IN RE: Rodney HARRISON on Habeas Corpus. (1983)

OPINION

I.

Defendants David Lopez and Rodney Harrison were jointly charged with murder and arson.   They were tried separately and their appeals from the ensuing judgments will be so treated.   In addition, defendant Harrison has filed a petition for writ of habeas corpus.

II. LOPEZ

Defendant Lopez was found guilty of first degree murder (Pen.Code, § 187) and arson (Pen.Code, § 451, subd. (d)).  The jury found that he did not personally use a firearm during the commission of the murder (Pen.Code, § 12022.5).

A. FACTS

 Prosecution Evidence

Lopez, Harrison, and the victim, Craig Brock, were all employed at the Sunnyside Drive-In theater in Fresno.   Lopez and Harrison were friends and socialized together frequently after work.

Lopez did not like Brock, telling another employee that Brock was the boss' “snitch.”   Lopez believed Brock had talked to their boss about Lopez' work performance and that as a result of this talk Lopez had gotten in trouble with the boss.   Their boss could tell there was friction between the two men, that they did not like each other.

On May 22, 1981, Lopez was fired.   He was fired for continuous instances of not following company policy.

In the early-morning hours of July 14, 1981, Lopez, Harrison, and Kevin Butterfield set out in Harrison's car to burn Brock's car.   Butterfield, a minor, had only met Lopez and Harrison three or four days previous to this but the three had already become beer drinking buddies.   Butterfield testified that Harrison drove with Lopez in the front seat and Butterfield in the back seat.   Harrison parked near the Brock residence.   Harrison and Lopez got out of the car and got something out of the trunk as Butterfield remained in the back seat.   Lopez and Harrison walked off toward the Brock residence.   They returned in about 10 minutes, laughing and smelling of gasoline.   Just as they returned to the car Butterfield heard an explosion.   After they drove away from the scene Lopez told Butterfield that he and Harrison had burned the car of a guy who worked at the Sunnyside Drive-In theater who had “snitched” on Lopez and gotten him fired.

A captain of the Fresno Fire Department determined that gasoline had been poured completely around the vehicle and then lit.

Kevin Butterfield was present with Lopez and Harrison when Lopez suggested taking potshots at the guy at the drive-in who had gotten Lopez fired.   On the first occasion Harrison's response was that that was crazy because someone would hear the shots.   On the second occasion there was no response from Harrison to Lopez' suggestion.

Lopez possessed a .30 caliber semi-automatic military-issue carbine, an M–1.   Lopez had the rifle with him on several occasions and Butterfield saw it in Harrison's car at least twice, the last time being on the day the victim was shot.

In June and July Lopez was renting a room in a private residence, that of a Mr. Loreto.   A Mr. Molano also rented a room in the Loreto house.   Lopez had his own separate telephone in his room, equipped with a recording device to record calls and messages.   Molano had Lopez' permission to use the telephone and was familiar with the sound of Harrison's voice.   June 15, 1981, was Molano's birthday and he played the recording of the incoming calls to see if anyone had called to wish him a happy birthday.   One of the recorded messages was from Harrison telling Lopez that “they had found out who was the one that snitched ․” and “they were going to snuff him.”

Lopez' landlord, Loreto, knew that Lopez kept the rifle in the house.   Around the 4th of July Loreto demanded that Lopez move out of the house because of Lopez' rowdiness.   The men got into a fight, after which Loreto surreptitiously removed the cartridges from Lopez' rifle because he felt Lopez might do something drastic out of anger.

Late in the evening of July 21, 1981, Brock was working at the drive-in out on the grounds.   Around midnight a patron named Harris heard scuffling noises outside the theater fence.   He heard the sound of two or three men, one of whom had a Mexican accent, picking on another man.   Then he heard a loud, surprised scream from one of the voices, then a period of silence, and then several high-caliber rifle shots.   He recognized the sounds as a high-caliber rifle from his deer hunting experience.

At 1 a.m. that night Brock's body was found by a theater employee on the ground outside the theater fence.   The subsequent autopsy revealed Brock had been stabbed twice in the back, shot twice in the back, and shot twice in the back of the head.   The stab wounds would not have been fatal but any of the four bullet wounds would have been.   The two gunshot wounds in the head blew out the victim's forehead and portions of his brain, which were lying on the ground next to what remained of his head.   It was the opinion of the pathologist who testified that Brock had received the stab wounds first and then the two gunshot wounds to the back while he was still on his feet.   Then after he had fallen to the ground he had been shot twice in the head.

Ballistics analysis revealed that some spent cartridges found near Brock's body had identical markings to the cartridges Loreto had removed from Lopez' rifle.

After his arrest for Brock's murder Lopez wrote a letter to his friend, Mike Flores, asking Flores to testify that Lopez had sold the murder weapon to Kevin Butterfield in Flores' presence prior to the murder.   Flores testified at trial that the series of events discussed in the letter was not true and that he never did see Lopez sell the rifle to Butterfield.

 Defense

Lopez testified in his own defense, contradicting nearly all of the evidence against him.   He testified that he got along well with Brock, that he had not been fired from his job but had quit, and that he had sold his gun prior to the murder to Butterfield in Flores' presence.   He denied any involvement in the arson or the murder and testified he had been at home when the car was burned and when Brock was shot.

B. PHONEMATE MESSAGE

A significant part of the prosecution's evidence of premeditation consisted of the testimony of Robert Molano who recognized Rodney Harrison's voice and heard it on defendant Lopez' Phonemate say that he “had found out who was the one that snitched ․” and “they were going to snuff him.”

The testimony was admitted on the theory that it came within the coconspirator exception to the hearsay rule.  (Evid.Code, § 1223.1)  It is the defense contention that there was no evidence that a conspiracy existed between Lopez and Harrison at the time Harrison made the statement.

A review of the relevant chronology will be helpful in analyzing the issue.

August 3, 1979 Victim Craig Brock employed at the Sunnyside Drive-In Theater.

August 22, 1980 Defendant Lopez employed at the Sunnyside Drive-In Theater.   There was friction between Lopez and Brock.   Lopez complained to a fellow employee that Brock had “snitched” on him and got him in trouble.   Lopez stated to another employee that he did not like Brock.

April 16, 1981 Rodney Harrison employed at same theater.   Lopez and Harrison became friends and socialized on and off the job.

May 22, 1981 Lopez terminated.   He attributed his termination to Brock.   Lopez and Harrison continue to associate with each other.

June 15, 1981 The Phonemate message in question.

A few days before July 14, 1981  Lopez said that they should take potshots at Brock.   Harrison responded that it would be crazy to do that because somebody would hear the shots.

July 14, 1981 Lopez and Harrison set fire to Brock's car.   They rode to the crime scene in Harrison's car.   Lopez stated that the motive for the arson was revenge against Brock because Brock had caused Lopez to be fired.

Sometime after July 14, 1981 Lopez said they should take potshots at Brock.   Harrison made no response.

July 21, 1981 and once before Lopez' M–1 carbine seen in Harrison's car.

July 22, 1981 Brock killed.   The evidence supports that there were at least two assailants.

 Evidence Code section 1223, subdivision (a) requires that the declarant (Harrison) be participating in a conspiracy to commit a crime at the time of the statement.  (People v. Leach (1975) 15 Cal.3d 419, 430, fn. 10, 124 Cal.Rptr. 752, 541 P.2d 296.)

As of July 14, 1981, when Harrison and Lopez incinerated Brock's car, the two were engaged in a conspiracy to commit a crime.   Were they so engaged 29 days earlier when Harrison spoke the words into his telephone?

Several cases have discussed the question of when a conspiracy is deemed to have ended (People v. Leach, supra, 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296;  People v. Saling (1972) 7 Cal.3d 844, 103 Cal.Rptr. 698, 500 P.2d 610), but we have found no authority as to when it commences.

 It is not necessary to establish the foundational requirement of the existence of a conspiracy by a preponderance of the evidence;  only prima facie evidence of the fact is required.  (People v. Steccone (1950) 36 Cal.2d 234, 238, 223 P.2d 17.)

“As direct evidence that the actors agreed to commit a particular offense is rarely available, the existence and nature of that agreement is commonly inferred from circumstantial evidence showing concerted conduct on the part of the defendant and other participants in furtherance of the alleged conspiratorial goal.”  (People v. Alexander (1983) 140 Cal.App.3d 647, 661, 189 Cal.Rptr. 906.)

The existence of the agreement of conspiracy may be shown by circumstantial evidence;  the agreement may be inferred from the conduct of mutually carrying out a crime.  (People v. Lipinski (1976) 65 Cal.App.3d 566, 575–576, 135 Cal.Rptr. 451.)   The existence of a conspiracy may be inferred from the conduct, relationship, interests and activities of the alleged conspirators.  (People v. Cooks (1983) 141 Cal.App.3d 224, 311, 190 Cal.Rptr. 211.)

 Lopez was shown to have harbored animosity toward Brock from the time they worked together and continuing after Lopez was fired, an act for which he blamed Brock.   Harrison and Lopez were social companions during and after Lopez' employment at the drive-in, and together engaged in an act of arson against Brock expressly in retaliation for Brock's supposed “snitching” against Lopez which the latter believed resulted in his firing.   Lopez and Harrison discussed the shooting of Brock on at least two occasions, and Lopez' rifle was seen twice in Harrison's car.   Brock was killed by rifle shots in the presence of two others.   In light of this evidence, it is a permissible inference that when Harrison phoned Lopez on June 15, 1981, prior to the arson and the discussions of shooting Brock but after Lopez' discharge from employment, and said that they had identified the one who had “snitched” and intended to kill him, the conspiracy which ultimately resulted in Brock's death had already been formed.   The evidence recited above surpasses the prima facie level of proof needed to permit introduction of Harrison's taped phone message.

C. INTENT TO KILL

In his brief Lopez argues that the jury in his trial did not find that he personally used a firearm during the murder but that the jury in Harrison's trial did find that Harrison was armed during the murder.   From these verdicts Lopez claims there was insufficient evidence that he had harbored an intent to kill Brock.

 The evidence presented at Harrison's trial or the verdicts reached therein are irrelevant to a challenge to the sufficiency of the evidence in Lopez' trial.   The standard for this court on review is whether there was credible evidence produced at Lopez' trial which could have persuaded a rational jury to have found him guilty beyond a reasonable doubt of the crimes charged.  (People v. Green (1980) 27 Cal.3d 1, 55, 164 Cal.Rptr. 1, 609 P.2d 468.)

The evidence of intent to kill was circumstantial and essentially the same evidence that pointed to Lopez as the killer also pointed to Harrison (although at neither trial was there any evidence of who the trigger man was, Harrison or Lopez):  Lopez did not like Brock and held Brock responsible for Lopez' firing, Lopez had stated twice he wanted to take shots at Brock, Lopez and Harrison burned Brock's car.

 The jury in the present case could have found Lopez guilty on either of two alternative factual theories:  (1) that he personally shot the victim, or (2) that he was an aider or abettor of Harrison, assuming the latter actually shot the victim.   Since the jury found that Lopez did not personally use a firearm, they must have concluded that he was guilty as an aider and abettor.   In order to uphold such a verdict, there must be substantial evidence that Lopez aided and abetted Harrison with knowledge of the latter's wrongful purpose, or by sharing his evil intent.  (People v. McDaniels (1980) 107 Cal.App.3d 898, 903–904, 166 Cal.Rptr. 12.)  “ ‘Among the factors which may be considered in making the determination of aiding and abetting are:  presence at the scene of the crime, companionship, and conduct before and after the offense․’  [Citation.]”  (Id., at p. 904, 166 Cal.Rptr. 12.)

 In determining whether sufficient evidence exists to support a conviction based upon aiding and abetting, all conflicts in the evidence must be resolved in favor of the judgment and all reasonable inferences drawn in its favor.  (People v. Kelso (1976) 64 Cal.App.3d 538, 542, 134 Cal.Rptr. 364.)   In addition, “each member of a conspiracy is liable for all acts of his coconspirators, intended, unintended, or even actually forbidden, provided only that such acts be in furtherance of the common purpose of the conspiracy.  [Citations.]”  (People v. Manson (1976) 61 Cal.App.3d 102, 209–210, 132 Cal.Rptr. 265.)   The evidence establishing the conspiracy between Lopez and Harrison has been detailed in part II, A, above.   The jury was amply justifed in concluding that as early as June 15, 1981, Lopez and Harrison had agreed to “snuff” the victim in retaliation for the latter's supposed “snitching”;  having so concluded, a verdict of guilty as an aider and abettor would follow, even if Harrison had subsequently shot the victim outside of Lopez' presence.   Of course, the evidence strongly supported the prosecution theory that both Lopez and Harrison had been present when the victim was stabbed and shot, adding to the weight of evidence of Lopez' aiding and abetting.   Since substantial evidence supported the jury's verdict, no error appears.

D. ACCOMPLICE TESTIMONY

Penal Code section 1111 prohibits the conviction of an accused based solely on the testimony of an accomplice.   Lopez argues that his conviction of arson was based solely on the uncorroborated testimony of such an accomplice, Kevin Butterfield.   We disagree.

 Lopez asserts that Butterfield was an accomplice as a matter of law because when the trio set out to burn Brock's car Butterfield knew they were going to commit an arson and this rendered him an accomplice.   Such is not the law.   Mere knowledge that the crime is going to be committed is not sufficient.  “To be an accomplice, the person must have aided, promoted, encouraged, or instigated by act or advice the commission of [the] offense with knowledge of the unlawful purpose ․”  (CALJIC No. 3.10 (4th ed. 1979).)

 Here there was conflicting evidence of whether Butterfield in any way aided or abetted in the arson.   He had told friends and people in juvenile hall that he had helped in burning the car, and in a pretrial statement he said he had driven the getaway car from the scene.   Butterfield recanted all of these statements at trial however, explaining that he had made them only to enhance his criminal reputation.

Since the testimony on this issue of aiding and abetting was conflicting, the resolution of the conflict was a matter for the jury.  (People v. Tewksbury (1976) 15 Cal.3d 953, 960, 127 Cal.Rptr. 135, 544 P.2d 1335.)   It was exclusively the province of the jury to determine the credibility of the witnesses and the truth of the facts upon which a determination depends.  (People v. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267.)

The jury was properly instructed on the law of accomplices in the form of CALJIC Nos. 3.10, 3.11, 3.12, 3.14, 3.18 and 3.19.   The jury was thus instructed as to the definition of an accomplice and that a defendant cannot be found guilty upon an accomplice's testimony unless corroborated by other evidence connecting defendant with the crime.

The jury apparently made a factual determination that Butterfield was not an accomplice.   There was sufficient testimony, although admittedly conflicting, to support this determination.

There was no error.

E. CONCLUSION

The judgment as to Lopez is affirmed.

III. HARRISON

A. FACTS

Lopez, defendant Rodney Harrison and the victim, Craig Brock, were all employed at the Sunnyside Drive-In Theater in Fresno.

Lopez was fired May 22, 1981.   Lopez attributed this to Brock and hated him because he was a “snitch.”

Lopez and Harrison set fire to Brock's car on July 14, 1981.  (We need not go into the details, as Harrison concedes that the circumstantial evidence against him on this issue was very strong.)   Lopez made the statement in the presence of Harrison that the arson was committed because “somebody got him fired from his job.”

There were two conversations, one before the burning of the car and one after, in which Lopez suggested to Harrison that “We should go and take pot-shots at him.”   To the first suggestion, Harrison responded that it would not work out because somebody would hear the gunshot;  to the second, Harrison said nothing.

Sometime around the time of the arson, Lopez' rifle was seen in the trunk of Harrison's car.   An ammunition clip for the gun was seen three or four days thereafter in the front seat of Harrison's car.

In the early-morning hours of July 22, 1981, Brock's dead body was found in a lot adjacent to the drive-in.   He had been stabbed twice in the back and shot four times, twice in the back and twice in the back of the head.

A Mr. Molano, who rented a room in the same house as Lopez, was familiar with the sound of Harrison's voice.   He heard Harrison's recorded voice on a telephone answering device say he “had found out who was the one that snitched ․” and “they were going to snuff him.”

Ballistics analysis revealed that some spent cartridges found near Brock's body had identical markings to cartridges which Lopez' landlord had removed from Lopez' rifle.

A projectionist at the theater, Robert Decker, testified that about two weeks prior to the murder he had had a conversation with Harrison in which he told Harrison that Brock was sabotaging Harrison's efforts at work.   One of Harrison's duties was to replace the car speakers on their stands at the end of the night.   After Decker saw Harrison perform this task one night the manager complained the next morning to Decker that all of Harrison's speakers had been on the ground that morning.   As a result the manager cut back on Harrison's work hours which upset Harrison.

When Decker informed Harrison that Brock probably had been the one who put the speakers back on the ground, “his response was that somebody ought to kill that son-of-a-bitch.”   Decker replied that perhaps beating up Brock would be a sufficient response.   Harrison's response was, “You're right.   We shouldn't kill him but, you know, if we went out there and fought, that he'd just turn me in to the police and file charges.”

Harrison testified in his own defense and denied any involvement in either the murder or the arson and he denied leaving the snitch message on the Phonemate.   He did admit to a modified version of the conversation with Decker.   His alibi was that he had been home with his mother during the crimes.   His mother testified that he had been at home in her house on the nights in question.   Harrison's sister also testified that at about the time of the murder she had telephoned her mother's house and Harrison had answered the phone.

B. MOTION FOR A NEW TRIAL

Harrison's primary contention on appeal is that the court erred in denying his motion for a new trial based on newly discovered evidence.

After Harrison had been convicted Lopez came forward with three declarations that he (Lopez) was solely responsible for the killing and that Harrison had nothing to do with it.   Lopez claimed that he had killed Brock in self-defense.   A hearing was held on the motion and Lopez testified about his role in the killing.   His story was, essentially, that he had driven alone to the theater that night with his rifle, intending to take shots at the screen.   While he was on the grounds Brock confronted him, saw the rifle, took it away from Lopez and struck him with it.   The two men fought and Lopez stabbed Brock to prevent Brock from strangling him.   The men then fought over the rifle with Lopez eventually seizing it and shooting Brock in a panic.

Harrison argues it was improper for the court to have considered anything besides Lopez' declarations in ruling on the motion.   Harrison relies on People v. Pic'l (1981) 114 Cal.App.3d 824, 877, 171 Cal.Rptr. 106.   Pic'l moved for a new trial on the ground of newly discovered evidence.   He submitted a declaration under penalty of perjury.   The trial court denied the motion.   On appeal, the defendant contended that the trial court erred in not holding, sua sponte, an evidentiary hearing.   Relying on Linhart v. Nelson (1976) 18 Cal.3d 641, 134 Cal.Rptr. 813, 557 P.2d 104, which in turn interpreted Code of Civil Procedure section 658, the Pic'l panel stated 114 Cal.App.3d at pages 878–879, 171 Cal.Rptr. 106:

“Accordingly, we hold that a motion for a new trial in a criminal case, made upon the ground of newly discovered evidence, must be decided solely upon affidavits because of the mandatory language of Penal Code section 1181, subdivision 8, and that the trial court is prohibited from conducting an evidentiary hearing at which witnesses would be permitted to testify.”

The defendant urges us to follow, and the Attorney General urges to reject, this dicta.   We turn to an analysis of Linhart.

In Linhart, a civil defendant's motion for new trial was based upon alleged juror misconduct.  (Code Civ.Proc., § 657, subd. 2.)  Section 658 of the same code provides that on such motions (and on motions for new trial on the basis of newly discovered evidence) “it must be made upon affidavits ․”   The plaintiff filed affidavits in opposition to the motion.   At the hearing the defendants attempted to call three jurors to testify.   The trial court refused to admit testimony from the jurors and denied the motion for new trial.   Our high court noted that the motion for new trial is statutory and the procedural steps for making and determining such a motion are mandatory and must be strictly followed and the motion must be presented solely by affidavit.   Justification was found in the fact that if a disappointed litigant could call witnesses, the party or parties opposing the motion would be unable to discover the proposed testimony prior to the hearing because of the short time limitations on new trial proceedings.  (Code Civ.Proc., §§ 659, 660.)   The opposition would be compelled to subpoena witnesses to guard against surprise.   This would constitute a real burden.   It would also have a chilling effect on persons called for jury duty if they knew that they would be on trial during supplemental proceedings.

 As noted, Code of Civil Procedure section 658 provides that when a motion for new trial is made on the ground of newly discovered evidence, “it must be made upon affidavits.”   Contrast this with Penal Code section 1181, subdivision (8) which provides, in part:

“When a motion for new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given ․”

The two statutes are dissimilar.   The statute governing new trial procedures in civil trials provides that the motion must be made upon affidavits.   The Penal Code section governing new trials provides that “the defendant must produce ․ the affidavits.”  (Emphasis added.)  Code of Civil Procedure section 658 provides how the motions are to be made—that is, prosecuted.  Penal Code section 1181, subdivision 8 provides for the production of the affidavits, but does not purport to state how the motion shall be prosecuted.   The Pic'l court did not observe this difference, but instead opined that the language in both was very similar.   It noted at page 878, 171 Cal.Rptr. 106:

“The language of Penal Code section 1181, subdivision 8, is also mandatory in nature and very similar to the language of Code of Civil Procedure section 658 in providing that, when a motion for a new trial is made upon the ground of newly discovered evidence, ‘the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, ․’  (Italics added.)”  (People v. Pic'l, supra, 114 Cal.App.3d at p. 878, 171 Cal.Rptr. 106.)

With due respect, we note that although the production of the affidavits is mandated by the Penal Code section, the procedure for determining the motion is not.

Pic'l did not attempt to distinguish several cases which conflict with its dicta.

Linhart was distinguished by the California Supreme Court in People v. Pierce (1979) 24 Cal.3d 199, 155 Cal.Rptr. 657, 595 P.2d 91.   In that case, the juror foreman spoke about facts in a pending criminal case with his friend, a police officer who was the first on the scene of the crime.   Commendably, the police department itself brought this to the court's attention.   Rather than holding a testimonial hearing, the court relied exclusively on the investigatory reports prepared by the police and district attorney.   The trial court's denial of a motion for new trial was reversed.   In footnote 3, page 206, 155 Cal.Rptr. 657, 595 P.2d 91, the court stated in part:

“we strongly disapprove of the substitution of unsworn police reports and summaries for affidavits or testimony of the percipient witnesses.   A hearing in open court would have been particularly appropriate to ascertain the relevant facts in this matter, because both Seymour and Case were initially evasive about the scope and content of their conversation.  (But cf. Linhart v. Nelson (1976) 18 Cal.3d 641 [134 Cal.Rptr. 813, 557 P.2d 104] ․ [stating rule in civil cases].)”

In People v. Merrill (1951) 104 Cal.App.2d 257, 268, 231 P.2d 573, the appellate panel countered the contention that alleged newly discovered witnesses refused to give the defense attorneys affidavits by indicating that the reluctant witnesses could have been subpenaed to the hearing of the motion for new trial.

People v. Hill (1969) 70 Cal.2d 678, 698–699, 76 Cal.Rptr. 225, 452 P.2d 329, assumed that it was proper to have witnesses at a motion for new trial on the ground of newly discovered evidence.  (There is no indication of an objection to the procedure.)

In People v. Hairgrove (1971) 18 Cal.App.3d 606, 96 Cal.Rptr. 142, the Court of Appeal held that the trial court erred in not calling the affiant to testify to what he had sworn in his affidavit:  “the trial court should have taken affirmative action to call Spasbo [whose affidavit confessing guilt and exonerating the defendant, as here, was the basis of the motion for new trial] as a witness and examine him under oath.”  (Id., at pp. 609–610, 96 Cal.Rptr. 142.)   The cause was remanded to the trial court with directions to rehear the motion for a new trial.  (Id., at p. 611, 96 Cal.Rptr. 142.)

In People v. Hernandez (1971) 19 Cal.App.3d 411, 96 Cal.Rptr. 854, the Court of Appeal, Third Appellate District, upheld the trial court's denial of the motion for new trial, after an evidentiary hearing had been held on the motion.  (Id., at p. 416, 96 Cal.Rptr. 854.)

Finally, in People v. Trujillo (1977) 67 Cal.App.3d 547, 136 Cal.Rptr. 672, this court held, a year after Linhart v. Nelson, supra, 18 Cal.3d 641, 134 Cal.Rptr. 813, 557 P.2d 104, upon which the Pic'l case relies, that “a new trial motion on the basis of newly discovered evidence need only be supported by declarations or affidavits and it is not necessary to produce the witness at the hearing․   The decision not to produce the witness is a matter of trial tactics.  [Citation.]”  (Trujillo, supra, 67 Cal.App.3d at p. 557, 136 Cal.Rptr. 672.)

When a motion for new trial is made on the basis that a codefendant, who initially denied complicity in the crime, has been nevertheless found guilty and now seeks to exonerate his alleged coparticipant, his credibility is very much in issue.   The best way to evaluate his credibility is to have him on the stand and subject to cross-examination.   The issue is rather narrow:  Can this witness be believed?   Where the entire issue is the credibility of one who contends that he, not the defendant, committed the crime, in most if not in all cases, it would be best to hear such a witness testify.   Such live testimony can be evaluated more accurately than by reading his affidavit.

There is not a danger of compelling the prosecution to subpena other witnesses, which was a factor considered in Linhart.

 Problems of discovery in the limited amount of time available for ruling on a new trial motion (Pen.Code, § 1182), also discussed in Linhart, do not present a problem in criminal cases.   Only defendants may make motions for new trial (Pen.Code, § 1181) and prosecutorial discovery is precluded.  (People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534.)

If the statement in Pic'l is good law, it would also preclude a defendant seeking a new trial from producing live testimony.   Yet a defendant might conclude that it was mandatory to do so in order to persuade the trial court that the witness is credible.

 We are persuaded that the Pic'l dicta does not withstand analysis and does not correctly state the law.   We hold that upon a motion for a new trial on the ground of newly discovered evidence in a criminal trial both parties are entitled to an evidentiary hearing in which they may call witnesses.

People v. Scott (1982) 129 Cal.App.3d 301, 180 Cal.Rptr. 891, a case decided after Pic'l, is consistent with our analysis.   It holds that a criminal defendant may not subpena trial jurors to testify as to occurrences in the jury room.   The basis of the holding is the chilling effect it would have on jurors and their work.   It distinguished People v. Merrill, supra, 104 Cal.App.2d 257, 231 P.2d 573 on the ground that “[t]he motion for new trial in Merrill was based on newly discovered evidence, not juror misconduct, and the witnesses in question were not jurors.”  (Scott, supra, 129 Cal.App.3d at p. 309, fn. 3, 180 Cal.Rptr. 891.)

 The standard utilized in granting a new trial motion has been summarized:

“The grant or denial of a motion for a new trial on the ground of newly discovered evidence is a matter which lies within the sound discretion of the trial court․   In ruling on the motion the trial court should consider these relevant factors:  (1) that the evidence, and not merely its materiality, is newly discovered;  (2) that the evidence is not merely cumulative;  (3) that it would render a different result probable on a retrial of the cause;  (4) that the party could not with reasonable diligence have discovered and produced it at the trial;  and (5) that these facts have been shown by the best evidence of which the case admits.  [Citation.]”  (People v. Hairgrove, supra, 18 Cal.App.3d at p. 610, 96 Cal.Rptr. 142.)

When considering these five factors, the trial court may weigh the credibility of the newly discovered evidence in determining whether its introduction would make reasonably probable a different result on retrial.  (People v. Cole (1979) 94 Cal.App.3d 854, 859–860, 155 Cal.Rptr. 892.)

 In the present case, the trial court engaged in precisely this type of decisionmaking process.   It ruled, after hearing the testimony of Lopez, that the evidence was newly discovered, that it was not cumulative, and that Harrison could not with reasonable diligence have discovered and produced it at his trial.   The trial court further found Lopez to be a “prince of deceit,” rejected his testimony as “completely untrustworthy, completely and totally unworthy of belief,” and ruled that there was “no probability that a different result would be likely to occur” on a retrial of the cause.

The trial court did not abuse its discretion when it denied the motion for new trial.

C. HABEAS CORPUS

In view of our holding in section B of part II, there is no need to grant the writ of habeas corpus (which was consolidated with Harrison's appeal).   It is denied.

D. PROSECUTORIAL MISCONDUCT

Harrison's final claim is that there were several instances of prosecutorial misconduct severe enough to warrant reversal.   An examination of the record reveals that, although there was some misconduct, none of it implicated the defendant's right to a fair trial and reversal is not required.

E. CONCLUSION

As to Harrison, the judgment is affirmed and the application for writ of habeas corpus is denied.

FOOTNOTES

FN1. Evidence Code section 1223 allows the admission of a hearsay statement if:“(a) The statement was made by the declarant while participating in a conspiracy to commit a crime ․ and in furtherance of the objective of that conspiracy;“(b) The statement was made prior to or during the time that the party was participating in that conspiracy ․”.  FN1. Evidence Code section 1223 allows the admission of a hearsay statement if:“(a) The statement was made by the declarant while participating in a conspiracy to commit a crime ․ and in furtherance of the objective of that conspiracy;“(b) The statement was made prior to or during the time that the party was participating in that conspiracy ․”

ANDREEN, Associate Justice.

WOOLPERT and HAMLIN, JJ., concur.