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Filed 10/12/21 P. v. Hart CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH PHILLIP HART, 

Defendant and Appellant.

 A161239

 

(Mendocino County Super. Ct. No. 

SCUK-CRCR-20-34746-001)

Joseph Phillip Hart appeals from the judgment entered against 

him after he was convicted of assault with a deadly weapon (Pen. Code, 

§ 245, subd. (a)(1)).1 Hart argues that the trial court abused its 

discretion by denying his motion for new trial. We disagree and affirm.

BACKGROUND

A.

In March 2020, J.S. invited Hart to stay with him at a rural 

property outside Laytonville, where J.S. worked as a caretaker. About 

two weeks later, J.S. asked Hart to leave. On direct examination, J.S. 

testified that he asked Hart to leave because Hart had gone through 

other people’s possessions. J.S. said he offered Hart two weeks to find a 

new place to stay, but Hart wanted to leave right away. Because it was 

1 Undesignated statutory references are to the Penal Code.
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the middle of the night and raining, they agreed that J.S. would drive 

Hart to Willits the next morning. 

J.S. testified that Hart was slow to pack his belongings the next 

day. But, when J.S. insisted that Hart needed to leave, Hart agreed. 

In the early afternoon, the two men left in a truck. J.S. drove, smoking 

marijuana from a bong at the same time. 

Near Laytonville, J.S. stopped so that Hart could urinate. 

According to J.S., Hart exited and re-entered the truck through its 

passenger-side door, which functioned normally. After the two had 

been back on the road only five minutes, Hart asked J.S. to stop 

again—for another bathroom break. J.S. found this strange, especially 

since they were now only five to 10 miles from Willits, and refused. 

Hart continued to demand that J.S. pull over. As they 

approached the first Willits exit, Hart called 911 and reported that he 

was being “ ‘kidnapped.’ ” J.S. exited the freeway. When the truck 

arrived at a stop sign, Hart pinned J.S. to the driver’s side door and

stabbed him, with a knife, in the chest, leg, hand, and forehead. 

J.S. testified that he did not have a knife or a gun that day. He 

did not recognize either of the two knives police later found in the 

truck. J.S. also testified that he never pointed a gun at Hart. Although 

he initially testified that there were no guns at the property where the 

two had been living, J.S. later said the owners kept a shotgun there. 

J.S. did not threaten Hart to persuade him to leave. 

B.

The driver of a California Department of Transportation 

(CalTrans) truck pulled over when he saw two men struggling inside 

J.S.’s truck. He observed the passenger on top of the driver, punching 
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him, and the driver calling for help. When the driver freed himself, he 

got into the CalTrans truck and said, “ ‘That guy’s crazy. He stabbed 

me.’ ” 

Hart later paced around the CalTrans truck, banged on its 

window, and screamed. Hart asked the CalTrans driver to call the 

police and an ambulance. He also claimed that he stabbed J.S. because 

J.S. “ ‘had a gun.’ ” Hart appeared “really crazy, and aggressive.” 

Another driver pulled over when he saw J.S. getting out of his 

truck. He said J.S. was bleeding, scared, and calling for help. He also 

saw Hart, who yelled “aggressive[ly]” that “it wasn’t his fault” and that 

“[J.S.] put a gun to his face.” 

C.

Hart first told a responding police officer that he and J.S. got into 

a fight, during which J.S. pulled out a knife. Hart said he stabbed J.S. 

to defend himself. Hart later told the same officer that J.S. pulled a 

.38-caliber pistol on him. 

Hart directed the officer to the bed of the truck, where the officer 

found a knife. The officer found a second knife (in a dual-knife sheath) 

on the truck seat “closer towards the driver.” Officers also found 

marijuana in the truck, as well as a broken bong underneath. No gun 

was found at the scene. Officers did not search the property where 

Hart and J.S. had been living. Officers were able to open the 

passenger-side door, from the interior of the truck, without trouble. 

When Hart was interviewed later that same day, he said that J.S. 

was holding a “.38-caliber snub-nosed pistol” around 11:00 a.m., when 

J.S. told him to leave. Hart did not claim that J.S. pointed the gun at 
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him. Nor did he know if J.S. brought the gun with him on the drive to 

Willits; Hart never saw it again. 

Hart said he was scared because, after the initial stop, J.S. was 

smoking marijuana and driving 70 miles per hour. When Hart asked 

J.S. to stop a second time, J.S. slapped him. Hart responded by 

punching J.S. and pushing him up against the driver’s side door. Hart 

then saw that J.S. was sitting on a knife. Hart grabbed the knife and 

stabbed J.S. three times—in the leg, thigh, and face. Hart told the 

detective that he only wanted to get out of the truck but was unable to 

open the passenger side door. 

D.

Hart testified, in his own defense, that he and J.S. agreed to grow 

marijuana and vegetables on the property where J.S. worked. When 

Hart arrived in March 2020, he bought provisions (including seeds) and 

“paid the mortgage”—by giving J.S. a pound of marijuana to sell. In 

exchange, Hart expected a larger return after the fall harvest. 

Later that same month, Hart confronted J.S. about overwatering 

some seedlings. J.S. became “belligerent” and told Hart, “people 

disappear up [here.]” However, Hart testified that this was not “a big 

argument[]” and that he never screamed at J.S. J.S. simply agreed to 

take better care of the seedlings and Hart laughed off J.S.’s 

disappearance comment. 

The next day, J.S. came into Hart’s room, holding a .38-caliber 

gun at his side, and screamed that Hart needed to leave the property in 

an hour, or else J.S. would kill him. When Hart asked J.S. if he was 

joking, J.S. pointed the gun at Hart. Despite believing that his 

investment entitled him to stay through the summer, Hart took the 
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threat seriously and agreed to leave. While Hart was packing, J.S. 

yelled at him again. Hart never saw the gun again, but he assumed 

J.S. still had it because J.S.’s hand was in his pocket. 

When Hart took a bathroom break during the drive to Willits, he 

discovered that he could not open the passenger-side door from the 

inside. The truck hydroplaned shortly after J.S. resumed driving. Hart 

was scared because J.S. was smoking marijuana and driving 80 miles 

per hour in heavy rain. Hart asked J.S. to stop the truck “at least 30 

times,” but J.S. refused. When the truck hydroplaned a second time, 

Hart called 911. Hart told the dispatcher that J.S. “pulled a gun on 

[him]” earlier in the day, but the call dropped. 

On the freeway off-ramp at the Willits exit, Hart asked to stop 

again. J.S. backhanded him and said, “quit being a bitch.” Hart 

decided he could no longer wait to get out of the truck and punched J.S. 

Hart testified that he tried to open the passenger-side door, but “it did 

not open.” Hart pinned J.S. against the driver’s-side door and held 

J.S.’s right arm, to ensure that “[J.S.] didn’t pull a gun on [him] and 

shoot [him].” 

Next, Hart saw J.S. reach down between his legs, towards a 

double knife pouch. Hart quickly grabbed one of the knives and 

stabbed J.S. twice in the leg. Hart initially testified that J.S. laughed, 

“basically grabbed onto that second knife,” and said that he was “going 

to cut [Hart] up.” At this point, Hart stabbed J.S. in the side and J.S. 

exited the truck. Later, Hart testified that J.S. “did not actually have 

that knife in his hand” but was reaching for it. 

Hart said he initially stabbed J.S. because he was afraid that “if 

[J.S.] got the knife, he was going to stab me.” Hart did not know if J.S. 
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had a gun but, after the two men exited the truck, Hart put the knife 

he used into the bed of the truck. 

Hart approached the driver of the CalTrans truck only to request 

that the driver call 911 and take J.S. to the hospital. He was not 

chasing or threatening J.S. Hart himself called 911, admitted stabbing 

J.S., and told dispatch that earlier in the day J.S. “put[ ] a gun to 

my . . . head.” At trial, Hart conceded that the gun was never held to 

his head. He testified that J.S. pointed the gun towards his face, from 

six feet away. 

Hart stipulated that he had previously been convicted of a 

felony—armed robbery. 

E.

The jury convicted Hart of assault with a deadly weapon. Hart 

admitted a prior strike allegation (§§ 668, 1170.12, subd. (b)(2)). Before 

sentencing, Hart filed a motion for a new trial, contending the evidence 

was insufficient to support the jury’s verdict (§ 1181, subd. 6) and that 

newly discovered evidence undermined the verdict’s reliability (§ 1181, 

subd. 8). The trial court denied Hart’s motion and sentenced him to six 

years in state prison.

DISCUSSION

A.

Hart contends his discovery of new evidence entitled him to a 

new trial. He insists his constitutional due process rights were violated 

because the trial court’s ruling deprived him of the opportunity to 

present a defense. Applying the abuse of discretion standard (People v. 

Howard (2010) 51 Cal.4th 15, 42-43), we conclude the trial court did not 

err. 
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1.

A motion for new trial based on newly discovered evidence must 

be supported by “the affidavits of the witnesses by whom such evidence 

is expected to be given.” (§ 1181, subd. 8.)

In deciding a motion for new trial based on newly discovered 

evidence, the trial court considers whether the evidence is: (1) in fact 

newly discovered; (2) not merely cumulative; (3) such that would render 

a different result probable on retrial; (4) evidence that could not have 

been discovered and produced at trial with reasonable diligence; and (5) 

presented “ ‘ “ ‘by the best evidence of which the case admits.’ ” ’ ” 

(People v. Howard, supra, 51 Cal.4th at p. 43.) 

2.

Hart’s motion for new trial was supported by two victim impact 

statements J.S. purportedly submitted to the trial court before 

sentencing—only one of which is in the record before us. In his motion, 

Hart maintained that J.S. wrote, “ ‘After some days staying with me[, 

at the property,] a disagreement broke out and [Hart] began to 

physically get bigger, louder and more threatening to me.’ ” In the 

statement that appears in the record, J.S. stated, “[W]e had a little 

disagreement [and Hart] got very loud and violent with his body 

movements[.] I politely asked him to find another place to stay . . . . 

[H]e said if I have to leave the property then let’s go now[.] [I]t was 

raining [and] night time[.]” 

Hart argued J.S.’s victim impact statement constituted new 

evidence because it created “a totally different impression” than did 

J.S.’s testimony before the jury. According to Hart, J.S. was suggesting 

for the first time that he asked Hart to leave the property because Hart 
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was angry and threatening. Hart insisted J.S.’s new characterizations 

were material because such evidence increased the credibility of Hart’s 

testimony that J.S. used a gun to force him from the property. 

The trial court heard and denied the motion immediately before 

Hart was sentenced. In doing so, it observed that J.S.’s victim impact 

statement was not a sworn affidavit. The court also concluded that the 

evidence was not material because it did not relate to the key issue at 

trial—what occurred in the truck. Finally, the trial court concluded 

that Hart could not show admission of such collateral impeachment 

evidence would make a different result reasonably probable. 

3.

The trial court did not abuse its discretion. 

Because Hart relied solely on J.S.’s unsworn letter and presented 

no affidavit, we must affirm on this basis alone. (See § 1181, subd. 8; 

People v. House (1969) 268 Cal.App.2d 922, 924.)

Furthermore, the trial court properly denied the motion because 

the newly discovered evidence did not render a different result probable 

on retrial. “[A] motion for a new trial should be granted when the 

newly discovered evidence contradicts the strongest evidence 

introduced against the defendant.” (People v. Martinez (1984) 36 

Cal.3d 816, 823.) Retrial is generally not required when the newly 

discovered evidence merely impeaches the opposing party’s witness, 

whose testimony is otherwise corroborated. (People v. Salazar (2005) 

35 Cal.4th 1031, 1050; People v. Jimenez (2019) 32 Cal.App.5th 409, 

422.) 

We assume the newly discovered evidence contradicts J.S.’s 

testimony (on direct examination) about why he asked Hart to leave the 
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property. However, the key dispute at trial was not about why Hart 

left or what occurred at the property hours before the drive to Willits. 

The key factual issue for the jury was determining what occurred in the 

truck and whether Hart stabbed J.S. in self-defense. 

The victim impact statement does not contradict the strongest 

evidence against Hart—J.S.’s testimony that Hart stabbed him without 

physical provocation and that J.S. never had a knife or a gun. Hart 

testified that he stabbed J.S. in self-defense because he had been 

slapped, he could not exit the truck, and he feared J.S. would stab him. 

The jury rejected Hart’s version of events and found J.S.’s testimony 

more credible. Hart’s guilt was also corroborated by the evidence that 

the truck’s passenger door functioned normally, the independent 

witnesses who observed Hart behaving aggressively, and the numerous 

inconsistencies in Hart’s various explanations. 

The newly discovered evidence—of Hart’s threatening behavior at 

the Property—does not contradict J.S.’s testimony about what occurred 

in the truck or make Hart’s own testimony about the stabbing any more 

credible. Furthermore, J.S. testified on cross-examination that he told 

Hart to leave the property because he did not like Hart’s meddling and 

“drama.” J.S. recounted that Hart had accused him of overwatering 

seedlings on the property. Hart raised his voice, which upset J.S. On 

this record, it is highly unlikely that the newly discovered evidence 

would lead to a different result on retrial. (See People v. Delgado

(1993) 5 Cal.4th 312, 328; People v. Soojian (2010) 190 Cal.App.4th 491, 

521 [defendant must show that “it is probable that at least one juror 

would have voted to find him not guilty had the new evidence been 

presented”].) 
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The trial court did not abuse its discretion. Hart has failed to 

demonstrate a violation of his due process rights. 

B.

Hart also contends that the trial court erred by failing to grant 

his motion for new trial on insufficiency of the evidence grounds. We 

are not persuaded. 

1.

In ruling on a motion for new trial under section 1181, 

subdivision 6, the trial judge independently examines the evidence to 

determine whether it is sufficient to prove each element beyond a 

reasonable doubt to his or her satisfaction. In effect, the trial judge 

acts as a “ ‘13th juror.’ ” (Porter v. Superior Court (2009) 47 Cal.4th 

125, 133.) “The trial court has broad discretion in determining whether 

the evidence has sufficient probative value to sustain the verdict 

[citation], and its order will not be reversed on appeal ‘absent a 

manifest and unmistakable abuse of that discretion.’ ” (People v. 

Dickens (2005) 130 Cal.App.4th 1245, 1252.) 

Our standard of review is the same as that we ordinarily apply to 

assess sufficiency of the evidence on appeal. (People v. Watkins (2012) 

55 Cal.4th 999, 1018-1020 & fn. 11.) When faced with a substantial 

evidence challenge, we “must review the whole record in the light most 

favorable to the judgment below to determine whether it discloses 

substantial evidence - -that is, evidence which is reasonable, credible, 

and of solid value - -such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 

26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 

318-319.) “ ‘ “[W]e must presume the court found every fact and drew 
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every permissible inference necessary to support its judgment, and 

defer to its determination of credibility of the witnesses and the weight 

of the evidence.” ’ ” (Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 

962, 966–967 (Martinez).) “The uncorroborated testimony of a single 

witness is sufficient to sustain a conviction, unless the testimony is 

physically impossible or inherently improbable.” (People v. Scott (1978) 

21 Cal.3d 284, 296.)

2.

Turning the standard of review on its head, Hart focuses on his 

own testimony and contends J.S.’s account “does not make sense.” 

J.S.’s testimony—that Hart suddenly stabbed him and that J.S. was 

unarmed—is not inherently improbable, as Hart suggests. (See People 

v. Ennis (2010) 190 Cal.App.4th 721, 729 [to be rejected as inherently 

improbable, “challenged evidence must be improbable ‘ “on its face” ’ ”].) 

In denying Hart’s motion, the trial court explicitly stated that it found 

J.S.’s account of what occurred in the truck credible. The jury 

apparently came to the same conclusion. It is not our role to reweigh 

the evidence or to reevaluate witness credibility. (Ibid.; Martinez, 

supra, 51 Cal.App.5th at pp. 966–967.)

Substantial evidence supports the jury’s verdict. The trial court 

did not abuse its discretion in denying the motion for new trial. 

DISPOSITION 

The judgment is affirmed. 
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_______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J.

____________________________

SIMONS, J.

A161239