APPEAL from a judgment of the Superior Court of Fresno County. M. Bruce Smith, Judge. (Super. Ct. No. F04902626-1).
The opinion of the court was delivered by: Cornell, Acting P.J.
CERTIFIED FOR PUBLICATION
A jury convicted Tannen Soojian of various crimes resulting from an armed robbery of Joyce Ahumada and her son, Morgan Ahumada.*fn1 Joyce was shot during the robbery, sustaining serious injuries. The crimes for which Soojian was convicted included attempted murder (Pen. Code, §§ 187, 664)*fn2 and robbery (§ 211). Numerous enhancements also were found true.
Soojian's defense concentrated on showing inconsistencies in the prosecution's evidence to establish that he was not the perpetrator. During the prosecution's case, unexpected evidence was elicited that led Soojian and his counsel to suspect that Soojian's cousin, Aaron Bolin, was the perpetrator. Evidence was introduced in an attempt to establish Bolin's guilt. The jury rejected this evidence and found Soojian guilty as charged and found all enhancements true.
After the verdicts were reached, Soojian located additional evidence that implicated Bolin. Soojian moved for a new trial based on this newly discovered evidence. (§ 1181, subd. (8).) The trial court denied the motion.
In the first appeal (People v. Soojian (Mar. 16, 2009, F053842) [nonpub. opn.]), we reversed the order denying the new trial motion. We concluded that the trial court had utilized an incorrect standard when analyzing the motion and remanded the matter to the trial court to reconsider the new trial motion applying the correct standard.
On remand, the trial court again denied the motion. Soojian contends the trial court erred for two reasons. First, he argues the trial court erroneously refused to consider some of the evidence he presented. Second, he claims the trial court erroneously imposed on him the burden of establishing that he was entitled to a new trial only if he could establish that he probably would have been found not guilty if the new evidence had been presented to the jury. Instead, Soojian contends that all he was required to prove was a probability of a better result, which included a mistrial because the jury could not reach a verdict (i.e., a hung jury).
The People argue the trial court did not err in refusing to consider some of the evidence presented by Soojian. The People concede, however, that the trial court imposed an incorrect burden on Soojian.*fn3 The People argue this error was not prejudicial and ask us to affirm the judgment.
As we shall explain, we agree with Soojian on both points and reversal is required. The difficult issue, in our view, is the appropriate remedy. Soojian argues the newly discovered evidence establishes he is entitled to a new trial as a matter of law and urges us to vacate the judgment and order a new trial. The People argue we should either affirm the judgment because the mistake was not prejudicial or remand to allow the trial court to rule on the motion utilizing the correct standard.
We conclude that in this case the judgment must be reversed and a new trial ordered. We are aware that it is unusual for an appellate court to conclude that newly discovered evidence entitles a defendant to a new trial as a matter of law. In this case, however, the evidence introduced at trial that implicated Soojian in the crimes, while sufficient to support the judgment, was far from overwhelming. We conclude the newly discovered evidence raises significant issues as to the correctness of the verdict. While there is more than sufficient evidence to retry Soojian, fairness and justice require that a verdict is reached only after a jury has heard all of the relevant evidence.
FACTUAL AND PROCEDURAL SUMMARY
I. The Evidence Presented at the Trial
On April 18, 2004, Joyce and Morgan were delivering the Sunday morning newspaper in Joyce's small pickup when she observed a vehicle behind her being driven erratically. The vehicle had its bright lights turned on and stayed behind Joyce's vehicle as she delivered papers. When Joyce stopped at a newspaper box at Calhoun Ranch, the vehicle passed her very slowly. As the vehicle passed, the driver turned his body around very slowly and Joyce could see his face. The vehicle then backed up and stopped beside Joyce's vehicle.
The vehicle was a very large club cab-type pickup with four doors. Its engine was loud like a diesel engine. The window of the front passenger door of the pickup opened. One person, a man, was in the pickup. He asked Joyce how to find Clovis. She responded that it was straight ahead. The man said he could not hear her and asked if he could get out and show her an address he was trying to find. Joyce agreed. As the driver approached, Joyce could see his face. The pickup was on the pavement but pulled off slightly. The windows of the pickup were tinted, the floor was messy, and the interior smelled of stale cigarettes. The interior was a dark vinyl.
When the man arrived at the window of Joyce's vehicle, he leaned very close to Joyce and pointed a handgun at her face. He yelled at Joyce, stating that if she looked at him, he would shoot her. The man yelled at Morgan to stop looking at his face. The man stated he was there to rob Joyce. Joyce dropped her head down and told Morgan to give the man her wallet, which was in the glove compartment. Morgan gave the wallet to Joyce, and she handed it to the man. The man yelled repeatedly that if Joyce or Morgan looked at him, he would shoot them.
The man next instructed Joyce to get out of her vehicle. He opened the vehicle door and put the gun in Joyce's side when she got out of the vehicle. Morgan was instructed to stay in the vehicle. The man grabbed Joyce's arm and directed her around to the other side of the vehicle. Joyce kept her head down and did not look at the man. When the two arrived at the passenger side of the vehicle, the man ordered Morgan out of the vehicle. When Morgan got out of the vehicle, he dropped the paper route maps on the ground.
The three then walked to the man's pickup. When Morgan looked at the man, the man told him to stop and appeared to become upset. The man instructed Morgan to get into the bed of his pickup. Morgan climbed up on a very large tire and into the bed. The man then told Morgan to lie on his stomach. Morgan did so, with his head facing the tailgate.
The man then directed Joyce to the front passenger door, opened the door, and told her to get inside the cab. Joyce continued to keep her head down because she did not want to see or have the man start yelling again. She did, however, glance at his face as she was trying to convince him to release Morgan and her. Joyce was told to get on her knees on the floor facing the rear of the pickup. Joyce put her head down on the seat, and the man climbed in the pickup through the same door. The man paused while he was behind Joyce, and she could feel that he had an erection. The man moved over to the middle of the bench seat. The man next told Joyce to move next to his legs, but then he moved over to the driver's seat. He had the gun pointed at Joyce's head. Joyce noticed that the gearshift was on the steering column as the man attempted to put the vehicle into gear.
Joyce then exploded and started screaming "no." She tried to grab the keys or the gearshift to keep the pickup from going anywhere. The man was hitting Joyce in the head with the gun. Joyce felt the keys on the steering column. There were "quite a few" keys on the key ring. The man then hit Joyce on the bridge of her nose. The man was yelling at Joyce, calling her names. The two struggled and then the man became upset and told Joyce he was going to kill her. He pulled the gun up and shot at Joyce twice. Joyce reached for the passenger door handle. She felt pressure on her chest near her right shoulder. Joyce was able to open the door and escape from the pickup. The man jumped towards his door. Joyce yelled at Morgan to get out of the pickup. Morgan barely was able to get out of the pickup before it jolted forward. Joyce and Morgan started running. The pickup left the scene.
Joyce ran to a residence and yelled for help. She felt wet and knew she had been shot. She had surgery to stop the bleeding. The surgery successfully stopped the bleeding in her chest, but she had many small cuts on her head that did not stop bleeding for days.
Joyce had never seen the man before, and he did not say his name. Joyce stated the man was wearing jeans and a white, short sleeve, collarless shirt with buttons on the front that went part way down. He was not wearing gloves. His face was red, as if it were sunburned, his hairline slightly higher, and he was taller than Joyce's five-foot three-inch height. He was not "extremely tall," and appeared to be in his 30's or 40's. He was clean shaven. She did not smell an odor of alcohol on the man's breath.
At trial Joyce identified Soojian as the man who attacked her. She testified at trial that he was stockier than Soojian appeared at trial, and he had hair that was a lighter shade than Soojian's. Soojian was younger than the age range described by Joyce. Soojian had a goatee. Joyce testified that exhibit 46, a photograph of the interior of Soojian's pickup, did not look like the pickup the man drove because there was an armrest and center console in the picture.
Shortly after the incident, Joyce described the man as a White male with short reddish-colored hair, 35 to 40 years of age, stocky, and approximately five feet four inches tall. Joyce never recovered her wallet or any of its contents.
Shortly after Joyce's surgery, Detective Patrick Oh and some other officers showed Joyce some pictures and asked her if she could identify the perpetrator. Joyce pointed to someone and the officers left. Joyce said that she pointed to one photograph that looked like the perpetrator. She recognized the hairline, nose, and other facial characteristics. "[T]here was [sic] other faces and that was the one I picked." Joyce identified Soojian's vehicle as the pickup the perpetrator drove on the day of the shooting.
Morgan was 19 at the time of trial and 16 on the day of the shooting. Morgan noticed a white pickup, which appeared to be a GMC, swerving in front of him and his mother as they were delivering the newspapers. The pickup pulled to the side of the road. Joyce drove past the pickup. The pickup drove past Morgan and Joyce while they were delivering a newspaper to a ranch. The pickup then stopped and backed up. A man in the pickup asked Joyce if she knew how to drive to Clovis. The man got out of his pickup to show Joyce an address. When Morgan, who had been leaning out of the vehicle to deliver the paper, looked back, the man was pointing a gun at Joyce's head. The man stated he was going to rob Joyce and Morgan. Joyce told Morgan to get her wallet out of the glove compartment and she handed it to the man.
The man then told Joyce to get out of the vehicle with her arms raised and instructed her not to look at him. Morgan looked at the man only slightly because of the gun. Joyce and the man walked to the passenger side of Joyce's pickup where the man ordered Morgan to get out of the vehicle. Morgan stared at the man, who screamed at Morgan to stop looking at him. The man ordered Morgan to get into the bed of the pickup, face down. All four tires were on the pavement.
Morgan then heard the man order Joyce to get into the cab of the pickup. The pickup started to move and then both Joyce and the man began screaming. The pickup began moving and stopping erratically. Morgan heard the man say "now you get shot," and then heard two gunshots. Joyce jumped out of the pickup and yelled at Morgan also to jump. Joyce and Morgan ran away. The man stopped and got out of his pickup. He pointed his gun at Morgan and Joyce but then got into the pickup and left without firing another shot. Joyce and Morgan ran towards a house. Joyce hopped over a fence and ran to the house. Morgan ran back to Joyce's pickup to get the cell phone. He called 911 to obtain assistance.
Morgan found two seeds in his hair while emergency personnel were attending to Joyce. A deputy sheriff took the seeds as evidence. Morgan noticed the same seeds in the bed of the man's pickup. Morgan described the pickup as a double cab, four doors, sounded like a diesel engine, and had large tires and wheels. Morgan recalled there was something like a horse bridle and a toolbox in the back of the man's pickup.
Morgan identified exhibit 41, a photograph of Soojian's pickup, as the perpetrator's pickup and identified a picture of the bridle found in the back of Soojian's pickup as the bridle in the perpetrator's pickup. He also identified a yellow substance as being inside the man's pickup bed from exhibit 44. Morgan testified that the toolbox in the pickup did not extend all the way across the truck bed.
Morgan spoke with Oh at the hospital. Oh showed him some photographs and Morgan identified the man. After reviewing Oh's police report, Morgan stated he could not identify the man in the pictures he was shown by Oh. Morgan did not identify Soojian at trial as the perpetrator.
Larry Crawford lived close to the location of the incident. He recalled hearing a woman screaming, a gunshot, and then silence. Next, he heard a commotion, like someone getting in and out of a vehicle, and then the sound of a vehicle taking off quickly. As the vehicle departed the scene, Crawford heard a noise that sounded as if the vehicle had a construction rack. Crawford was working in construction at the time and he heard that sound every day.
On April 18, 2004, at 3:54 a.m., Austin Herion, a deputy sheriff with the Fresno County Sheriff's Department, was dispatched to an area near the intersection of Shaw Avenue and DeWolf Avenue in Fresno County. At the scene, Herion met Morgan, who told him his mother had been shot. Morgan told Herion where his mother was located. Herion found her lying in a pool of blood. Joyce was not able to speak, but she indicated she was okay. An ambulance arrived and the attendants began caring for Joyce.
Herion obtained a statement from Morgan, who appeared to be unharmed. Morgan could describe the perpetrator only as a White male. Morgan provided a description of the perpetrator's vehicle as a white two-door Ford or Chevy pickup with two occupants. When Herion talked to Morgan a second time, he stated the vehicle was a four-door pickup. Morgan also told Herion that Joyce's credit cards should be in the vehicle. Joyce later stated it was a four-door pickup. In his radio transmissions, Herion stated that Joyce was shot in the suspect's vehicle, so there should be a significant amount of blood in the vehicle.
Herion next assisted other deputies in searching the area. Herion located a written estimate with an address on it. The estimate was from a company called Tri R. Ceramics and listed a customer name, address, and phone number. The customer listed on the estimate testified that Soojian had given her the estimate approximately one to two weeks before she was contacted by the police. The estimate was dated April 13, 2004, five days before the shooting.
On April 18, 2004, at 7:13 a.m., another officer issued a bulletin asking other units to be on the lookout for a full-size, four-door pickup with a solid rear window. The suspect was described as a White male in his mid-40's, short, medium build, with thinning brown hair. The weapon was described as a silver handgun, caliber unknown.
Deputy Sheriff Michael Clark responded to the scene and then to the hospital to speak with Joyce. He spoke with Joyce before she went into surgery. Considering her injuries, she had a very good demeanor. Joyce described the perpetrator as a White male adult, aged 38 to 45, five feet four inches tall, with a heavy build. He was "clean-cut" and was wearing a white T-shirt. The reference in the report to the suspect being "clean-shaven" was erroneous.
At the scene, shoe tracks were observed and documented along the left rear portion of Joyce's pickup. The shoe tracks were compared to the sandals recovered from under Soojian's residence. There were no individual characteristics, but the comparison suggested that the shoes could have left the tracks found at the scene.
An empty cigarette pack also was found at the scene. No fingerprints were recovered from it. The driver's door of Joyce's pickup also was processed for fingerprints. A small partial palm print was recovered from the driver's doorjamb. The palm print was consistent with someone opening the door with his or her left hand. The palm print later was compared to Soojian's palm print. It was determined that Soojian did not leave the palm print on Joyce's vehicle. The palm print was not run through any automated data bases.
Deputy Sheriff Mark Chapman was at Soojian's residence, a mobilehome, when a search warrant was obtained. He inspected Soojian's vehicle, which he described as a white four-door GMC diesel pickup. The pickup was unlocked, with the keys in the ignition. The front seat center console was in the "down" position. The console folded up to make a front bench seat. On the front passenger seat was a small metal box in which forms could be stored and on which one could write. Recovered from the interior, among other items, was a checkbook and a paycheck stub that indicated Soojian had been paid gross wages of $600 for the preceding week. There also was a coffee cup located on the center floorboard in front of the center console. A torn piece of paper was recovered from the pocket in the driver's side door of the pickup.
In the bed of the pickup was a yellow tow strap, two horse halters, two ropes, a bag of grout, a toilet seat still in the box, chipped grout strewn across the bed, and some vegetation. On the outside of the pickup, Chapman noticed an area along the passenger side just to the rear of the rear wheel that appeared to have been wiped recently. There was an area on the passenger side just above the rear tire that appeared to Chapman to be an impression left by some type of cloth. Before the pickup was towed, the inside of the pickup bed was vacuumed by a technician for a more thorough inspection.
Tire impressions were taken from the pickup. The tire tracks at the scene that were located just behind Joyce's pickup were not from Soojian's pickup. Samples of possible blood stains were taken from above the stereo in the dash area, from the steering wheel, and from the front passenger side door. There were no cigarettes, nor were there any cigarette butts in the pickup. No pellets were found in the pickup. There was nothing located in Soojian's pickup that belonged to Joyce or Morgan. Nor was Joyce's wallet or its contents recovered from the scene. Hair found in the bed of Soojian's pickup did not belong to Morgan. Nor were there any seeds in the bed of the pickup that matched the seeds found in Morgan's hair.
The search of the outside of Soojian's residence located a pair of black pants that were rolled around a pair of sandals. These items were located behind the skirt surrounding the mobilehome. The pants were a size 36-inch waist and 34-inch inseam. The sandals were size 11. Inside the house detectives located some .22-caliber rifle ammunition with small pellets inside. A cartridge was disassembled and the pellets weighed 53.8 grains. The cartridges would not fit into a standard .22-caliber magnum revolver or semiautomatic handgun. There is one semiautomatic revolver called an "Auto Mag" that would fire the cartridges. They recovered a shirt, which had a stain that might have been blood. There were several rifles found at the residence, but no one determined whether any of the rifles would fire the ammunition recovered from the inside of the residence.
When Soojian was arrested, he was wearing size extra-large underwear (size 42 to 44) and size extra-large shorts. Size 10 shoes were recovered from the residence. Blue jeans seized at the residence were a size 38-inch waist and 32-inch inseam.
The written estimate recovered from the scene was determined to match the torn piece of paper found in Soojian's pickup.
DNA testing yielded the following relevant results: (1) The scrapings from Soojian's fingernails contained only Soojian's*fn4 DNA; (2) the blood stain on the written estimate recovered at the scene contained only Joyce's*fn5 DNA; (3) the blood stain on the steering wheel of Soojian's pickup contained DNA from both Soojian and Joyce and one in every 11 million individuals in the general population; and (4) one stain on the black pants contained DNA that was consistent with Joyce's*fn6 DNA. The statistical probabilities would be much less if related individuals were considered. If a related individual were tested, one would expect the two to have many of the same values at specific markers. It would be expected that Soojian's DNA would be on the steering wheel of his pickup since he used it regularly.
Analyses of the samples taken from Soojian indicated there was no gunshot residue on either his right or left hand.
At trial, the testimony produced two facts that appeared to surprise both the prosecution and the defense. Morgan testified that the perpetrator's pickup had an attached metal toolbox in the bed of the pickup. Crawford, the neighbor who heard the perpetrator's pickup when it fled the scene, testified that he recognized the rattling sound made by the pickup as it left the scene as the sound of a construction rack attached to the bed of the pickup. Soojian's pickup did not have a toolbox or a construction rack.
As a result of this testimony, Soojian introduced pictures of a pickup owned by Bolin. The pictures showed the pickup towing a horse trailer and having a construction rack and toolbox attached to the bed of the pickup. Soojian's counsel also requested that Oh attempt to determine through the Department of Motor Vehicles (DMV) whether Bolin owned the pickup in 2004, but a DMV search required a license plate number for the vehicle, which Oh did not have.
Oh described Bolin as approximately five feet 10 inches tall and weighing 230 pounds, a size similar to Soojian. Soojian's father testified that Bolin was a few inches shorter than Soojian. Soojian also elicited testimony from Angela Butler, the DNA expert, that the statistical analysis on which the probabilities were based assumed that the relevant individuals were not related. If there were two related ...