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Court of Appeal:
Judge Abused Discretion in Failing to Hold Evidentiary Hearing on New-Trial Motion
Opinion Says That Where Purported New Evidence Was Declaration AverringOnly Witnesses Were Told to Lie, It Was Error Not to Have Declarant Testify
By Kimber Cooley, Staff Writer
Div. Three of the First District Court of Appeal has held that a defendant charged with a lewd act upon a child was entitled to an evidentiary hearing on a motion for a new trial, filed after he was found guilty by jury but before sentencing, where new evidence—a declaration by his ex-wife averring that she and her sister convinced the minor victim to lie—may have rendered likely a different result at trial if found credible.
Presiding Justice Alison M. Tucher authored the opinion which vacated the judgment of conviction and order denying the new trial motion by Alameda Superior Court Judge Delia Trevino. Justices Carin T. Fujisaki and Victor Rodriguez joined in the opinion.
On Dec. 8, 2022, a jury found Rafael Borgesdosreis guilty of committing a lewd act upon a child under the age of 14 in violation of Penal Code §288(a) after his two nieces testified against him.
Jane Doe, aged 15 at the time of the 2022 trial, testified that in September 2018 Borgesdosreis had shown her a pornographic video, asked her if she “ever wanted to try that on top of the clothes only,” and tapped her body below her stomach. Her 19-year-old sister testified that her sister reported the incident to her.
No other witnesses were called.
Trevino earlier granted the prosecution’s motions in limine to exclude testimony by other family members who would allegedly have testified that Doe’s mother, Janeth Castillo, had asked them to lie about Borgesdosreis in order to falsely inculpate him. Despite the exclusion of these witnesses, the defendant argued in closing that the prosecution’s case depended solely on the credibility of the two witnesses.
On Jan. 4. 2023, Borgesdosreis’ ex-wife, Elizabeth C. Borgres, sent defense counsel an unsolicited email disclosing the plan with Castillo to “train” Doe to lie.
New Trial Motion
Trevino considered the motion for a new trial, but made an initial ruling not to conduct an evidentiary hearing saying that she assumed the ex-wife would testify consistently with “what she put in that declaration,” explaining:
“So I am confident that I have the information I need to make a ruling here.”
She denied the motion, reasoning that the declaration does not constitute new evidence as the defendant had already suggested that the two witnesses were fabricating their story and that, even if the newly discovered information were presented to a jury, a different outcome was not probable.
Trevino also found that the evidence could have been discovered sooner, given the declarant’s relationship to the defendant. Borgesdosreis was sentenced to six years in prison.
Abuse of Discretion
Tucher noted that a trial court may grant a new-trial motion when new evidence is discovered that is material to the defense case and which could not have been discovered and produced at trial through reasonable diligence. The central question for a judge hearing a motion, she said, is whether or not the new evidence would probably result in a different verdict upon retrial.
Acknowledging that the analysis presents “a question which normally can best be answered by the trial judge, who has been a witness to the presentation of all the evidence at trial,” she said that a trial judge’s decision may only be disturbed for an abuse of discretion. Tucher noted that such “abuse can occur where affidavits produced by the moving party constitute material evidence that the defendant may have been falsely convicted.”
She concluded that an abuse of discretion did occur and said the “declaration contradicts the strongest evidence against defendant, the testimony of Jane Doe, as well as the ostensibly corroborating testimony of her older sister.”
The jurist noted that although a defendant does not have a right to an evidentiary hearing, the court has the ability to order one, and wrote:
“To its credit, the trial court found 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 court acknowledged these as relevant factors….Yet it did not conduct an evidentiary hearing, taking the view that it did not need to consider [the declarant’s] actual testimony to reach a fair disposition of the motion, instead ‘assum[ing]’ any testimony…would be consistent with her declaration.”
She continued:
“In another case, where the proffered testimony is less damaging to the prosecution’s trial evidence, such an approach might be proper. But here, testimony consistent with Elizabeth’s declaration, if at all credible, would have required the trial court to grant defendant a new trial because it would have rendered probable a different result at trial.”
In this case, an evidentiary hearing was required in order to assess the credibility of the declarant. The justice said:
“We will not attempt to assess Elizabeth’s credibility based on her sworn declaration alone, and for that reason do not decide whether defendant is actually entitled to a new trial. We do, however, conclude that the trial court clearly abused its discretion in denying defendant’s new trial motion without first holding an evidentiary hearing that would enable it more clearly to assess the new evidence.”
The case is People v. Rafael B.D.R., 2024 S.O.S. 1318.
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