People v. Byrket CA5

Filed 12/22/21 P. v. Byrket CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F079315
Plaintiff and Respondent,
(Super. Ct. No. BF151624A)
v.

DAVID SCOTT BYRKET, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill,
Judge.
Patrick Morgan Ford for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
In 2014, defendant David Scott Byrket was convicted by jury of one felony count
of resisting an executive officer with force or violence, in violation of Penal Code
section 69.1 The trial court suspended imposition of sentence and placed defendant on
probation for three years, with the first 120 days to be served in jail as a condition of
probation.
In defendant’s first appeal, he claimed the trial court erred in admitting evidence
that the internal affairs investigation into Deputy Geherty’s use of force did not result in
any disciplinary consequences.2 Defendant also claimed the trial court’s instruction to
the jury on that issue was erroneous and, cumulatively, the evidentiary and instructional
errors deprived him of a fair trial. Finally, in accordance with Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess), defendant sought to discover statements from five
percipient law enforcement witnesses and he claimed the trial court erred in withholding
those statements.3
On review, this court found the trial court abused its discretion when it denied
defendant’s motion for discovery of the percipient witnesses’ statements, and we
conditionally reversed the judgment and remanded the matter for further proceedings.
However, we rejected defendant’s other claims of error.
Following disclosure of the witnesses’ internal affairs statements on remand,
defendant moved for a new trial. The trial court denied the motion and defendant’s
appeal of that ruling is now before us. Defendant claims the court abused its discretion,
entitling him to reversal of his conviction and remand for a new trial.

1 All further statutory references are to the Penal Code unless otherwise specified.
2 We take judicial notice of our prior nonpublished opinion in People v. Byrket (Oct. 11,
2017, F070942) 2017 Cal.App. Unpub. Lexis 6964 (Byrket I). (Evid. Code, §§ 452, subd. (d),
459.)
3 A different judge presided over the jury trial than ruled on defendant’s Pitchess motions.

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 The People dispute defendant’s entitlement to relief.
We find no error and affirm the judgment.
FACTUAL SUMMARY4
I. Prosecution Case
At the time of the offense, defendant lived in the Kern County town of Onyx with
his wife, one of his adult sons and his daughter.5 On the morning of April 21, 2013,
defendant’s son, David, telephoned 911 and reported his father had “‘lost his mind’” and
was “‘mentally not there.’” David said defendant was “‘running up and down the
streets’” and “‘yelling,’” was “‘not himself,’” and “‘need[ed] a psychiatric evaluation.’”
(Byrket I, supra, 2017 Cal.App. Unpub. Lexis 6964, *3.) David said his father had been
that way for a few days. While deputies with the Kern County Sheriff’s Department were
en route to Onyx, a neighbor also made a 911 call and told the dispatcher defendant is
“‘kind of a big, scary guy but he’s [Welfare and Institutions Code section ]5150.’” The
neighbor said, “‘[T]ry not to hurt him, okay, because he’s a nice guy. He’s just out of it
today.’” (Ibid.)
Kern County Sheriff’s Deputies Geherty, Garza and Brooks responded to
defendant’s residence in separate patrol cars to conduct a welfare check. Upon arrival,
Geherty made contact with David while Garza made contact with defendant. Garza
testified defendant was running in the road in a zigzag pattern and jumped on a fence, and
he was yelling about his daughter being raped and wanting to go to jail. Defendant was
described as alternating between calm and agitation. Defendant voluntarily entered
Garza’s patrol car and was agreeable to going to Mary K. Shell, a mental health crisis
center in Bakersfield.

4 The factual summary is taken from Byrket I.
5 Defendant’s two sons and his wife testified at trial, and all share the same last name. We
refer to defendant’s sons and his wife by first name to avoid confusion. No disrespect is
intended.

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 The 911 call was assigned to Geherty and, therefore, defendant was transferred to
Geherty’s patrol car for voluntary transportation to Mary K. Shell. Approximately
10 minutes into the transport, Geherty noticed defendant was slipping his handcuffs from
the back of his body to the front of his body. Defendant did not comply with orders to
stop and Geherty pulled his patrol car over near the entrance to Red’s Marina at Lake
Isabella. Defendant unbuckled his seatbelt and began kicking the window of the patrol
car. After Geherty threatened to spray him with pepper spray if he did not stop,
defendant represented he would stop, rolled over onto his stomach and placed his hands
behind his head in compliance with Geherty’s order. As Geherty went to open the
passenger door, defendant kicked it open and used his body to prevent Geherty from
closing it again.
Defendant and Geherty ended up struggling on the ground as Geherty attempted to
regain control over defendant and get his hands cuffed behind his back again. Geherty
had already placed two radio calls, the first to report defendant slipped his cuffs and the
second to report defendant was resisting arrest. While Geherty was on the ground
struggling with defendant but before responding officers arrived, citizen Carol Y.
witnessed the struggle and pulled her vehicle over. She approached and offered her
assistance but Geherty waved her off, concerned she would get hurt. She stood nearby
and watched until other officers arrived. She then left the scene, but returned with her
father and provided a statement to an officer.
In response to Geherty’s radio call for assistance, four deputies, including Garza
and Brooks, and two Kern County Parks and Recreation Department officers responded
to the scene.6 Officers succeeded in gaining control over defendant, handcuffing him

6 The six responding officers were Senior Kern County Sheriff’s Department Deputies
Garza and Brooks, Reserve Kern County Sheriff’s Department Deputies Melby and Kirkham,
and Officer Armstrong and Park Ranger Eades with the Kern County Parks and Recreation
Department.

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behind his back again and hobbling his legs. Defendant was then returned to Geherty’s
patrol car and transported to jail.
II. Defense Case
Defendant’s wife, Zina, testified that defendant had no history of mental illness
and was not violent. She said they had been arguing the morning of the incident because
defendant wanted to kick David out of the house. She was upset and left. However, in a
recorded telephone call defendant placed from the jail the day after his arrest, he told
Zina he messed up and did not know why he was there. Zina responded that he needed
mental help and had been crazy for the past few weeks. In a second recorded telephone
call the same day, Zina told defendant he was going insane.
David testified that he had problems with alcohol on and off, and the day before
the incident, he was at a wedding where he drank. He came home early the next morning
and went to bed, but defendant woke him up and wanted him to do yardwork. They
argued and defendant told him to pack his bags. David testified that in an effort to get
defendant picked up and taken away, he called 911 and lied about defendant’s behavior.
He also testified he lied to his neighbor, his mother, and his brother, Jonathan, about
defendant’s behavior; and his neighbor called 911 at his request. David testified he did
not tell his mother and brother the truth about the situation until two or three days later.
The defense also presented evidence that during the second telephone call
defendant made from jail, he told Jonathan he needed to go to the hospital and had
broken bones. After his release from jail, Zina took some photographs of bruises and
marks on defendant’s body. Zina testified the photos were taken at the same time, with
the exception of the photo of his side. Additionally, she was unsure when she took the
photo of his hand. However, during cross-examination, the prosecutor elicited evidence
that of the photos Zina testified were taken at the same time, defendant was not wearing
the same clothing in every shot.

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 Defendant’s primary care physician testified that he saw defendant on April 29,
2013, for rib and chest pain, and subsequent evaluation revealed recently fractured ribs
and a spinal compression. He defined “‘recent’” for purposes of the fractures as
sustained within days or a few weeks of the X-ray and testified that defendant has a
history of severe osteoporosis, which renders sufferers more susceptible to fractures.
(Byrket I, supra, 2017 Cal.App. Unpub. Lexis 6964, *7.) He also testified that he saw
defendant eight days after the arrest and, while bruises start to turn yellow and green
within two or three days of injury, defendant’s bruising appeared fresh.
DISCUSSION
I. Remand in Byrket I
This appeal requires us to determine whether the trial court erred when it
concluded defendant was not entitled to a new trial based on the posttrial disclosure of
the statements Geherty, Garza, Brooks, Melby, and Kirkham provided during the internal
affairs investigation into defendant’s excessive force complaint. As a threshold matter,
we address defendant’s characterization of the disposition in Byrket I as “essentially”
granting him a new trial if he could show the previously undisclosed reports were
material.
Defendant advanced a similar argument in the trial court. The court disagreed and
stated, “You say you felt the Court of Appeals’ decision, essentially, found a prima facie
basis for prejudice. If that were the case, I think they would have remanded the matter to
have a new trial, and that’s not what they did. They did a conditional reversal and said
you need to get the information. You need to evaluate the information to decide if there’s
a basis for motion for a new trial. Then you can bring a motion for new trial. [¶] So I
don’t know that I agree that the appellate decision found a prima facie basis for prejudice,
and I would invite you to show me where that is in the opinion.”
Trial counsel then conceded, “You’re right. I overstated my case.”

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 The argument fares no better on review. In Byrket I, we concluded, “Defendant is
entitled to conditional reversal and remand for further proceedings. [Citation.] If, after
disclosure of the statements, defendant elects to move for a new trial, he will be required
to demonstrate a reasonable probability the outcome would have been different had the
information been disclosed.” (Byrket I, supra, 2017 Cal.App. Unpub. Lexis 6964, *33.)
We then conditionally reversed the judgment, ordered the trial court to disclose the
internal affairs statements and allow defendant a reasonable time to investigate, and
stated, “If defendant can demonstrate he was prejudiced by the denial of this discovery,
the trial court must order a new trial.” (Ibid.)
A finding of materiality for the purpose of discovery does not equate to a finding
of prejudice. (People v. Gaines (2009) 46 Cal.4th 172, 183.) “‘California’s Pitchess
discovery scheme entitles a defendant to information that will “facilitate the
ascertainment of the facts” at trial [citation], that is, “all information pertinent to the
defense.”’” (Ibid.) A “determination that information in the requested records ought to
have been disclosed is not equivalent to a finding that such information would have had
any effect on the outcome of the underlying court proceeding—nor, indeed, even to a
finding that such information would have been admissible, inasmuch as the trial court’s
duty to disclose encompasses information that is not itself admissible but which ‘may
lead to admissible evidence.’ [Citation.] To obtain relief, then, a defendant who has
established that the trial court erred in denying Pitchess discovery must also demonstrate
a reasonable probability of a different outcome had the evidence been disclosed.” (Id. at
p. 182.)
In this case, the trial court ordered disclosure of the material on remand, as
directed, and trial counsel thereafter filed a motion for a new trial, as contemplated by our
opinion. The trial court’s ruling on that motion is now before us on review, and
notwithstanding defendant’s contrary assertion, we discern nothing unusual about this
procedural posture.

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II. Legal Standard
Postconviction, the trial court may grant a motion for a new trial “[w]hen new
evidence is discovered material to the defendant, and which he could not, with reasonable
diligence, have discovered and produced at the trial. 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, and if time is required by the defendant to procure such affidavits,
the court may postpone the hearing of the motion for such length of time as, under all
circumstances of the case, may seem reasonable.” (§ 1181, par. 8.)
“In ruling on a motion for new trial based on newly discovered evidence, the trial
court considers the following factors: ‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to 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 be shown by the best evidence of which the case admits.”’” (People v.
Delgado (1993) 5 Cal.4th 312, 328 (Delgado); accord, People v. O’Malley (2016) 62
Cal.4th 944, 1016–1017; People v. Howard (2010) 51 Cal.4th 15, 43 (Howard).) “In
addition, ‘the trial court may consider the credibility as well as materiality of the
evidence in its determination [of] whether introduction of the evidence in a new trial
would render a different result reasonably probable.’” (Delgado, supra, at p. 329; accord,
Howard, supra, at p. 43.)
“‘[T]he trial court has broad discretion in ruling on a new trial motion …,’ and its
‘ruling will be disturbed only for clear abuse of that discretion.’ [Citation.] In addition,
‘[w]e accept the trial court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence.’” (People v. Verdugo (2010) 50
Cal.4th 263, 308; accord, People v. O’Malley, supra, 62 Cal.4th at p. 1016; Howard,
supra, 51 Cal.4th at pp. 42–43.) “‘“[I]n determining whether there has been a proper

8.
exercise of discretion on such motion, each case must be judged from its own factual
background.”’” (Delgado, supra, 5 Cal.4th at p. 328; accord, Howard, supra, at p. 43.)
III. Analysis

A. Trial Court Did Not Misapprehend Applicable Legal Standard or
Scope of Discretion
In the trial court, defendant based his new trial motion on asserted inconsistencies
among all five internal affairs statements and testimony at trial. On appeal, defendant
focuses on Geherty and what he describes as “inconsistent facts that can only be
considered lies.”
In Byrket I, we rejected defendant’s claim that the trial court erred in admitting
evidence that Geherty faced no disciplinary consequences following the internal affairs
investigation and we also concluded that even if we assumed error, it was harmless,
stating, “This was a strong prosecution case and the defense was largely reliant on the
difficult task of attempting to undermine the credibility of law enforcement witnesses.”
(Byrket I, supra, 2017 Cal.App. Unpub. Lexis 6964, *21.) The trial court noted the
comment about the strength of the evidence when it denied defendant’s new trial motion,
and defendant now claims the trial court denied his motion largely because of this court’s
assessment of the evidence, which occurred “without access to the undisclosed reports
and restrained by the applicable standard of review.” Defendant argues that “the trial
court erred by delegating the decision on the weight of the evidence to this Court, and it
is for the trial court to determine the strength of the evidence.”
We disagree with defendant’s characterization of the ruling. The same judge who
presided over the jury trial ruled on defendant’s new trial motion and she was, therefore,
very well positioned to evaluate the new material and consider defendant’s arguments in
determining the probability of a different result on retrial. (Delgado, supra, 5 Cal.4th at
p. 328.)

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 Moreover, the judge issued a thorough, six-page written ruling reflecting that she
considered all the arguments, read the internal affairs statements, compared those
statements to the trial testimony and concluded there was no reasonable probability of a
different outcome had the statements been produced prior to trial. Unlike in People v.
Robarge, cited by defendant, the record simply does not support his claim that the judge
failed to discharge her duty under the law in ruling on his new trial motion and instead
based her ruling on this court’s comment in Byrket I about the strength of the evidence.
(People v. Robarge (1953) 41 Cal.2d 628, 634 [reversal and remand required where
record reflected trial court felt bound by jury’s verdict and “failed to give [the] defendant
the benefit of its independent conclusion as to the sufficiency of credible evidence to
support the verdict”]; People v. Watts (2018) 22 Cal.App.5th 102, 115 [reversal and
remand required where “the trial court did not articulate the correct standard of review,
failed to act as a 13th juror to review and independently evaluate the evidence, and failed
to give [the defendant] the benefit of its independent assessment regarding the sufficiency
of credible evidence to support the verdicts”].) We now consider whether the trial court’s
ruling was otherwise an abuse of discretion.
B. Trial Court Did Not Err in Evaluation of Newly Discovered Evidence
Section 69 can be violated in two ways. (People v. Smith (2013) 57 Cal.4th 232,
240, citing In re Manuel G. (1997) 16 Cal.4th 805, 814.) “‘The first is attempting by
threats or violence to deter or prevent an officer from performing a duty imposed by law;
the second is resisting by force or violence an officer in the performance of his or her
duty.’” (People v. Smith, supra, at p. 240, quoting In re Manuel G., supra, at p. 814.) As
we explained in Byrket I, defendant’s conviction for resisting Geherty with force or
violence under section 69 required the jury to find, in relevant part, that Geherty was
acting lawfully at the time the offense was committed. (People v. Smith, supra, at
pp. 240–241; In re Manuel G., supra, at p. 817.) An officer’s use of excessive force
renders an arrest unlawful, and that was defendant’s theory at trial. (People v. Southard

10.
(2021) 62 Cal.App.5th 424, 434–435; People v. Olguin (1981) 119 Cal.App.3d 39, 44–
46; People v. White (1980) 101 Cal.App.3d 161, 166–167.) As such, the defense relied
largely on attacking Geherty’s credibility, with the hope the jury would doubt or reject
his version of events.
However, “[n]ewly discovered evidence does not necessarily mean that false
evidence was presented at trial.” (In re Masters (2019) 7 Cal.5th 1054, 1081.) Further,
generally, “‘“[a] new trial on the ground of newly discovered evidence is not granted
where the only value of the newly discovered testimony is as impeaching evidence” or to
contradict a witness of the opposing party.’” (People v. Jimenez (2019) 32 Cal.App.5th
409, 423, quoting People v. Hall (2010) 187 Cal.App.4th 282, 299; accord, People v.
Green (1982) 130 Cal.App.3d 1, 11 [“As a general rule, ‘evidence which merely
impeaches a witness is not significant enough to make a different result probable .…’”];
see People v. Ah Noon (1897) 116 Cal. 656, 657–658 [“It would have to be a very
exceptional showing that would move this court to order a new trial upon newly
discovered evidence which would only serve the purpose of impeaching a witness .…”].)
Defendant’s conviction was based on the events that occurred at the entrance to
Red’s Marina after Geherty saw defendant slipping his handcuffs in the patrol car during
the transport. Defendant relies on asserted factual inconsistencies regarding both the
events in Onyx and the events at Red’s Marina. For clarity, we address the events in two
parts, but we consider the overall effect of the new material in reaching the conclusion, as
we do here, that the trial court did not err.
1. Onyx
Regarding the events in Onyx, the trial court ruled, “There was some
inconsistency among the witnesses as to whether the defendant was running or walking;
climbing up on a wall or a fence, or whether he was merely attempting to climb up onto a
wall or a fence; and the substance of his incoherent statements. These inconsistencies
among the recollections of the witnesses in their trial testimony were highlighted by the

11.
defense during the trial, and the slight differences in some aspects of the witnesses’
internal affairs statements were not of such a material nature as to establish there would
be a different outcome with a new trial.”
In briefing on appeal, defendant points out, “Deputy Geherty testified at trial that
he witnessed [defendant] jump onto a chain link fence, and then come down as Deputy
Garza approached. [Citation.] However, in the Internal Affairs interview, Geherty said
[defendant] told him that he had attempted to jump the fence, and cut his wrists in the
process.” He also points out that Geherty did not initially mention Brooks in his internal
affairs statement, but, after watching Brooks testify at trial, his testimony tracked that of
Brooks. In contrast, Garza, who did not watch Brooks testify, did not mention Brooks in
his statement or during his testimony. Finally, defendant points to Garza’s uncertainty in
his statement concerning whether Geherty was transporting defendant to the crisis center
voluntarily or on a Welfare and Institutions Code section 5150 hold versus his trial
testimony that Geherty said defendant was willing to go to the crisis center.
As an initial matter, the events in defendant’s underlying conviction occurred on
the morning of April 21, 2013; Geherty, Garza, Brooks, Melby, and Kirkham were
interviewed as part of the internal affairs investigation in February and March 2014; and
the evidentiary phase of defendant’s jury trial began at the end of October 2014. Human
memory is imperfect, and some variation between a witness’s statement and later trial
testimony, or among multiple witnesses’ statements and later trial testimony, is neither
unusual nor unexpected. (See People v. Verdugo, supra, 50 Cal.4th at p. 311 [witnesses’
memories naturally fade over time]; People v. Swain (1995) 33 Cal.App.4th 499, 504
[same].)
In this case, some of what defendant identifies as discrepancies are simply
attributable to the questions asked during the investigation versus the questions asked
during trial. For example, Geherty was asked during the internal affairs interview what
he knew about defendant’s bleeding wrists and he responded that defendant said he cut

12.
them jumping a chain link fence.7 During trial, Geherty was asked what he saw at the
scene in Onyx, and he responded, in part, that while he was talking to defendant’s son, he
saw defendant jump up on a chain link fence. These are answers to different questions,
not factual conflicts between Geherty’s versions of events.
Other discrepancies appear to be nothing more than natural variations that are
expected when someone relates past events more than one time. There was no dispute
that Brooks, Geherty, and Garza arrived separately at the scene in Onyx, or that Geherty
was transporting defendant to the crisis center when the events giving rise to the criminal
charge occurred. Despite defendant’s representation to the contrary, Geherty and Garza
both mentioned Brooks was present on the scene in Onyx during their internal affairs
statements, and the slightly differing descriptions of the events that transpired there,
including what each of the deputies did or saw and whether defendant was going to the
crisis center voluntarily or pursuant to a Welfare and Institutions Code section 5150 hold,
were minor.
At best, trial counsel might have asked additional questions of the witnesses but as
impeachment material, these slight variations were of inconsequential value. Defendant
fails to show the trial court erred in so concluding.
2. Red’s Marina
Regarding the events at Red’s Marina, the trial court ruled,

“The altercation between the Defendant and Deputy Geherty at
Red’s Marina was precipitated by the Defendant slipping his handcuffs in
the patrol car on the journey west on Highway 178 and kicking the inside of
the patrol car. When the other deputies and officers arrived, they saw
Deputy Geherty wrestling to gain control of the Defendant outside of the
patrol car. The deputies assisted in gaining control of the Defendant and
replacing him into the patrol car in a hobble restraint and handcuffs. The
testimony of the witnesses at trial clearly conveyed the chaos of the event,
and the defense fully explored the differences in the testimony of the

7 There was evidence defendant was bleeding from his wrists at the scene in Onyx.

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 witnesses to the event. The inconsistency in statements by the deputies to
the internal affairs officer were not so materially different as to persuade
the Court there would be a different outcome if the matter were tried again.

“The most persuasive argument of the defense is that Deputy
Geherty never told the internal affairs officer that the Defendant kicked him
in the groin, only that the Defendant attempted to kick him. (Motion for
New Trial at p. 38, lines 10-23.) However, a review of the internal affairs
statements by Deputy Geherty completely discredit this argument. Deputy
Geherty did tell the internal affairs officer that the Defendant kicked him
‘several times in the groin and lower leg area.’ (Geherty IA at p. 16,
line 9.) He added that the defendant attempted to kick him ‘Approximately
10 times’ and actually made contact with him ‘Between 4 and 5 [times].’
(Geherty IA at p. 16, line 10-13.)”
In briefing, defendant focuses on Geherty’s asserted groin injury, which the trial
court identified as his most persuasive argument facially, and on Geherty’s baton use.
Turning first to the groin injury, at trial, Geherty testified during direct examination that
defendant kicked him in the right leg and groin area. The prosecutor then asked if
defendant kicked him in the genitals and he answered yes. When the prosecutor asked
Geherty to describe the pain from his injuries, he testified that the cuts to his leg did not
bother him much, but he felt pain in his groin area. On cross-examination, Geherty
responded affirmatively when trial counsel questioned him about whether he was kicked
in his private parts, whether it “hurt like hell,” and whether the injury “lasted the longest
and hurt the most.”
In his police report, however, Geherty documented that defendant attempted to
kick him in the groin. Trial counsel questioned Geherty regarding this inconsistency at
trial.
During the internal affairs investigation, Geherty mentioned being kicked in the
groin, as the trial court found. Geherty stated that defendant attempted to kick him
several times in the head and upper body but did not make contact. He also stated that
defendant attempted to kick him in the lower body approximately ten times, and made
contact with his groin and lower leg area between four and five times. When

14.
subsequently asked whether he sustained any injuries, Geherty responded that he
sustained two minor lacerations to his right shin and knee, which he believed were from
defendant kicking him, and a cut on his left hand from an unknown cause.
Trial counsel had the opportunity to impeach Geherty at trial with the
inconsistencies in his police report and did so. Because Geherty’s trial testimony that
defendant kicked him in his leg and groin a few times was consistent with his statement
to internal affairs, that aspect of his statement would have added nothing of value in
terms of additional impeachment at trial.
Regarding his injuries, Geherty testified to the pain from being kicked in the groin
after he was specifically asked about it by trial counsel. During the internal affairs
investigation, Geherty was asked whether he sustained any injuries, but he was not asked
about pain and he did not mention pain. However, Deputy Melby and Deputy Kirkham
both related during their internal affairs interviews that they saw Geherty in pain at Red’s
Marina, which they thought was from a groin injury. Deputy Melby stated, “[A]t the end
of the incident [Geherty] was slumped over … the trunk of the car and he was
complaining of groin pain. I think he got struck in the groin.” Deputy Kirkham stated,
“[I]t seemed like the deputy that was transporting [defendant] that stopped and got him
out of the car got kicked in the groin, because he was kind of bent over.” Under these
circumstances, the internal affairs statements would not have assisted the defense in
impeaching Geherty’s trial testimony concerning his groin injury in any meaningful way,
and Melby’s and Kirkham’s statements would have instead bolstered Geherty’s testimony
he was kicked in the groan and it was painful.
Finally, as to Geherty’s baton use, defendant argues Geherty “changed his
testimony regarding his use of force in order to line up with [defendant’s] documented
injuries.” Geherty testified he struck defendant with his baton in the right thigh area, just
above the knee, and that he wedged his baton between defendant’s right torso area and
the road to get the leverage needed to force defendant over onto his stomach. In his

15.
internal affairs statement, Geherty initially said he believed he struck defendant on his leg
below the knee, as defendant argues, but Geherty then said it could have been higher, on
defendant’s thigh. Geherty also stated during his interview that he had to use force to roll
defendant over because defendant was resisting the entire time. Shown photographs of a
linear bruise above defendant’s right knee and a linear bruise on the right side of
defendant’s abdomen during his interview, Geherty said that the bruises were in the
approximate location where he used his baton, which possibly caused the thigh bruise
and, he believed, caused the abdominal bruise. We disagree that this evidence suggests
Geherty was untruthful at trial or that Geherty’s internal affairs statement would have
resulted in any benefit of consequence to the defense in terms of impeachment.
As previously stated, a defendant is generally not entitled to a new trial where the
only value of the newly discovered evidence is as impeachment evidence. (People v.
Jimenez, supra, 32 Cal.App.5th at p. 423; People v. Green, supra, 130 Cal.App.3d at
p. 11.) Here, review of the internal affairs statements belies some of defendant’s claims
that the new evidence would have been beneficial to impeach Geherty, and in those
instances in which there might have been some arguable benefit, its value was minimal at
best. Multiple witnesses testified to the struggle between Geherty and defendant at the
entrance to Red’s Marina, including a civilian witness who pulled over and offered to
assist Geherty, and defendant fails to persuade us that the newly discovered evidence
would have any measurable impact on a retrial.
Additionally, in urging that the trial court abused its discretion, defendant
overstates the strength of his case. To that end, he asserts, among other things, that he
had no history of mental illness, David lied about his behavior, and Geherty broke his
ribs and fractured his spine during the struggle. However, the jail calls with defendant’s
wife speak to mental instability that preceded David’s call to 911 by weeks; three
deputies testified that defendant was behaving erratically in Onyx; testimony by
defendant’s wife that she photographed numerous injuries at the same time was

16.
undermined by the fact defendant was wearing different clothing in some of the photos;
and defendant’s doctor testified he has a condition that makes him susceptible to
fractures, bruises start to turn yellow and green within two or three days of injury, and his
bruises, eight days postarrest, appeared fresh.
In sum, the trial court was well positioned to evaluate defendant’s motion, having
presided over the jury trial; and the record reflects the trial court thoroughly reviewed
defendant’s claims. Following our review of the matter, we conclude that defendant
failed to meet his burden of showing that the trial court abused its discretion when it
found the internal affairs statements “would not have rendered a different result on retrial
probable .…” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 333.) Accordingly,
we affirm the judgment.
DISPOSITION
The judgment is affirmed.

MEEHAN, J.
WE CONCUR:

LEVY, Acting P. J.

FRANSON, J.

17.