headed by David Quiroz. Quiroz continued to argue as he approached defendant and Escamilla. Defendant and Escamilla then began punching Quiroz. Quiroz sought to deflect the attack but ultimately fell into the bushes while Daniel Ramirez jumped on Escamilla and Justin Guinn jumped on and punched defendant. Escamilla said he would leave. Ramirez released him and went to assist Guinn. Defendant said he would leave, and the two released defendant only to have Largent appear and punch defendant two or three times in the head before defendant managed to run away.
Quiroz died at the scene from wounds inflicted by defendants three-and-three-quarter-inch folding knife that was found in the bushes. He had suffered eight stab wounds, as distinguished from slashing wounds. Three were potentially fatal: one was in the back of the neck and three and three quarters inches deep; another was in the abdomen and three and three quarters inches deep; and the third was in the lower back and three and three quarters inches deep. Two others were to the scalp (one and three inches), one other was to the front of the neck (one inch), another was to the upper back (two and one-half inches), and the remaining wound was to the arm (one and one-half inches). Quiroz had suffered injuries to his head that were consistent with fist punches and had no injuries to his hands that were consistent with his having punched another.
Defendant made statements to the police and testified. According to defendant, he was friendly but met a hostile Largent during the conversation with Holmboe; he thought Largent wished to fight so he punched him; he thereafter said that he was leaving and voluntarily went through the gate with Escamilla to await Morales; Morales arrived, but a group of four to six led by Quiroz attacked him; he fell into the bushes, felt overwhelmed, and feared for his life; he pulled out his knife, flipped it open, and began swinging it; he hit someone with it a couple of times before someone beat it out of his hand; he managed to squirm from the crowd and escape.
self-defense instructions
In addition to the other self-defense instructions, the trial court instructed the jurors on self-defense by an aggressor and self-defense in mutual combat as follows (defense counsel did not object to the instructions, nor did she ask for any modification or clarification).
The trial court instructed in the language of CALJIC Nos. 5.12 (justifiable homicide in self-defense), 5.13 (justifiable homicide—lawful defense of self or another), 5.14 (homicide in defense of another), 5.15 (charge of murder—burden of proof re justification or excuse), 5.17 (actual but unreasonable belief in necessity to defend—manslaughter), 5.30 (self-defense against assault), 5.31 (assault with fists—when use of deadly weapon not justified), 5.32 (use of force in defense of another), 5.50 (self-defense—assailed person need not retreat), 5.51 (self-defense—actual danger not necessary), 5.52 (self-defense—when danger ceases), 5.53 (self-defense not an excuse after adversary disabled), and 5.55 (plea of self-defense may not be contrived).
"The right of self-defense is only available to a person who initiated an assault if he has done all of the following: He has actually tried in good faith to refuse to continue fighting; he has by words or conduct caused his opponent to be aware as a reasonable person that he wants to stop fighting; he has by words or conduct caused his opponent to be aware as a reasonable person that he wants to stop fighting, he has by words or conduct caused his opponent to be aware as a reasonable person that he has stopped fighting. After he has done these three things he has a right to self-defense if his opponent continues to fight. [¶] If the victim of simple assault responds in a sudden and deadly counter-assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense." (See CALJIC No. 5.54.)
"The right of self-defense is only available to a person who engages in mutual combat if he has done all [of] the following: He has actually tried, in good faith, to refuse to continue fighting; he has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; he has caused by words or conduct his opponent to be aware as a reasonable person that he has stopped fighting; and he has given his opponent the opportunity to stop fighting. After he has done these four things he has the right to self-defense if his opponent continues to fight. [¶] If the other party, the party of the mutual combat, responds in a sudden and deadly counter-assault, that is force that is excessive under the circumstances. A party victimized by the sudden excessive force may not attempt to withdraw and may reasonably use necessary force in self-defense." (See CALJIC No. 5.56.)
As to self-defense, the prosecutor argued that the jury should not accept the theory because defendant used deadly force (the knife) in response to, at worst, Quirozs nondeadly assault and the stab wounds were inconsistent with using the knife defensively.
The prosecutor urged the following: "Youll get a lot of instructions on the law of self-defense. Im only going to talk about one that I think really applies. I think the only people who had the right to defend themselves were Scott Largent and Mr. Quiroz. And each of these rules on self-defense is very fact specific. Heres one of them. Basic rule is an assault with fists does not justify the person being assaulted in using a deadly weapon in self-defense. Even if you believe that Mr. Quiroz began this fight in this drunken stupor, even if you discredit the expert . . . saying that people above a two-oh are not going to have the wherewithal to be aggressive or violent, some poor drunk throwing out a weak punch does not under the law justify an assault with a knife. Thats what the law is on self-defense. Thats one particular instruction." And he added: "It was never self-defense. There are never any wounds such as a slashing wound like you would wave a knife to get someone away from you on the victims body. Theres never any defensive wounds on that mans hands, like where he had even an opportunity to put out his hand to try and save himself. He was surprised, and murdered. [¶] The truth is he could not tell the police it was self-defense. He could never explain to them, just like he couldnt here in court, how there were eight stab wounds. And his behavior that day with Mr. Largent shows you that it was not [defendant] who was the person being attacked that night or who was the victim. These two defendants[] would tell you that they were the victims out there. You look at [defendants] injuries, and you look at Scott Largents injuries, this is an unprovoked attack and Largent obviously was seriously—not serious, its kind of minor injuries—hurt more than [defendant] ever was. Mr. Largent was never near a bush to get scratched on his back, like Im sure youre going to hear the Defense claim all these 24 or 26 however many—however many you want to count, those minor injuries on the victims body, abrasions, bruises, whatever you want to call them, tears, didnt all come from a bush. They came from a beating. Just like Scott Largent whos never near a bush got similar abrasions all over his body."
Defendant and Escamilla were jointly tried. The jury acquitted Escamilla.
As to self-defense, defendant argued that the jury should accept the theory because defendants version of the facts (Quiroz punched defendant into the bushes and, with others, assaulted him) was the correct version.
Defendant urged the following: "And the first task is to decide once and for all what description of events in this case is the true one. One version was provided by Scott Largent, Justin Guinn, and Danny Rivera who testified under oath that they essentially came upon [defendant] and [Escamilla] beating and stabbing David Quiroz who, because of intoxication, was helpless, had been dragged or taken somehow into a dark corner alone and defenseless where they carelessly punched and stabbed him until these three noticed and went over, took [defendant] off, took [Escamilla] off, and then beat up these two guys in defense of [Quiroz]. [¶] The other version from [Escamilla] and [defendant] and other witnesses, which Ill get to in a moment, is that [defendants] punch to Scott Largent was such an insult that it being his birthday and his house and his party that the whole scene touched against [defendant], and [Largents] friends wanted payback and to teach [defendant] a lesson, which in their terms meant a beating. [¶] David Quiroz, one of the pack, punched [defendant] back against a bush, where he and others brutally assaulted him four, five, six, were not sure, guys kicking and hitting [defendant] with more guys coming, wanting to get their piece of him. These are the two versions that you have to choose which one is the truth. And we cant go any further in this case until you make that first decision. I believe, as Im sure you know, that I think the evidence supports the second version, but I will go through and tell you why." And defendant concluded: "So I believe the question is this. When [defendant] was attacked by this mob of angry violent men, underneath them being pummeled by them, unable to move or get out, was it reasonable for him to believe his life was in danger or that he was likely to suffer great bodily injury if he didnt use deadly force?"
Defendant challenges the trial courts decision to instruct the jury in the language of CALJIC Nos. 5.54 and 5.56. He acknowledges that those and the other self-defense instructions correctly state the law. But he argues that CALJIC Nos. 5.54 and 5.56 were ambiguous and misleading under the facts of the case. He states that the jury could have found that he had initiated aggression or engaged in mutual combat as to Largent. He adds that the jury could also have found that the aggression or combat was never actually terminated but was instead continuous through the encounter with Quiroz. Since no evidence supports that he complied with the withdrawal steps that must be taken before an aggressor or mutual combatant may employ force in self-defense, he reasons that the effect of CALJIC Nos. 5.54 and 5.56 was to advise the jury to disregard his claim of self-defense as to Quiroz.
Recognizing that trial counsel did not request additional or modified instructions, defendant contends that the trial court had a sua sponte duty to cure the defects that he now claims. According to defendant, the trial court should have tailored the instructions so as to clarify that "the principles pertaining to withdrawal by an initial aggressor or mutual combatant [applied] to each separate altercation and that it could not simply assume that [defendant] was disqualified from claiming self-defense merely because it may have decided that he had attacked Largent or engaged in mutual combat with him without withdrawing and communicating such withdrawal in the manner specified in the instructions."
Alternatively, defendant argues that the propriety of the instructions in question may be reached by this court under Penal Code section 1259, which provides for review of any instruction given, refused, or modified, even in the absence of a request or objection, if the defendants substantial rights were affected.
As a final fallback, defendant makes a claim of ineffective assistance of counsel by asserting that a reasonably competent trial attorney would have addressed the instructional deficiencies, there could be no valid tactical reason for his trial counsels failure to do so, and such failure was prejudicial. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685.)
To forestall multiple levels of analyses, we address the propriety of the instructions.
In deciding whether instructional error occurred, we "assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." (People v. Mills (1991) 1 Cal.App.4th 898, 918.) In that context, we then "determine whether it is reasonably likely the jurors understood the instruction[s] as [defendant] suggests. [Citation]. In making that determination, we must consider several factors including the language of the instruction[s] in question [citation], the record of the trial [citation], and the arguments of counsel." (People v. Nem (2003) 114 Cal.App.4th 160, 165.) Even if we conclude that " `a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. " (People v. Hernandez (2003) 111 Cal.App.4th 582, 589.) Even if we conclude that a jury instruction is erroneous, the error "requires reversal only when it appears that the error was likely to have misled the jury." (People v. Owens (1994) 27 Cal.App.4th 1155, 1159.)
Here, the trial record, the language of the instructions, and the closing arguments in this case show that it is unlikely the jury understood the instructions in the way defendant urges.
First, this was a homicide trial as to Quiroz, not an assault trial as to Largent. By definition, defendants defense theory applied to the charged homicide, not to the uncharged assault. The panoply of self-defense instructions can only be reasonably understood in this context. Moreover, the basic, introductory self-defense instruction makes this point crystal clear. The trial court instructed the jury in the language of CALJIC No. 5.12 as follows: "This is justifiable homicide in self-defense. The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes. . . ." It is true that the trial court elsewhere gave a self-defense instruction in the context of assault. But that instruction did not apply to Largent given that neither defendant nor Escamilla was charged with assault as to Largent. In any event, it remains that it is counterintuitive to apply homicide self-defense principles to an uncharged assault so as to analyze how the principles apply to the homicide.
The trial court instructed in the language of CALJIC No. 5.30 as follows: "Self-defense against assault. It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent."
The trial court instructed the jury in the language of CALJIC No. 17.31 as follows: "The purpose of the Courts instructions is to provide you with the law so that you may arrive at just and lawful verdicts. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given Im expressing an opinion as to the facts." Generally, we presume that jurors follow the trial courts instructions. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Second, the language of CALJIC Nos. 5.54 and 5.56 mirrors the above truism. Both instructions specifically pertain to a defendants right of self-defense vis-à-vis his or her opponent, victim, or mutual combatant. In this context, the described adversaries can only refer to the person against whom self-defense is being asserted. In this case, that person is Quiroz, not Largent.
And finally, the parties arguments to the jury assure us that the jury did not misunderstand the instructions. Neither defendant nor the prosecutor relied on any principle embodied in CALJIC No. 5.54 or 5.56. Defendants theory was simply that Quiroz and others had assaulted him, causing him to self-defend. The prosecutors theory was that defendant was not self-defending given the stab wounds or, alternatively, given the deadly force used against an assault. At no time did the prosecutor suggest that defendants right of self-defense was dependent upon what happened between defendant and Largent. Defendant cites several of the prosecutors comments linking Largent with self-defense. But, taken in context, the comments generally relate to Largents unquestioned involvement in the big picture rather than relationship to CALJIC Nos. 5.54 and 5.56 principles.
We cite some examples of the comments that defendant offers but place them in context: (1) In informing the jury that not all instructions were applicable, the prosecutor urged that self-defense instructions did not apply by hyperbolically stating that only Largent and Quiroz were entitled to claim self-defense ("For instance, I dont believe theres any self-defense in this case at all, except for Scott Largent, for David Quiroz"). (2) In arguing that defendant and Escamilla waited on the driveway to provoke a fight instead of waiting for Morales, the prosecutor claimed that the two were "trespassers at that point, after attacking Scott Largent." (3) In debunking the self-defense claim, the prosecutor offered that defendant could not explain eight stab wounds and urged that defendant attacked Quiroz rather than vice versa given defendants previous assault on Largent ("And his behavior that day with Mr. Largent shows you that it was not [defendant] who was the person being attacked that night or who was the victim. These two defendants would tell you that they were the victims out there. You look at [defendants] injuries, and you look at Scott Largents injuries, this is an unprovoked attack and Largent obviously was . . . hurt more than [defendant] ever was"). (4) In continuing his theme about defendants violent, provocative nature so as to suggest that defendant attacked Quiroz rather than vice versa, the prosecutor offered that defendants assault on Largent was "a sneaky unprovoked attack . . . . The birthday boy was again too drunk really to defend himself."
motion for new trial
Defendant moved for a new trial or verdict modification under Penal Code section 1181, subdivision 6, which allows the trial court to grant a new trial or reduced verdict "When the verdict or finding is contrary to law or evidence." He argued that the evidence, at most, supported a verdict of voluntary manslaughter on an imperfect self-defense theory. He criticized the jury for rejecting the police-statement accounts of Stephen Kenzler (to the effect that Quiroz led the group who assaulted defendant and Quiroz threw the first punch) and accepting the trial-testimony accounts of the participating witnesses (Largent, Guinn, and Ramirez) who admitted assaulting defendant only after seeing him fighting with Quiroz. He urged that Kenzlers trial testimony (no memory; did not see anything) was not credible because Kenzler admitted a friendship with the participating witnesses. And he urged that the participating witnesses testimony was not credible due to their motives to lie so as to avoid prosecution for assault or homicide. He asked the trial court to exercise "its independent conclusion as to the sufficiency of credible evidence to support the verdict" in its role as a "13th juror."
In denying the motion, the trial court articulated the following: "The matter being submitted, pursuant to California law, specifically Penal Code Section 1181, the Court does have inherent power when the verdicts of a jury or the facts of the evidence so warrant that a judge should in the interest of justice grant a new trial and/or reduce a verdict of a jury to a lesser included offense. And on some occasions even a lesser related offense, the Court has inherent power to do that. But before I comment directly on that issue, I must state that this is a very limited and narrow statute that the Court has such authority. And actually there are only nine specific reasons listed that a judge should exercise that inherent power and take such drastic action as to set aside a verdict or grant a new trial when, in the Courts opinion, a great injustice has been done or the misconduct of jurors or some other violation of Court rules or law. [¶] In our particular case the motion points out that the jurys verdict or the jurors did not consider some testimony, either taped versus oral testimony in court, the conflicts between those, and that the jury didnt consider those and they should have come to either a not guilty verdict and/or a conviction for a lesser offense than murder. However, in California law and actually all the laws of the United States of America, juries are for the sole purpose, they are the sole believers, the sole judges of the facts in this case. They are to consider motive, bias, or interest of any witness. They further are to consider prior consistent and inconsistent statements with ones that were previously taped or made to law enforcement officers or to other persons on different occasions. These are called out of court declarations versus testimony in court while under oath. The jurors are even instructed that they are to consider the totality of all the facts and circumstances when they make the decision. [¶] A jury has its inherent power to either accept or reject testimony or evidence from any witness. The Court finds no deviation or breakage of any law or Court rule in the jurys verdict. The jurys verdict was guilty as to second degree murder. Its obvious from that verdict in itself that they considered lesser offenses. Obviously second degree murder is a lesser offense than that of first degree murder. And the Court finds within the totality of all the evidence presented to them, this clearly was a finding within the scope and the preview [sic] of the evidence that was admitted to the jury. So the motion for a new trial and/or modification for murder to manslaughter based on those facts is denied."
Defendant contends that "the trial court misapprehended its role in deciding the motion and failed to independently reweigh the evidence presented to the jury at trial and assess the probative force and credibility of such evidence. Rather, the court relied on the determination reached by the jury in denying the motion."
The proper standard for the trial court in reviewing a motion for a new trial is set forth in People v. Robarge (1953) 41 Cal.2d 628, 633 (Robarge): "While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the [trial] court . . . should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] . . . [The fact that the] defendant is entitled to two decisions . . . , one by the jury and the other by the [trial] court on motion for a new trial . . . does not mean, however, that the [trial] court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.] [¶] . . . [T]he [trial] judge has very broad discretion and is not bound by conflicts in the evidence."
Here, the trial court articulated the correct legal standard (sufficient credible evidence to support the verdict) when it concluded that "within the totality of all the evidence presented . . . [the] finding [was] within the scope and the preview [sic] of the evidence that was admitted to the jury."
Defendant interprets the trial courts comment differently. According to defendant, the comment shows that the trial court defended the jurys decision rather than independently weighed the evidence. Defendant poses that the trial court should have specifically said that it would have reached the same verdict or there was sufficient credible evidence to support the verdict. This analysis is erroneous.
Reliance by the trial court on an improper standard must appear affirmatively on the record. (Estate of Rohde (1958) 158 Cal.App.2d 19, 24.) We must presume that the trial court properly performed its duty. (People v. Cummings (1956) 141 Cal.App.2d 193, 203.)
Here, defendant relies on, at most, ambiguous remarks. He therefore necessarily fails to make the required affirmative showing.
In People v. Gorshen (1959) 51 Cal.2d 716, 734, the court articulated the following in the context of a ruling on a new trial motion: "In accord with the normal process of appellate review, we accept those statements which support the judgment as representing the courts final determinations, and interpret favorable to the judgment those statements which are susceptible of such interpretation." In other words, if, in ruling on a new trial motion, a trial court says things that indicate it understood its proper role, and said things indicating it did not, the appellate court is to focus on those statements that directly and by inference support the judgment, i.e., the ruling on the motion. This notion has otherwise been described, as "plac[ing] the most charitable interpretation possible" on the trial courts remarks so as to conclude that it used the proper standard. (People v. Dickerson (1969) 273 Cal.App.2d 645, 650; accord, People v. Browning (1975) 45 Cal.App.3d 125, 137, overruled on other grounds in People v. Williams (1976) 16 Cal.3d 663, 669.) It has otherwise been described as follows, "[U]nless the record makes the assumption preposterous . . . we must assume that the [court below] applied correct legal principles to [its] rulings." (Barajas v. Superior Court (1970) 10 Cal.App.3d 185, 192, fn. 6.)
Here, had the trial court made statements, some of which indicated its adherence to the proper standard, and others which did not, we would have focused on those remarks that directly or inferentially supported the denial of the motion. (See, e.g., People v. Price (1992) 4 Cal.App.4th 1272, 1275 [exercise of independent judgment was reflected in statement that evidence was sufficient; further comment that substantial evidence supported jurys determination was surplusage].) Such resort is not necessary, however, because the trial courts remarks are consistent with adherence to the proper standard.
We observe that defendants underlying suggestion is that, in deciding a new trial motion, a trial court must sit as a "13th juror," and, if it concludes that it would have decided the case differently, it must grant the motion. But this proposition conflicts with Supreme Court authority.
Robarge itself states that the fact that a defendant is entitled to the decision of the jury and of the trial court, the latter on a new trial motion, "does not mean . . . that the court . . . should decide what result it would have reached if the case had been tried without a jury." (Robarge, supra, 41 Cal.2d at p. 633.)
In People v. Risenhoover (1968) 70 Cal.2d 39, the trial court said, while denying a new trial motion, " `If this had been a trial before the Court without a jury, it is probable, if not certain, that . . . this Court would have had a reasonable doubt as to the extent of the [d]efendants guilt and accordingly, not have decreed the death penalty. . . . [¶] . . . [¶] . . . `[I]t is not for one man to substitute his judgment for twelve. " (Id. at pp. 57-58.) The California Supreme Court noted that the trial court had read the parties briefs (as the trial court said), which included references to the proper standard under Robarge (in his trial court papers, defendant cited Robarge here). The court further found that the trial courts remark disagreeing with the defendants contention that the jury disregarded the weight of evidence was further proof that the trial court applied the proper standard. (Ibid.) The court then referenced the trial courts statements about having a reasonable doubt about the extent of the defendants guilt that would have precluded it from imposing the death penalty and being unable to substitute its judgment for that of the jury. The court concluded that these statements did not indicate that the trial court had abdicated its proper role in deciding a new trial motion because of what it had also said about the weight of evidence and read in the briefs. (Ibid.)
Thus, a trial court is not required to grant a new-trial motion even if it articulates that it would have reached a result different from the jurys result. Appellate courts have applied this principle also.
For example, in Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 414, the court held that the trial court, after having found sufficient credible evidence to support the verdict, was not required to grant a new trial merely because it had also indicated that it would have decided the case differently. The courts made the same point in Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 216, and People v. Trotter (1984) 160 Cal.App.3d 1217, 1221. And, in People v. Taylor (1993) 19 Cal.App.4th 836, 848, the court reversed a new-trial grant, saying, "It is clear to us that in granting the motion, the trial court simply decided what result it would have reached if the case had been tried without a jury."
The test for new trial motions is the same for civil and criminal cases. (People v. Capps (1984) 159 Cal.App.3d 546, 592.)
"The statement by the trial judge that `the Court sits as a thirteenth juror has an unfortunate connotation; the phrase is misleading, and it does not properly describe the function of the trial judge in passing upon a motion for a new trial. As we have seen, it is the province of the trial judge to see that the jury intelligently and justly performs its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict." (Robarge, supra, 41 Cal.2d at p. 634; see also, People v. Lopez (1969) 1 Cal.App.3d 78, 84 [the 13th juror rule is a misstatement of the law and has been discredited].)
Probably the best explanation for the unfortunate continued use of the concept by some courts is found in People v. Veitch (1982) 128 Cal.App.3d 460, 467-468, which, while explaining the use, also condemned it, thusly, "The use of the term . . . is unfortunate, for it tends to obscure the trial judges role more than it clarifies it. California courts have rejected the use of the term to describe the trial judges role in considering a [new trial] motion. [Citations.] But it is clear that the California trial judge acts as a ` "13th juror" as the term is used by the United States Supreme Court in Hudson [v. Louisiana (1981) 450 U.S. 40, 44], since the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency."
Our new-trial concepts are based on statute rather than United States Supreme Court authority. "Although the power of the court to grant a new trial upon the ground of insufficiency of the evidence was a part of the common law, . . . the power of a California trial court to hear and decide a motion for a new trial in a criminal case is strictly limited to the authority granted by Penal Code section 1181. [Citation.] . . . . The 1927 amendment [to that section] added language in subdivision 6 empowering either the trial court or an appellate court to modify the judgment to a lesser degree or a lesser offense. . . . [¶] . . . [¶] By case law it is established that the standard of review by a trial court acting under this section is different from the standard used by an appellate court under the same section. . . . [¶] . . . [¶] Though the trial court, by reason of its greater familiarity with the trial proceedings, may grant a new trial [in] circumstances under which an appellate court would refuse to act, each court is exercising a reviewing function when it exercises its power under subdivision 6." (People v. Serrato (1973) 9 Cal.3d 753, 760-761, italics added, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
In summary, a trial court can grant a motion for a new trial even if the evidence is legally sufficient and it can deny a motion for a new trial even if it disagrees with the verdict. Here, in the remarks assailed by defendant, the trial court was simply stating that "the jury was reasonable in believing the witnesses it apparently had believed in reaching the verdict." (Kelly-Zurian v. Wohl Shoe Co., supra, 22 Cal.App.4th at p. 414.) The trial court therefore "properly declined to substitute its own judgment for that of the jury." (Ibid.)
disposition
The judgment is affirmed.
WE CONCUR:
Rushing, P.J.
Elia, J.