Filed 6/24/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

EDDIE ROY CARTER,

 Defendant and Appellant.

2d Crim. No. B251727

(Super. Ct. No. 2012006121)

(Ventura County)

When faced with making a difficult ruling or decision, some trial court 

judges, like anyone else, voice aloud the conflicting arguments in favor of one choice 

over the other. A judge's remarks may suggest one result, yet the judge arrives at the 

opposite result. In such circumstances, the appellate court does not use the judge's 

remarks to impeach the ruling. (People v. Borchers (1958) 50 Cal.2d 321, 329-330.)

But when a judge's remarks preceding a ruling reflect a misapprehension of 

the law upon which that ruling is based, the appellate court must consider the judge's 

remarks in its review. That is what we do here.

Eddie Roy Carter appeals a judgment following conviction of second 

degree commercial burglary, with a finding of a prior serious felony strike conviction. 

(Pen. Code, §§ 459, 667, subd. (b)-(i), 1170.12, subds. (a)-(d).)1 We vacate the trial 

court's order denying a new trial, and order the court to grant a new trial.

 

1 All further statutory references are to the Penal Code unless otherwise stated.
2

FACTS AND PROCEDURAL HISTORY

In the morning of May 20, 2010, Christopher Cruz, manager of the Wells 

Fargo Bank located on North Moorpark Road in Thousand Oaks, arrived at the bank and 

discovered that the door locks had been removed and replaced. Metallic shavings and 

debris lay on the ground nearby. Cruz telephoned the bank security officer and the 

Ventura County Sheriff's Office. Upon entering the bank, Cruz saw that the automatic 

teller machine was vandalized and a "big chunk of it . . . [was] cut out." Wires in the 

ceiling also had been cut and disconnected.

During 2010, Norton Construction Company had performed renovations at 

branch banks that Wells Fargo Bank acquired from Wachovia Bank. In the evening of

May 20, 2010, "Chris" had telephoned the bank security officer requesting deactivation 

of the alarm system in the North Moorpark Road branch bank in order to perform 

construction. 

Charles Duncan, security officer for Wells Fargo Bank in Ventura County, 

investigated the break-in and recovered surveillance video recordings from May 19 and 

20, 2010. The recordings revealed a blue Nissan pickup truck parked in front of the 

bank, and a man wearing a curly gray wig, black sunglasses, a bulky jacket, and jeans, 

leave the truck, tamper with the door locks, and enter the bank. The surveillance camera 

images resembled Carter. A vehicle registration check of the truck disclosed that it was 

registered to Carter's father, Robert Carter.

When the bank locksmith later opened the damaged automated teller 

machine, he found a screwdriver inside. A forensic scientist compared the DNA found 

on the screwdriver handle with a DNA sample obtained from Carter. The two samples of 

DNA "match[ed] exactly." The odds that the DNA found on the screwdriver is that of

another Caucasian person are one in 1.3 quintillion.

Robert Carter testified that the Nissan truck belonged to him, but that his 

son used it in his flooring construction business. He stated that his son employed 8 to 10 

employees who had access to the truck and the tools stored therein.
3

Tracey Carter, now married to defendant, testified that she drove him to her 

Newport Coast home the evening of May 19 and 20, 2010, where he spent the night. On 

the evening of May 20, 2010, they celebrated Tracey's 40th birthday in the company of

their friends. 

The jury convicted Carter of second degree commercial burglary. (§ 459.) 

In a separate proceeding, the trial court found that he suffered a prior serious felony strike 

conviction and served a prior prison term. (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d), 

667.5, subd. (b).) Upon the prosecutor's motion, the court struck a second prior prison 

term allegation. 

On August 30, 2013, the trial court held a sentencing hearing. During the 

proceedings, the trial judge stated that he would have acquitted Carter had he received a 

court trial because, "I just don't think the person who [committed the crime] is Mr. 

Carter." The judge further explained that he found the alibi evidence credible and that "a 

whole raft of other people . . . had access to [Carter's] truck, [and] his tools [and] access 

to the information [regarding the bank's security alarm]." The judge stated that his 

misgivings presented a sentencing dilemma because "I'm not sure the defendant is the 

right man," and "what's the correct sentence given my misgivings about whether you 

have the right man?" The judge then invited Carter to research whether the court could

order a judgment notwithstanding the verdict in a criminal prosecution, commenting that 

he had "qualms . . . whether I ought to be imposing any sentence at all." The judge then 

continued sentencing until September 9, 2013.

New Trial Motion

Prior to the continued sentencing hearing, Carter filed a motion for a new 

trial, asserting that the jury verdict rested upon insufficient evidence. (§ 1181, subd. 6

[trial court may grant a new trial "[w]hen the verdict or finding is contrary to law or 

evidence"].) At the continued sentencing hearing held on September 9, 2013, the trial 

court heard argument regarding the new trial motion. Following argument, the trial judge 

denied the motion, stating: "It was a trial by jury, and there was sufficient evidence 

presented if the jurors believed it to convict Mr. Carter of this crime . . . . I would have 
4

weighed the evidence differently . . . , but there was certainly sufficient, in fact more than 

sufficient, evidence for the jurors to reach the decision they did . . . . They just saw the 

case differently than the Court . . . ." The judge then requested argument regarding the 

sentence to impose on a defendant whom he did not believe was guilty due to the credible 

alibi evidence: "I'm sentencing a person where if I had been trying the case . . . I would 

have had a reasonable doubt . . . whether he was guilty, but that's only because I weighed 

the alibi evidence differently than the jurors . . . ." 

Following additional argument, the trial court dismissed the second prior 

prison term allegation "to try to achieve a lowest sentence possible because the Court 

does have some doubt as to whether in fact the defendant is the guilty party in this case." 

The court imposed a 32-month prison term (the 16-month low term, doubled) pursuant to 

section 667, subdivision (e)(1) and stated: "[T]he Court having residual doubt . . .

whether [defendant] in fact committed this crime . . . causes me to impose the mitigated 

term." The court also imposed a $280 restitution fine, a $280 parole revocation 

restitution fine (stayed), a $40 court security assessment, a $40 crime prevention program 

fine, and a $30 criminal conviction assessment, ordered $29,720 restitution to Wells 

Fargo Bank, and awarded Carter one day of presentence custody credit. (§§ 1202.4, 

subd. (b), 1202.45, 1465.8, subd. (a), 1202.5; Gov. Code, § 70373.)

Carter appeals and contends that the trial court erred by: 1) denying his 

motion for a new trial, and 2) permitting the prosecutor to impeach two defense witnesses 

with their prior misdemeanor convictions for theft and burglary.

DISCUSSION

I.

Carter argues that the trial court abused its discretion by denying his new 

trial motion based upon the erroneous belief that it is bound by the jury's credibility 

determination of the alibi witness. (People v. Dickens (2005) 130 Cal.App.4th 1245, 
5

1251-1252 [in determination of new trial motion, trial court is not bound by jury 

determinations of witness credibility or the weight and effect of the evidence].)2

In determining a new trial motion, the trial court accords no evidentiary 

deference to the verdict. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) 

"Instead, it independently examines all the evidence to determine whether it is sufficient 

to prove each required element beyond a reasonable doubt to the judge, who sits, in 

effect, as a '13th juror.'" (Ibid.) Thus, the court considers "the proper weight to be 

accorded to the evidence" and then determines whether "sufficient credible evidence" 

supports the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633 ["It has been stated 

that a defendant is entitled to two decisions on the evidence, one by the jury and the other 

by the court on motion for a new trial"].) If the court is not convinced that the charges 

have been proved beyond a reasonable doubt, it may rule that the jury's verdict is 

"'contrary to [the] . . . evidence'" within the meaning of section 1181, subdivision 6. 

(Porter, at p. 133.) In doing so, the judge acts as a 13th juror who is a "holdout" for 

acquittal. (Ibid.) Thus, the grant of a new trial is "the equivalent of a mistrial caused by 

a hung jury." (Ibid.)

In its independent assessment of the evidence, the trial court is guided by a 

presumption in favor of the correctness of the verdict and the proceedings in its support. 

(People v. Fuiava (2012) 53 Cal.4th 622, 729 [trial court should not disregard the verdict

but instead consider the proper weight to be accorded to the evidence and then decide 

whether the verdict is supported by sufficient credible evidence].) The presumption that 

the verdict is correct, however, does not affect the court's duty to apply its independent 

determination to the probative value of the evidence. (People v. Dickens, supra, 130 

Cal.App.4th 1245, 1252.)

 

2 We reject the Attorney General's argument that Carter has forfeited his argument by not 

objecting to the trial court's decision. Carter properly filed a new trial motion and argued 

the correct legal standard to determine the motion. For appellate purposes, he preserved 

his claim. 
6

The court has broad discretion in ruling on a new trial motion, and the 

court's ruling will not be overturned absent a clear and unmistakable abuse of that 

discretion. (People v. Fuiava, supra, 53 Cal.4th 622, 730.) The court abuses its 

discretion, however, where it misconceives its duty, applies an incorrect legal standard, or 

fails to independently consider the weight of the evidence. (People v. Robarge, supra, 41 

Cal.2d 628, 634 [trial court erroneously deferred to jury's determination of credibility].)

Under the circumstances here, the trial court misunderstood its duty and the 

correct legal standard in ruling on the new trial motion. The trial judge repeatedly stated 

that he found Tracey Carter's alibi evidence credible, other persons had access to the 

truck and the tools within, Carter was not "the right man." He also accorded more weight 

to Tracey Carter's alibi testimony than did the jury, and he held a reasonable doubt 

regarding Carter's guilt. The court also invited Carter to research the applicability of a 

judgment notwithstanding the verdict in a criminal prosecution. By contrast, the judge's 

statements here were much more than the isolated statement made and relied on in People 

v. Borchers, supra, 50 Cal.2d 321, 329-330, in an argument to impeach the court's ruling 

on a new trial motion.

Moreover, the prosecution bears the burden of establishing that the 

defendant was present and committed the crime charged. (CALCRIM No. 3400 

["Alibi"].) The defendant is not required to prove that he was elsewhere at the time of the 

crime. (Ibid.) The trial judge's statements reflect his belief that the prosecution did not 

bear its burden of proving that Carter was present and committed the burglary of Wells 

Fargo Bank.

At oral argument the prosecutor said, "If there's enough evidence for a case 

to survive an attack on appeal, there should be enough evidence to survive a motion for a 

new trial." The standards for the trial court's determination of a new trial motion and 

appellate review of a judgment are quite different. (Porter v. Superior Court, supra, 47 

Cal.4th 125, 132-133.)

Based upon the trial judge's review of the weight of the evidence and 

witness credibility, Carter was entitled to a new trial. (People v. Borchers, supra, 50 
7

Cal.2d 321, 330 ["[U]nhesitant exercise of [granting a new trial] by the trial judge, when 

he is satisfied that the action is indicated by the evidence, not only makes for justice in 

the individual case but tends also to lighten the burden of reviewing courts and to 

expedite the finality of judgments"].) Given the judge's repeated statements that he had a 

reasonable doubt whether Carter committed the crime and that Carter was not "the right 

man" in view of the alibi evidence, it serves no purpose to remand the matter for another 

new trial hearing. 

II.

Carter contends that the trial court erred by permitting the prosecutor to 

impeach two defense witnesses, employees of his construction business, with their 2002 

misdemeanor theft and burglary convictions. He concedes that the crimes of theft and 

burglary involve moral turpitude and are admissible for impeachment purposes. (People 

v. Cudjo (1993) 6 Cal.4th 585, 626 [theft]; People v. Collins (1986) 42 Cal.3d 378, 395 

[burglary].) Carter points out that the two witnesses, Robert Bengochea and Michael 

Starbuck, were 19 or 20 years old at the time they committed the prior offenses, and that 

Starbuck denied suffering the 2002 conviction.

For purposes of retrial, we discuss this contention.

In a hearing outside the jury's presence, the prosecutor inquired regarding 

impeachment of defense witnesses Bengochea and Starbuck with theft and burglary 

convictions they suffered in 2002. Carter objected, and asserted that evidence of the 

convictions was more prejudicial than probative, given that the convictions occurred 11 

years prior. Following argument, the trial court determined that evidence of the 

convictions was more probative than prejudicial, within the meaning of Evidence Code 

352. Subsequently, the prosecutor questioned Bengochea and Starbuck regarding their 

prior convictions.

A witness may be impeached with prior conduct that involves moral 

turpitude, whether or not it resulted in a felony conviction, subject to the trial court's 

exercise of discretion pursuant to Evidence Code section 352. (People v. Clark (2011) 52 

Cal.4th 856, 931.) "Past criminal conduct involving moral turpitude . . . has some logical 
8

bearing on the veracity of a witness in a criminal proceeding . . . ." (People v. Harris

(2005) 37 Cal.4th 310, 337.) 

The trial court has broad discretion in determining the admissibility of 

impeachment evidence. (People v. Clark, supra, 52 Cal.4th 856, 932.) When 

determining whether to admit a prior conviction for impeachment purposes, the court 

should consider, among other factors, whether it reflects on the witness's honesty or 

veracity, whether it is near or remote in time, and in the case of a defendant, whether it is 

for the same or similar conduct as the charged offense, and what effect its admission 

would have upon his decision to testify. (Id. at p. 931.)

The trial court's decision to permit evidence of the 11-year-old convictions 

was not unreasonable and within its discretion. Moreover, the witnesses explained that 

they were young men in 2002 and one witness explained that his brother, not he, suffered 

the conviction. The weight of the impeachment evidence was a matter for the jury in 

light of the witnesses' explanations. 

We vacate the order denying a new trial and order the trial court to grant 

Carter a new trial.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
9

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Mark R. Feeser, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, David F. 

Glassman, Deputy Attorneys General, for Plaintiff and Respondent.