Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 160110
Kline, P.J.
Joshua Daniel Gordon appeals from conviction of second degree robbery. He contends that the trial court erred in denying his motion for a new trial based on newly discovered evidence. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information on December 29, 2008, with robbery in the second degree. (Pen. Code, § 211.) It was alleged the offense was a serious felony within the meaning of section 1192.7, subdivision (c), and a violent felony (§ 667.5, subd. (c)(9)). It was further alleged that appellant had suffered a prior conviction of second degree robbery on April 6, 2005 in Alameda County, which constituted a strike (§ 1170.12, subd. (c)(1); § 667, subd. (e)(1)), a serious felony prior (§ 667, subd. (a)(1)), and a prison prior (§ 667.5, subd. (b)). At the preliminary hearing, appellant was unsuccessful in arguing that the identification procedures used were unduly suggestive.
All further statutory references are to the Penal Code unless otherwise specified.
A jury trial began on February 24, 2009. Appellant moved to exclude the out-of-court identifications by the complaining witness because he claimed the procedures used by the police had tainted them. The court deferred ruling on this motion until it heard testimony. A motion made at the close of the prosecution’s case (§ 1118.1) on the grounds of unduly suggestive identification procedures was denied. On March 10, 2009, the jury found appellant guilty of second degree robbery.
On April 23, 2009, the defense filed a motion for a new trial based on a newly-discovered witness, Jasmine Carrington, appellant’s girlfriend and the mother of one of his children, who was prepared to give testimony material to the issues in the trial. Counsel had alerted the district attorney that he was searching for the witness, and he and an investigator had made at least 10 attempts to contact her via telephone before trial. She signed an affidavit stating that she drove appellant to the Oak’s Club on the night of the incident, she watched him enter the club alone, and he exited alone 30 to 45 minutes later, at which point she drove him to her grandmother’s house. She also explained that she had briefly moved, prompted by a sexual assault, and thus had been absent from the Bay Area during the trial.
At a hearing held on April 24, 2009, the court denied the new trial motion because it found that the evidence was cumulative, unlikely to produce a different result, and could have been obtained during trial through due diligence. Appellant was sentenced to the upper term of five years on the robbery conviction; the sentence was doubled for appellant’s prior strike, and five years were added for the serious felony enhancement (§ 667, subd. (a)), for a total term of 15 years in state prison. Appellant made an oral Romero motion to strike the strike (§ 1385), which was denied.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Appellant filed a timely notice of appeal on May 15, 2009.
STATEMENT OF FACTS
Around 10:00 p.m. on November 21, 2008, Yosef Gedela arrived at the Oaks Club card room, restaurant, and bar in Emeryville via bus after cashing his paycheck. Gedela, an immigrant from Eritrea, frequently goes to the Oaks Club. On this occasion, he had $2,500 in cash on his person. He proceeded to play cards, winning approximately an additional $1,000.
When Gedela went to the bar to buy a beer, he encountered a woman who asked him to buy her a drink. In the process of retrieving money to do so, Gedela pulled the entire $3,500 out of his pocket, revealing it to the woman. The two spoke for approximately 30 minutes. During that time, the woman used the bathroom two or three times and spoke to someone on her cell phone. The woman offered Gedela a ride home. He accepted, and after she conducted a brief telephone conversation, they left the Oaks Club between midnight and 12:30 a.m.
The pair got into the woman’s car and began driving toward Oakland, but the woman turned around and pulled into a dark street near the Oaks Club. During the drive she had been speaking on a cell phone, but Gedela could not hear what she was saying. When she stopped the car, a tall Black man opened the passenger door, punched Gedela in the face, called him a son of a bitch, and asked where the money was. Gedela testified that the man was wearing a dark, mixed-color shirt with a hood. Gedela also testified that the man was wearing either black jeans or blue jeans, which he described as “dark pants.” When the door opened, the car’s interior light illuminated the man’s face. The man searched Gedela thoroughly, tearing his clothing and removing his shoes and socks. During the search, the assailant bent over Gedela and into the lit car, giving Gedela an opportunity to see his face, even though Gedela’s glasses fell off after the first punch. The man took Gedela’s cell phone, wallet, and keys, as well as the $3,500. The man then punched Gedela twice in the stomach, pulled him from the car and pushed him to the ground. The man got in the car, and he and the woman drove away.
Daniel Beal, an Oaks Club security guard who was escorting an employee to a nearby car, heard Gedela moaning and found him lying on the ground asking for help. Gedela appeared to be in shock. Beal escorted Gedela back to the parking lot of the club. Employees of the club arranged for a ride home.
The next morning, Gedela contacted the Oakland Police Department. He was told that he must contact the Emeryville Police Department. He returned to the Oaks Club, where he called the Emeryville Police Department and met with Officer Spencer Giddings. Gedela provided descriptions of both the man and the woman. Giddings and Oaks Club shift manager John LaRosa reviewed surveillance tapes from the club’s 25 to 30 cameras and located Gedela. They then found a woman who fit Gedela’s description and who was seen speaking to him at length. Giddings testified that he reversed the security tapes and tracked the woman’s movements. According to his testimony, the tape showed the woman entering the club with a Black male who was wearing a hooded sweatshirt and jeans. The man appeared to match the description of the assailant that Gedela had provided. The man and woman walked shoulder-to-shoulder in a familiar manner, entered the bar area, ordered drinks and spoke, and then entered the card room, where they parted ways. Shortly thereafter, the woman engaged Gedela in conversation at the bar. LaRosa testified that, in reviewing the tapes, he did not see the man and woman entering the Oaks Club together or entering the bar to order a drink. However, an internal incident report he wrote for the club on the day he reviewed the tapes indicated the man and woman had entered together and were seen drinking at the bar.
According to the testimony of Giddings and LaRosa, the video showed Gedela and the woman speaking for a few minutes, leaving the bar area briefly, and then returning. Shortly after Gedela and the woman returned to the bar, the woman appeared to excuse herself and walked toward the bathroom. The Black man, still at the card table, seemingly checked his cell phone while Gedela and the woman were outside. He subsequently collected his chips and walked to the banker window, and then proceeded to the hallway near the restrooms. Neither the man nor the woman actually entered a restroom, but they stood at the end of the hallway talking and then apparently stood in a blind pocket in the surveillance system for 30 to 45 seconds. They left the hallway at the same time. The woman returned to Gedela and motioned for him to accompany her. They left by the northeast exit. The man exited via the southern door within a few minutes of Gedela and the woman leaving. Not all of the tape was retained, including the images Officer Giddings described of the Black woman and Black man entering the Oaks Club together.
Gedela was still at the Oaks Club when Giddings concluded his review of the tape. Giddings testified that he showed Gedela three still photographs LaRosa had made from the video, one each of the Black woman, the Black man, and another Black man. Gedela identified the photograph of appellant as his assailant, and did not recognize the other Black man in the photos. He identified appellant again in court. Gedela testified that Giddings showed him only one picture, that of the appellant.
Giddings left the club in order to make “track fliers” of the suspects—similar to “wanted” pictures sent to other law enforcement agencies—and prepare a report. Around 8:00 p.m., LaRosa called and told Giddings that the suspect was in the card room. Both LaRosa and Giddings identified the suspect as the one seen on the surveillance video. Giddings escorted the man outside. Gedela, also at the club, was taken outside to perform an in-field show-up identification. Gedela identified the suspect, who was in handcuffs and taken out of a police cruiser for the purposes of the identification, as his assailant. The suspect was placed under arrest.
While waiting for the in-field show-up, appellant asked Emeryville Police Officer Allen Johnson why he had been arrested. Johnson showed appellant the image of him walking out of the bar. Appellant said, “ ‘That’s me, but I was only here last night gambling.’ ” He repeatedly denied robbing anyone. He admitted he had been in the bar, but stated he was “only trying to mack some ho.”
DISCUSSION
“ ‘ “The determination of a motion for new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citations.]” (People v. Turner (1994) 8 Cal.4th 137, 212). “ ‘ [I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.’ [Citation.]” (People v. Dyer (1988) 45 Cal.3d 26, 52.) An appellate court will not interfere with a trial court’s discretion absent a clear showing of abuse. (People v. Williams (1962) 57 Cal.2d 263, 270.)
“ ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citations.]” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339.) This test has not been consistently applied by the courts. It has given rise to a variety of interpretations, ranging from cases stating that abuse of discretion may be found only when the court acted in a fashion that was “ ‘arbitrary, capricious, or patently absurd’ ” (see People v. Rodriguez (1994) 8 Cal.4th 1060, 1124), to cases indicating an abuse of discretion occurs where decisions are not “ ‘grounded in reasoned judgment and guided by legal principles and policies...’ [citation]” (see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977).
In People v. Jacobs (2007) 156 Cal.App.4th 728, this court rejected the view that abuse of discretion occurs only when the trial court’s action was “arbitrary, whimsical, or capricious.” (Id. at pp. 736-737.) “ ‘This pejorative boilerplate is misleading since it implies that in every case in which a trial court is reversed for an abuse of discretion its action was utterly irrational. Although irrationality is beyond the legal pale it does not mark the legal boundaries which fence in discretion.’ [¶] “... ‘ “ ‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]’ ” (Westside Community for Independent Living, Inc. v. Obledo (198[3]) 33 Cal.3d 348, 355, citing to 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 244.)’ ” (People v.Jacobs, at p. 737, quoting City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
“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.” ’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328, quoting People v. Sutton (1887) 73 Cal. 243, 247-248.) These factors should not be applied inflexibly (People v. Clauson (1969) 275 Cal.App.2d 699, 704), nor should they all be given equal weight (see, e.g., People v. Martinez (1984) 36 Cal.3d 816, 825; Cahill v. E.B. & A.L. Stone Co. (1914) 167 Cal. 126, 135).
In denying the motion for a new trial, the lower court found that the evidence was cumulative, it was not probable that it would lead to a different result, and defendant had not exercised due diligence. The first of these findings by the trial court, that new evidence would be cumulative, is difficult to understand, and respondent does not attempt to justify or explain it. The term “cumulative” may be taken on its face, referring to evidence which simply echoes prior testimony without adding anything. (See, e.g., People v. Shoals (1992) 8 Cal.App.4th 475, 488.) The trial court stated that the new evidence in this case would be cumulative because, without appellant’s testimony, it was unlikely to change the jury’s mind. This reasoning does not bear on whether the evidence is cumulative. Since the defense offered no evidence in the case and Carrington’s testimony directly challenged evidence presented by the prosecution, it is difficult to discern how it could be viewed as cumulative.
Respondent also does not attempt to argue that due diligence was lacking. The requirement of due diligence “serves ‘a public policy which demands that a litigant exhaust every reasonable effort to produce at his trial all existing evidence in his own behalf, to the end that the litigation may be concluded.’ “ (People v. Martinez, supra, 36 Cal.3d at p. 825, quoting People v. Clauson (1969) 275 Cal.App.2d 699, 704.) In People v. Sanders (1995) 11 Cal.4th 475, 523-525, the California Supreme Court found due diligence lacking when a would-be witness was subpoenaed after the trial had begun, efforts to contact her were limited to a single phone call to an old work number and several visits to her former residence, and no effort was made to contact relatives, friends, or coworkers.
In the present case, efforts to locate Carrington were limited to repeated phone calls to a prepaid cellular number that had lapsed. Defense counsel failed to obtain either an address or a last name for Carrington, though the prosecutor was able to obtain both from appellant’s arrest report. Even if appellant refused to cooperate, as the trial judge speculated, defense counsel had access to her last name and address in the court documents and could have visited her address and spoken with her grandmother or another family member to determine how to reach her.
However, a lack of due diligence is not, in and of itself, fatal. A defendant should not suffer criminal penalties as a way of punishing defense counsel’s lack of diligence. (People v. Martinez, supra, 36 Cal.3d at p. 825.) The fundamental purpose of such procedural processes is to ascertain guilt and innocence. (Ibid.) Several California cases “suggest that the standard of due diligence may be relaxed when the newly discovered evidence would probably lead to a different result on retrial.” (Ibid.) None suggest the converse. (Ibid.) Thus, while due diligence must be taken into account as one of the factors to consider in granting a new trial, standing alone, the lack thereof will not suffice to bar a new trial.
In his reply brief, appellant asks us to equate a lack of diligence to ineffective assistance of counsel. “ ‘[P]oints raised in [a] reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]’ ” (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) No such reason is offered here. In any event, characterizing the issue as ineffective assistance of counsel would not affect the outcome.
A lack of due diligence may indicate that counsel was constitutionally inadequate. (People v. Martinez, supra, 36 Cal.3d at p. 825.) The two-step test for determining ineffective assistance of counsel considers whether “ ‘ “counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates” ’ [citations], ” and whether “ ‘it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings.’ [Citations.]” (People v. Dyer, supra, 45 Cal.3d at p. 53.)
In the context of a motion for new trial on the basis of new evidence, an ineffective assistance of counsel claim should result in no different outcome than the ruling on the new trial motion. If a lack of due diligence resulted in a failure to unearth evidence that was likely to change the outcome of the trial, the motion for a new trial should have been granted. (See People v. Martinez, supra, 36 Cal.3d at pp. 825-826.) And if the evidence was not likely to change the outcome of the trial, an ineffective assistance of counsel claim would not prevail for want of a showing of prejudice. (See People v. Dyer, supra, 45 Cal.3d at p. 53.)
The new evidence in this case was unlikely to lead to a new outcome. A motion for new trial based on new evidence should be granted when the new evidence “contradicts the strongest evidence introduced against the defendant.” (See, e.g., People v. Martinez, supra, 36 Cal.3d at p. 823; People v. Williams, supra, 57 Cal.2d at pp. 274-275.) “ ‘[E]vidence which merely impeaches a witness is not significant enough to make a different result probable....’ [Citation.]” (People v. Green (1982) 130 Cal.App.3d 1, 11.) “ ‘[T]he trial court may consider the credibility as well as materiality of the evidence in its determination....’ [Citation.]” (People v. Delgado, supra, 5 Cal.4th at p. 329.) Generally, “the question of weight and credibility to be attached to [affidavits in support of the motion is] for the trial judge.” (People v. Jefferson (1956) 47 Cal.2d 438, 446.) The likelihood of new evidence changing the outcome is given greater weight than other factors in determining a new trial motion. Both due diligence and cumulation may be overcome so long as the new evidence would probably lead to a different result. (See People v. Shepherd (1936) 14 Cal.App.2d 513, 518; People v. Martinez, supra, 36 Cal.3d at p. 825.) Ultimately, the primary question is whether the absence of the evidence in question prejudiced the outcome of the trial. (People v. Shoals, supra, 8 Cal.App.4th at p. 488.) In this case, it did not.
Carrington’s affidavit stated that appellant entered the club alone, departed alone 30 to 45 minutes later, and accompanied her to her grandmother’s house. This new evidence had no relation to the positive description and identification of appellant by the complaining witness. Of the evidence presented at trial, the new evidence would have contradicted only evidence that appellant and the Black woman entered the Oaks Club together. This evidence was established by two different sources at trial: Officer Giddings in his testimony regarding the video footage, and LaRosa in testimony pertaining to the report that he drafted after watching the video footage. Appellant did not dispute evidence that he and the Black woman spoke to each other near the bathrooms shortly before both departed. Thus, there is no contradiction of the evidence that appellant and the Black woman interacted. Furthermore, Carrington’s credibility was questionable because she could be impeached due to her relationship with appellant. Finally, the witness’s testimony conflicted with appellant’s statements in his probation report. Carrington stated that she remained in the car while appellant entered the Oaks Club because she was under age. However, in his probation report, appellant stated that he spoke to the Black woman near the bathroom because he did not want his girlfriend to see him talking to her at the bar, an impossibility if the girlfriend were waiting in the car. Nor does the affidavit mention that appellant met the Black woman outside the Oaks Club before he entered, as he stated in the probation report.
Appellant contends that the identification procedures used by the police officers were suggestive, casting doubt on whether appellant was in fact the perpetrator. The court ruled that the procedures were not unduly suggestive and that the evidence had been adequately corroborated by other sources when it denied appellant’s section 1118.1 motion. Appellant has not directly challenged this ruling on appeal. As counsels’ arguments to the jury addressed the reliability of the identifications at length, the jury also had the opportunity to consider this issue at trial, and found appellant guilty nonetheless. The new evidence, which was the basis of the motion for a new trial, does not bear on the positive identification of appellant by the complaining witness.
The trial court was well within its discretion in denying appellant’s motion for a new trial because the new evidence would not have changed the outcome of the case upon a new trial.
The judgment of the trial court is affirmed.
We concur: Haerle, J.Lambden, J.