Filed 12/27/17 P. v. Greer CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

EZEQUE SHAU-DOE GREER,

Defendant and Appellant.
C080335

(Super. Ct. No. 14F07900)



A jury found defendant Ezeque Shau-Doe Greer guilty of two counts of second degree robbery, one count of attempted second degree robbery, and three counts of assault likely to produce great bodily injury. The trial court sentenced him to five years in prison.
On appeal, defendant contends the trial court prejudicially erred in denying his motion to reopen the case to present additional evidence in response to the prosecutor’s rebuttal argument. He further contends the trial court erred in denying his motion for new trial based on ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 8:00 p.m. on November 24, 2014, Jonathan Decima, Jacob Decima, and Matthew Parks were walking through Southside Park in Sacramento. It was very dark but there were street lamps in the park.
As Jonathan, Jacob, and Matthew were walking, they passed a group of four men wearing hoodies, i.e., sweatshirts with hoods. One of the men, later identified as Trinos, offered to sell them weed. They declined the offer and continued walking. Shortly thereafter, they heard the four men approaching from behind. They attempted to get away by moving faster but were unsuccessful. When the four men caught up to them, the area was “pretty well lit” by a lamp. The man wearing a blue hoodie with a shaved head, later identified as defendant, immediately brandished a gun and said, “[S]top moving, we’re going to take your stuff.” Trinos, who was wearing a black or gray hoodie and glasses, also told them to stop moving. One of the men also warned them not to “do anything stupid.”
Thereafter, Trinos punched Jacob in the nose, causing him to fall to the ground. While Jacob was on the ground, he handed over his wallet. Jonathan emptied his pockets after Trinos told him to do so. Matthew tried to run away but was grabbed by the neck, pulled away from Jonathan and Jacob, and placed on his knees against a fence. A “silver’ish” gun was pointed at his head and he was told to give up his stuff or he would be shot. Because Matthew did not comply, he was repeatedly hit and kicked. Meanwhile, defendant approached Jonathan and told him to empty his pockets while holding a gun to his head. When Jonathan said he had already done so, defendant hit Jonathan in the face twice with his left hand while holding the gun in his right hand. Eventually, the four men fled on foot with several items, including Jacob’s wallet and Matthew’s phone and wallet. Jonathan, Jacob, and Matthew immediately ran to Jonathan’s apartment and Jonathan’s sister called the police.
When police officers arrived a few minutes later, Jonathan, Jacob, and Matthew described what had happened, gave the officers a description of the perpetrators, and told the officers which direction they ran off. Around 20 minutes later, Jonathan, Jacob, and Matthew were taken to a field showup of three suspects -- defendant, Trinos, and Roy Rayford.
Prior to the field showup, a police officer found defendant, Trinos and Rayford walking together in the area near the robbery. The officer detained them because they matched the description of the robbery suspects -- Black/Hispanic males age 18 to 22 wearing blue or “gray’ish” colored hoodies; one of which was wearing “square clear lens glasses.” Trinos was carrying a black backpack while Rayford was carrying a yellow backpack. A search of the yellow backpack revealed a replica handgun. The yellow backpack, however, did not contain any of the stolen items. A search of the area did not reveal any of the stolen items.
The in-car camera of a police car recorded the field showup conducted with Jonathan and Jacob. The video was played for the jury. When Jacob viewed defendant and Rayford, he said it was possible they were involved in the robbery but was not certain. However, Jacob was positive Trinos was the person who had punched and robbed him. When Jonathan viewed defendant, he was 100 percent certain defendant had pointed a gun at him and punched him twice in the face. Jonathan was also certain Trinos was involved in the robbery. He identified Trinos as the person who offered to sell the group weed. However, he was not 100 percent certain Rayford was involved in the robbery, even though Rayford’s jacket “really stood out to him.” According to Jonathan, “it was more likely than not [Rayford] was one of [the perpetrators].” He was 75 percent sure Rayford was involved in the robbery based on his jacket. Matthew was only able to positively identify Trinos.
When Jonathan was asked at trial if he saw any of the men involved in the robbery, he pointed toward defendant and said, “I believe he might be the man in glasses, but I couldn’t be sure. I couldn’t be 100 percent.” However, when he was shown a black and white picture of Trinos taken from the field showup recording, he immediately identified Trinos as the man who offered to sell him weed. He also said Trinos was the man who told the group to stop moving and told him to empty his pockets. After Jonathan viewed defendant’s color booking photograph, he immediately identified defendant as the person who brandished a firearm and punched him in the face twice. He explained that he got a good look at defendant’s face for about five to 10 seconds when defendant was two feet away from him. Jonathan said he was 100 percent sure about his identification of defendant and Trinos during the field showup. He also said the replica gun found in the yellow backpack was the gun defendant held to his head. He explained that he recognized the gun because it had a silver streak from where the paint had worn off, and because the model of the gun was one of his favorite models -- a Colt 911 pistol.
After Jonathan viewed the black and white picture of Trinos and the booking photograph of defendant, he was asked, again, which one of the perpetrators he believed defendant was. The following exchange then occurred: “[Jonathan:] Now, I got to look at it. Maybe the man in the blue sweater. Honestly, it’s just a resemblance. I honestly 100 percent couldn’t pin him down. [¶] [Prosecutor:] After I showed you those pictures before you answered that question, who did you indicate [defendant] was? [¶] [Jonathan:] The man in the glasses. [¶] [Prosecutor:] Do you believe [defendant] was the man in the glasses? [¶] [Jonathan:] I couldn’t say in either direction really.”
When Jacob and Matthew testified, they confirmed that they had only recognized Trinos during the field showup. Jacob testified it was “real easy” to recognize Trinos. He explained he was able to identify Trinos immediately and was 100 percent sure Trinos was involved in the robbery. After Matthew viewed a picture of Trinos, he said Trinos was “the guy with the glasses.” He also testified the replica firearm found in the yellow backpack was used during the robbery.
DISCUSSION
I
Motion To Reopen Case
Defendant contends the trial court prejudicially erred in denying his motion to reopen the case to present additional evidence in response to the prosecutor’s rebuttal argument. We disagree.
Defendant’s theory of the case was false identity. During closing argument, defense counsel made various arguments as to why the victims’ identifications were not reliable. Among other things, defense counsel argued that Jonathan failed to make an in-court identification of defendant and erroneously identified defendant as the perpetrator who wore glasses (i.e., Trinos).
In rebuttal, the prosecutor responded to defense counsel’s argument that Jonathan’s identification of defendant was unreliable based on his inability to make an in-court identification of defendant. To show the jury why Jonathan was confused, the prosecutor simultaneously showed the jury the black and white picture of Trinos taken from the field showup recording and defendant’s color booking photograph. The prosecutor then argued, in relevant part, as follows: “Now aside from the glasses on Mr. Trinos in this picture, those two actually look fairly familiar. They have similar facial features. Similar facial structure. And in court when Jonathan was doing that identification yesterday, it had been nine months since November 24th that he had seen them. [¶] As you can see in [defendant’s] booking photo, he had a bald head. And I checked my notes and [trial counsel] asked him about that and Jonathan said that the guy in the blue hoodie was bald. It looked like he had stubble. He pointed to his face and he indicated, like, facial stubble and said that was on top of his head which is actually pretty consistent of what you see in the booking photo of what you see of [defendant] that night. [¶] As to the in-court ID, it had been nine months they look familiar, they look similar. He hasn’t seen [defendant] in nine months. And he said that and then he said, no, I think that’s the guy in the blue sweatshirt.”
Around noon on the first full day of jury deliberations, the jury requested a readback of the entire testimony given by Jonathan, Jacob, and Matthew. At that juncture, defense counsel made an oral motion to reopen the case to introduce the color booking photograph of Trinos for the purpose of showing that Trinos and defendant did not look alike at the time of the robbery. In support of this request, defense counsel explained that he had assumed the prosecutor introduced the black and white picture of Trinos to show he was wearing glasses during the robbery, as the field showup recording did not disclose that any of the suspects were wearing glasses. Counsel further explained that when he compared the black and white picture of Trinos with the color booking photograph of defendant, he could “see” the prosecutor’s argument that Trinos and defendant looked similar, especially the skin tone. He argued, however, that a comparison of the color booking photographs of Trinos and defendant shows that the two men do not look alike, and that he wanted to admit Trinos’s booking photograph so the jury did not have the false impression Trinos and defendant looked similar.
In arguing that the jury would be left with a false impression regarding Trinos’s appearance, defense counsel reasoned as follows: “[W]hen we were in court, Jonathan . . . said, . . . at the showup [he] was 100 percent sure that the guy in the blue shirt was the guy that [sic] did this, he’s referring to [defendant] because that was [defendant]. [¶] But then in court when he was asked to identify anybody, he looked at [defendant] and said, I think that’s the guy with glasses. And then even when shown the photograph of [defendant] then he couldn’t be sure which was which, . . . and so when the DA argues they look similar, it kind of bolsters the confusion that Jonathan had . . . in court. [¶] But to me now thinking about it, it also shows that really Jonathan didn’t remember anything about what the suspects looked [like] out there that night because he’s now obviously basing it on the photographs. He’s confusing the two. [¶] When you look at the real booking photograph of Mr. Trinos, it doesn’t look anything like [defendant]. And [when you compare the black and white picture of Trinos and the color picture of defendant], you can see how . . . they look alike, especially the skin tone. [¶] In real life you would never confuse that skin tone difference between those two people, but in the pictures that are not before the jury, if left the way it is, they look the same skin tone so the jury can sit back and say, wow, I understand [Jonathan’s] confusion. Wow, they do look alike. Even the skin tone is the same. It’s a horrible picture in terms of identification purposes.” Defense counsel requested that the booking photograph of Trinos be submitted to the jury without any additional argument or testimony.
The trial court denied defendant’s request to reopen the case, reasoning that admitting the color booking photograph of Trinos would cause the jury to speculate as to its importance and would cause confusion. The court also noted that defendant had the opportunity to admit the photograph during trial and waited until the jury had been deliberating for about five hours before moving to reopen the case.
“The decision to reopen a criminal matter to permit the introduction of additional evidence is a matter left to the broad discretion of the trial court.” (People v. Jones (2012) 54 Cal.4th 1, 66.) In determining whether the trial court abused its discretion by denying a defense motion to reopen, the reviewing court considers: “ ‘(1) the stage the proceedings had reached when the motion was made; (2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.’ ” (People v. Jones (2003) 30 Cal.4th 1084, 1110.) Taken together, these factors do not show an abuse of discretion here.
Defendant’s motion to reopen the case was made after the jury had been deliberating for about five hours. Thus, the first factor weighs against granting the motion. (People v. Funes (1994) 23 Cal.App.4th 1506, 1520.) The second factor also weighs against granting the motion. The color booking photograph of Trinos was relevant evidence that was indisputably available during trial. The photograph had been marked as People’s exhibit 7. It was not new evidence that could not have been presented in the normal course of trial. (People v. Jones, supra, 54 Cal.4th at p. 66 [“There is no abuse of discretion in refusing to reopen where ‘the evidence the defense sought to offer at reopening was indisputably available during the trial’ ”]; People v. Monterroso (2004) 34 Cal.4th 743, 779 [“The trial court was entitled to rely on defendant’s lack of diligence in denying the motion to reopen”]; People v. Funes, supra, 23 Cal.App.4th at p. 1521 [no abuse of discretion in denying motion to reopen where defense had pretrial access to all of the medical reports that indicated that the overlooked evidence might be relevant].) The third and fourth factors do not demonstrate an abuse of discretion. The booking photograph of Trinos was not particularly significant in light of the other evidence presented at trial, including Jonathan’s positive identification of defendant and Trinos during the field showup and Jonathan’s positive identification of defendant and Trinos at trial from photographs taken shortly after the robbery. Further, the trial court was rightfully concerned that the late submission of the color booking photograph of Trinos could have caused the jurors to be confused and to speculate as to the importance of the evidence, thereby creating a risk the evidence would be unduly emphasized by the jury.
II
Motion For New Trial
Defendant contends the trial court erred in denying his motion for new trial based on ineffective assistance of counsel. He argues trial counsel was prejudicially deficient in failing to introduce the booking photograph of Trinos. We disagree.
“Although ineffective assistance of counsel is not one of the statutory grounds for granting a new trial, the issue may nonetheless be asserted as the basis for a motion for new trial.” (People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) “To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) “ ‘If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt (1997) 15 Cal.4th 619, 703.)
After the jury rendered its verdicts, defendant filed a motion for new trial based on insufficiency of the evidence and ineffective assistance of counsel. As relevant here, defendant contended trial counsel rendered ineffective assistance in failing to introduce the color booking photograph of Trinos. He argued that this evidence would have shown defendant and Trinos did not look similar, and that, had the evidence been admitted at trial, the jury would have realized the prosecutor’s rebuttal argument claiming defendant and Trinos looked similar “was not real” because no person could ever confuse Trinos and defendant. Defense counsel explained the evidence was important because the only person who purported to identify defendant was Jonathan but Jonathan indicated at trial he believed defendant was Trinos, and, after viewing photographs of defendant and Trinos, was not sure whether defendant was Trinos. According to defendant, the admission of the color booking photograph of Trinos would have bolstered his defense by showing that Jonathan’s identification of him was unreliable.
The trial court ruled that defendant had failed to show deficient performance or prejudice. In ruling on defendant’s motion, the court explained that Jonathan did not positively identify defendant at trial as “the man in glasses”; rather, Jonathan said defendant might be the man in glasses but was not sure. The court further explained that Jonathan positively identified defendant in the field showup, and that, upon viewing defendant’s booking photograph at trial, he immediately identified defendant as the man who brandished a firearm and punched him in the face twice. The court noted that when Jonathan was subsequently asked follow-up questions as to who he thought defendant was based on defendant’s courtroom appearance, Jonathan indicated defendant could have been the man in the blue sweatshirt but he was not 100 percent sure because defendant only resembled that man. The court further noted that the robbery had occurred about eight months prior to Jonathan’s testimony, and that defendant’s hair at the time of trial was “quite different” from the night of the robbery in that it had grown out; defendant’s hair was no longer “buzzed cut and shaved.” The court found that the admission of the color booking photograph of Trinos would not have changed the evidence from the field showup, and that it was speculative as to whether the admission of the photograph would have changed Jonathan’s trial testimony, since Jonathan, upon viewing defendant’s booking photograph, was sure defendant was not the guy in the glasses but instead the guy who brandished a firearm and punched him in the face twice. The court noted that Jonathan’s inability to positively identify defendant at trial based on his courtroom appearance could have been based on his changed appearance; specifically, his longer hair.
We need not determine whether trial counsel was deficient because defendant has failed to show prejudice from the alleged deficient performance. Based on the evidence adduced at trial, it is not reasonably probable the outcome of the case would have been more favorable to defendant had the booking photograph of Trinos been admitted. During the field showup, Jonathan was certain that defendant was the man who pointed a gun at him and punched him in the face twice. At trial, Jonathan immediately identified defendant as this person after viewing defendant’s booking photograph. In addition, shortly after the robbery, defendant was found by a police officer walking with Trinos and Rayford in the area near where the robbery occurred. Jonathan, Jacob, and Matthew all positively identified Trinos as being involved in the robbery during the field showup. At trial, Jonathan and Matthew identified Trinos as the person who wore glasses during the robbery after they viewed the black and white picture of Trinos taken from the in-car video recording of the field showups. There was also evidence that the replica gun found in the yellow backpack carried by Rayford was used during the robbery. Under the circumstances, we are convinced defendant suffered no prejudice from trial counsel’s failure to introduce the color booking photograph of Trinos.
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.

We concur:



/s/
Nicholson, Acting P. J.



/s/
Hull, J.