(Super. Ct. No. 09F05389)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jan-Randolph Espanol of assault with a deadly weapon (a baseball bat). (Pen. Code, § 245, subd. (a)(1).) The trial court suspended imposition of sentence and placed defendant on probation. Defendant timely filed this appeal.
On appeal, defendant contends the trial court improperly denied his motion for a new trial predicated on newly-discovered evidence. As we shall explain, and contrary to defendant's view, the trial evidence against him was strong, and the new evidence did not tend to undermine the evidence that defendant himself committed the assault with the bat. The trial court--which was in the best position to assess the strength of the evidence--did not abuse its discretion in concluding there was no reasonable possibility that the new evidence would have made a difference in the trial's outcome.
Accordingly, we shall affirm the judgment.
Given the nature of the briefing, we provide a thorough summary of the evidence. It shows that an otherwise pleasant Memorial Day weekend outing at the American River was marred by violence: After the victim objected to a man leering at his girlfriend, he was beaten by a group that included defendant.
Michael Rasmussen testified he was 21 years old and had attended Casa Roble High School for two years. On the afternoon of May 23, 2009, he had been at the river with his girlfriend Allison Robeson, near the Sunrise Boulevard bridge. At about 6:00 p.m., they walked back to their car. He saw two men in a Mercedes. The driver, a "White male" in his 20's, stuck his head out of the window and ogled Robeson. Rasmussen identified defendant in court as the passenger. Both men in the Mercedes were shirtless, and defendant had "a lot of tattoos on his neck and his arms and stuff."
Rasmussen testified that he asked the driver "'what's up', you know, because he was blatantly, you know, looking." After Rasmussen spoke and made a gesture, the men got out of the Mercedes, and Rasmussen saw a red Chevrolet Tahoe "turning around down the street to come back" towards him. Rasmussen admitted telling the police that he waved his arms and shrugged his shoulders when he said "'what's up.'"
The passenger and driver of the Mercedes approached Rasmussen, and the driver tried to "aggravate[e]" the situation, but Rasmussen remained silent. Two people then got out of the Tahoe and approached Rasmussen. The Tahoe driver was "about six-two, 190 pounds, white male, shirtless," but Rasmussen only had a vague memory of the Tahoe passenger. When all four men were facing Rasmussen, they tried to pick a fight, but he remained silent. The Tahoe driver then punched Rasmussen in the face, knocking out a tooth. Two other men, including defendant, attacked Rasmussen, who was knocked to the ground. Although he was curled up to protect his head, Rasmussen "could see through the gaps of my arm who was hitting me."
Rasmussen testified the attack seemed to ease, but then (after Rasmussen displayed a switchblade) defendant went to the Mercedes and retrieved a baseball bat--similar to a wooden Louisville Slugger--and began hitting Rasmussen while he was on the ground, and hit him 10 to 15 times.
The assailants then left the area, with defendant again a passenger in the Mercedes. However, Rasmussen had seen a police report indicating he had identified defendant as the driver of the Mercedes, and it is possible he did say that to an officer. He told the officers the bat-wielder was "Hispanic, Asian or possibly, like, Samoan," and described the others as "just white, Caucasian."
Robeson drove Rasmussen to the hospital, and at trial he described his various injuries.
Rasmussen testified he had known defendant as "Jaran Espanol" at Casa Roble High School, but had not recognized him during the attack. He did not recall going to the same middle school as defendant. After the attack, Rasmussen talked with friends and family about what had happened, and eventually spoke with his former classmate, Jacob Ciongoli. Rasmussen described the Mercedes to Ciongoli as a "newer class model" having the same "big shiny chrome rims" that Rasmussen had on his car, and described the Tahoe "as a big red Tahoe with big ...