Newly Discovered Evidence & Motion for New Trial

In Alameda County Superior Court, Defendant Rafael B.D.R. was sentenced to a six-year prison term for committing a lewd act upon a child under the age of 14 (Penal Code § 288(a)) and sending, or exhibiting harmful matter to a minor (Penal Code § 288.2(a)(2)).

He was convicted by a jury of committing these crimes in September 2018 against Jane Doe when she was 11 years old.  Jane was defendant’s niece.  Her mother was the sister of defendant’s ex-wife, Elizabeth.  Jane Doe testified at trial, as did her older sister.

Before trial, the judge granted two motions in limine brought by the People to exclude testimony of two defense witnesses: defendant’s twelve-year old son, John Doe, and Victoria, the maternal grandmother of both John Doe and Jane Doe.  

The defense had proposed to elicit testimony from John Doe and Victoria that Jane’s mother, Janeth, had asked them to lie about defendant in order to “falsely implicate” him.  Janeth had asked John to tell the police that defendant had touched him in “inappropriate places,” even though that had not happened.  Defense counsel proposed to show that this conversation occurred before Janeth reported to the police that defendant had abused Jane.  Janeth also asked Victoria to lie to the police by stating Jane Doe’s behavior toward defendant changed after September, 2018 (when the alleged abuse took place).

The judge excluded John Doe’s testimony under Evidence Code § 352, finding “no clear nexus” between “the complaining witness” and conversations Janeth had with John Doe.  Moreover, Janeth was not expected to testify, and allowing testimony about her lack of credibility would be unduly time-consuming and potentially prejudicial to Jane Doe.  For these same reasons, the judge excluded testimony regarding Victoria’s conversations with Janeth.  

On December 8, 2022, the jury found defendant guilty of both charges after deliberating approximately one court day.

Prior to sentencing, defendant filed a motion for new trial based on newly discovered evidence under Penal Code § 1181(8).  According to the motion, after the verdict, defendant’s ex-wife Elizabeth sent defense counsel an unsolicited confession that she and her sister Janeth had devised a plan to falsely accuse defendant of sexual abuse so he would be deported.

The trial court judge denied the motion, finding among other things, that Elizabeth’s declaration did not constitute new evidence and instead was impeachment evidence, invoking the general rule that a new trial should not be granted “where the only value of the newly discovered evidence is as impeaching evidence or to contradict a witness of the opposing party.” People v. Hall (2010) 187 Cal. App. 4th 282, 299.

Defendant appealed this ruling to the First Appellate District Court in San Francisco, which vacated the order denying the motion for new trial and remanded the case to the trial court with directions to rehear the motion for new trial.  

The First Appellate District explained that even the trial court conceded that Elizabeth’s declaration was not cumulative, and that if she testified at a retrial, her testimony would be the best evidence of her version of events.  The appellate court also noted that the trial court did not conduct an evidentiary hearing (which it has discretion not to hold), but it should have when material facts are in dispute.  People v. Hayes (1999) 21 Cal. 4th 1211, 1255.

Here, had Elizabeth been examined about her statement, the parties could have probed her account for strengths and weaknesses, which might have clarified whether the new evidence was sufficiently credible to warrant a new trial.  

The appellate court noted that the central question in determining whether a new trial should be granted on the ground of “newly discovered evidence” is whether the evidence would probably result in a different verdict upon retrial.

The appellate court noted that Elizabeth’s declaration was far more than just further evidence of the defense position that the crime never occurred.  Instead, it was the first time that it was stated that she and Janeth invented a story about defendant molesting Jane Doe for the purpose of having defendant deported.