Opinion
A156883
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51812379)
Defendant Rigoberto Brown appeals a judgment entered upon a jury verdict finding him guilty of first-degree burglary, a felony. (Pen. Code, § 459.) The trial court placed him on probation for three years. He contends his statement to police officers was involuntary and should not have been admitted, that there was insufficient foundation for surveillance recordings and photographs, and that the prosecutor committed misconduct. We shall affirm the judgment.
BACKGROUND
On Sunday, March 4, 2018, 19-year-old defendant and a girl went to the house of his friend, James, and visited with James in his room. James's father, Stephen, returned home and greeted defendant and the girl; the girl was hesitant to make eye contact with him. Shortly thereafter, defendant and the girl left the house. That evening, Stephen noticed that James's bedroom window was unlocked and slightly open, which was unusual at that time of year. Stephen locked the window.
Intending no disrespect, we refer to the members of James's family by their first names.
The next day, Stephen left for work around 6:00 in the morning. He returned home in the early afternoon, because his wife had called and told him that items were missing from James's room. The missing items were a laptop computer, a turntable, a microphone, a PlayStation, Timberland boots, a pair of shoes, and a pillowcase. A deputy sheriff who came to the home found no signs of forced entry.
Later that afternoon, a deputy sheriff was dispatched to a location about a mile from James's house because of a report that two non-residents were hanging around a pool. He saw defendant and a girl who identified herself as R.R. Both had backpacks, and they had other items, including a laptop in a cream-colored cloth case with a star or flower pattern. The pattern of the case matched that of the missing pillowcase. It was on a table, closer to R.R. than to defendant. They told the deputy that they would wait somewhere else, and as they left, R.R. picked the laptop off the table.
Photographs from a nearby motion-activated surveillance camera showed defendant and a girl, later identified as R.R., walking toward James's home at 9:49 a.m. and walking away from the home at 9:52 a.m. They were wearing backpacks, and R.R. was wearing gloves. As they walked away from the home, they were heading toward a trail; a person could leave the trail and approach the house from another direction out of view of the camera. The camera showed James's mother's car driving away from the home at 10:50 a.m.
On March 27, 2018, defendant spoke with Detective Michael Marshall, a Contra Costa County deputy sheriff, and another detective. The interview took place in Sacramento, inside the Sacramento County Jail, after defendant was arrested. Defendant had Timberland boots in his possession.
After being informed of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), defendant said that R.R.'s family—with whom he was living—was "having troubles with rent," and that R.R.'s father said they would "get kicked out" unless they "c[a]me up with some money." He said that he and R.R. went to Lafayette, waited for James's mother to leave, went in through an unlocked side door, and took a computer, a PlayStation, and a microphone. Afterward, they called R.R.'s father and left. The items were pawned in Sacramento.
After speaking with R.R. and her father, Marshall recovered the missing electronic items from two pawn shops.
DISCUSSION
I. Admission of Defendant's Statements
Defendant's first contention is that his statements to the interrogating officers were involuntary and hence inadmissible.
A. Factual Background
Defendant told the officers he had never been arrested before. Detective Marshall advised defendant of his Miranda rights, and defendant said he understood them. The officers asked defendant about his trip to Lafayette, and he said he had grown up in Lafayette and he had gone there with R.R. that day to visit friends and show her where he had grown up. Marshall told defendant R.R. was in juvenile hall and the officers had spoken with her. Detective Ones then said, "[D]uring this time you said you were in Lafayette, um, something happened there. And it's not the crime of the century, and we want to handle this here. Down here. Lowest level possible, 'cuz first time in jail, you don't want to be jammed up on some stupid stuff. Okay? We want to handle what we're investigating at this level, down here, instead of having to go up here, you're still young, you got a future in front of you." (Italics added.) Marshall then told him, "We, we don't want it to escalate because once, once it's way up here, the chances of you going on and being successful, getting construction, getting a job, all that, we, we want that. That, that's our end goal for you. Is for you to get over this speed bump and carry on with your life. But, we need help from you." "[W]e're here now, and we wanna work with you. Okay? Be able to get all this problem behind us now, so that you don't have to have someone pick you up here and bring you out over—if you come to Contra Costa County you're gonna be there a little bit longer, and I personally, I like when people can help me out. People help me out . . ." Defendant said, "So, if I lie, then I get picked up over here or something?" and the officers told him lying would not help him and they were "giving you your chance." Ones said, "If you handle it here man, we don't have to go through all this BS and get you jammed up in all this kinda stuff," and Marshall encouraged defendant to be honest and said, "[I]f you're gonna lie to me, there's, there's nothing I, I can even try to do. 'Cuz I won't even talk to the DA in a nice tone, I'll tell them to throw the book. But, if you talk to me, and I say, hey, he was a good guy, he's made an honest mistake, whatever it may be, but—." Ones then suggested that defendant might have stolen the items because he needed food or housing, and said that with hard work, defendant would not find himself in that position again. Marshall followed up, "But we need you to work with us. Be honest," and defendant said they had been having problems with rent and admitted to the burglary.
Before trial, defendant moved to exclude his statement as involuntary. At the hearing on the motion, Marshall testified that he wore civilian clothes during the interview and spoke in a conversational, friendly tone.
We have listened to a recording of the interview, which is consistent with Marshall's characterization of his tone. --------
After listening to the recording of the interview, the trial court denied the motion to exclude the statement. In doing so, it explained that the issue was "really borderline and unnecessarily so," and that one of the detectives "keeps going right up to the line of what's okay and what's not okay," but that it could nevertheless not conclude in the totality of the circumstances that defendant's statements were coerced. Asked to explain its ruling further, the court said that the statements that "came closer to that line . . . [were] not completed." As an example, the court pointed to one of the detectives saying he did not want the matter to escalate because once "it's way up here" the chances of defendant "going on and being successful, getting construction, getting a job, all of that, we want that. That's our end goal for you. It's up to you to get over this speed bump and carry on with your life, but we need help from you." The court said that statement could be taken a number of different ways, including encouraging defendant not to let this event define his life, and that the officers did not explicitly say that it would be a "smaller speed bump" if defendant spoke to them. Similarly, the court said, when one of the detectives referred to defendant "be[ing] . . . there a little bit longer" if he went to "Contra Costa," he did not finish his sentence and made no improper promise. Similarly, the court noted, Marshall never finished the sentence, "But, if you talk to me, and I say, hey, he was a good guy, he's made an honest mistake, whatever it may be." The trial court therefore could not conclude the detectives clearly conveyed a message about the consequences of not speaking to them.
B. Analysis
The state and federal Constitutions prevent the prosecution from introducing evidence of a defendant's involuntary confession. (People v. Perez (2016) 243 Cal.App.4th 863, 871.) " 'In general, a confession is considered voluntary "if the accused's decision to speak is entirely 'self-motivated' [citation], i.e., if he freely and voluntarily chooses to speak without 'any form of compulsion or promise of reward. . . .' [Citation.]" [Citation] However, where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.' " (People v. Tully (2012) 54 Cal.4th 952, 985.) To determine whether the promise of leniency was expressly made or implied, and whether the promise motivated the accused to speak, the court examines all the surrounding circumstances, including the details of the questioning and the characteristics of the accused. (Id. at p. 986.) Relevant considerations include police coercion, the length of the questioning, its location, its continuity, and the defendant's maturity and education. (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).)
Defendant argues his interrogation violated these principles. In particular, he contends the officers made an implied promise of leniency by saying they wanted to handle the matter "down here," i.e., in Sacramento, and at the "[l]owest level," which he interprets to mean the detectives would handle the matter themselves in Sacramento, rather than transferring custody to Contra Costa County, if defendant talked to them. And, he points out as part of the totality of the circumstances, he was young, he had never been arrested before, and he did not expressly waive his Miranda rights.
Although we agree with the trial court and the Attorney General that it is a close issue, we likewise conclude defendant's statement was not involuntary. Defendant was advised of his Miranda rights and indicated he understood them. The interrogation was not prolonged. Defendant made his incriminating statements only 20 minutes after it began, much of the preceding time having been taken up with background information and pleasantries, and defendant had already acknowledged being in Lafayette with R.R. (See People v. Carrington (2009) 47 Cal.4th 145, 175 [prolonged interrogation may be coercive under some circumstances].) The officers did not speak in an aggressive or intimidating manner. (See People v. Jones (2017) 7 Cal.App.5th 787, 812.) They made no express promises of leniency, and in context, it appears defendant understood their words as encouragement not to lie—after he had already begun telling them about his trip to Lafayette—rather than as encouragement to give up his right to remain silent. And it is well-established that it is not improper to advise an accused that it would be better to tell the truth, absent improper threats or promises. (Williams, supra, 49 Cal.4th at p. 444 [" 'No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence' "]; People v. Holloway (2004) 33 Cal.4th 96, 115; Jones, at p. 812.) Finally, it seems clear from the entirety of the interview that defendant's primary reason for being honest with the investigators was that he is a man of conscience, who felt guilty about having stolen from his friend when he thought theft was the only way to avoid homelessness. In the circumstances, the trial court did not err in admitting defendant's statements.
II. Admission of Surveillance Photographs
Defendant contends the trial court should not have admitted the surveillance camera photographs and recordings because there was insufficient foundation for the accuracy of the date and time stamps, which placed him near the victims' home before the burglary. We review a trial court's ruling on authentication for abuse of discretion, disturbing a ruling only if the trial court " 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith); People v. Rodriguez (2017) 16 Cal.App.5th 355, 373 (Rodriguez).)
A. Trial Proceedings
At trial, Officer Marshall testified that the City of Lafayette maintained motion-activated surveillance cameras, that he was familiar with how the cameras recorded, that he had used them at least 100 times in his career, and that he had found the cameras and their time stamps to be accurate and reliable. One employee had the job of maintaining the cameras, making sure the batteries and chips were working, and checking the time for accuracy. Officers commonly checked with dispatch to compare the correct time with the time on the cameras. Marshall had found the time stamps produced by the surveillance cameras to be accurate in the past, when reviewing photos from cameras after incidents in which he was physically present.
Defendant objected to the admission of the photographs on the ground there was inadequate foundation that the time and date stamps for the camera that produced them were accurate at the time the photographs were taken. The court ruled the photographs were inadmissible unless the prosecution laid a further foundation.
The prosecution then called Nickolas Ashmore, an employee of the Lafayette Police Department whose job it was to maintain the surveillance cameras. He had held his position for about four months, since November 2018, several months after the crime at issue here. Ashmore was familiar with the camera that captured the images of defendant, R.R., and James's mother. He testified that it was motion activated and took photographs automatically, and that the date and time were imprinted on the images contemporaneously. The images were stored on a card in the camera, which he maintained or collected as part of his duties. The surveillance cameras were inspected regularly and calibrated as necessary; the camera in question was inspected and maintained twice a week. He checked the dates and times each time he went to a camera. He had not had to recalibrate the camera in question during his time on the job.
The trial court admitted the photographs into evidence.
B. Analysis
A writing, including a photograph, must be authenticated before it is admitted in evidence. (Goldsmith, supra, 59 Cal.4th at p. 266; Evid. Code, §§ 250, 1401; all further statutory references are to this code.) Authentication is defined as "(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (§ 1400.) "Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (Goldsmith, at p. 267.)
A different panel of this division has explained: "In making the initial authenticity determination, the court need only conclude that a prima facie showing has been made that the photograph is an accurate representation of what it purports to depict. The ultimate determination of the authenticity of the evidence is for the trier of fact, who must consider any rebuttal evidence and balance it against the authenticating evidence in order to arrive at a final determination on whether the photograph, in fact, is authentic." (In re K.B. (2015) 238 Cal.App.4th 989, 997.)
Goldsmith is particularly instructive. The question there was whether the trial court properly admitted photographs and a video generated by a red-light traffic camera known as an automatic traffic enforcement system (ATES), which showed the defendant had failed to stop at a red light. (Goldsmith, supra, 59 Cal.4th at pp. 262, 264.) At a trial before a traffic commissioner, a police department employee testified that he had six years of experience in red-light camera enforcement; that the ATES system was operated by the police department and maintained by an outside company; that the system operated independently and recorded events at an intersection after a traffic signal turned red; that it was stored on the hard disc of a computer at the scene; and that the computerized information was retrieved throughout the day and reviewed by a police officer. (Id. at p. 264.) The photos in question showed the traffic light had been red for 0.27 seconds before the defendant entered the intersection, and that 0.66 seconds later, the vehicle was in the intersection while the light remained red. The photos also showed the light had been yellow for four seconds. When challenged on the characterization of the yellow light phase as being four seconds, the officer testified he inspected the traffic signal monthly to ensure the yellow light timing complied with minimum state standards; the inspections before and after the traffic incident showed average yellow light times of 4.11 and 4.03 seconds respectively. (Id. at p. 265.)
Our Supreme Court held the ATES evidence was adequately authenticated and that the trial court did not abuse its discretion in admitting it. (Goldsmith, supra, 59 Cal.4th at pp. 266-273.) It relied in part on section 1553, which provides that " '[a] printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent," and section 1252, which provides a similar presumption for printed representations of computer information. (Goldsmith, at pp. 268-269.) These presumptions "support[ed] a finding, in the absence of contrary evidence, that the printed versions of ATES images and data are accurate representations of the images and data stored in the ATES equipment." (Id. at p. 269.)
In different contexts, other cases have reached similar conclusions. Thus, in upholding the admission of a report of global positioning system data that showed the defendant left a county at certain dates and times, the court in Rodriguez, supra, 16 Cal.App.5th at pp. 358, 374-375, noted that it was " 'settled [that] computer systems that automatically record data in real time, especially on government-maintained computers, are presumed to be accurate. Thus, a witness with the general knowledge of an automated system may testify to his or her use of the system and that he or she has downloaded the computer information to produce the recording. No elaborate showing of the accuracy of the recorded data is required. Courts in California have not required "testimony regarding the ' "acceptability, accuracy, maintenance, and reliability of . . . computer hardware and software" ' in similar situations." ' " That is because any mistakes may be probed on cross-examination, and they do not affect the admissibility of the recording of the data itself. (Ibid., citing People v. Dawkins (2014) 230 Cal.App.4th 991, 1003 [audio recording of 911 call].) Similarly, in People v. Peyton (2014) 229 Cal.App.4th 1063, 1075, the court held that ATM photos were properly admitted where the testifying bank employee knew how the ATM system worked, how to extract ATM photos, and how the bank maintained photos.
Defendant contends the prosecution's showing of the authenticity of the date and time stamps was " 'too weak to support a favorable determination by the jury.' " (People v. Lucas (1995) 12 Cal.4th 415, 466 [question of "whether the foundational evidence is sufficiently substantial is a matter within the court's discretion"].) In light of the authorities we have discussed, we cannot agree with defendant. Officer Marshall had extensive experience with the cameras and testified to their accuracy and the police department's procedures for checking the time stamps and maintaining the cameras. And although Ashmore began his duties after the date at issue here, he provided additional support for the regular procedures for maintaining the integrity of the time stamps and the reliability of the particular camera that captured the images. The trial court was well within its discretion to admit the photographs.
III. Prosecutorial Misconduct
Defendant contends his conviction should be reversed because the prosecutor committed misconduct during her closing argument and his counsel rendered ineffective assistance by failing to raise proper objections.
A. Legal Principles
A prosecutor violates the federal Constitution when her conduct "infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) Under state law, "the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury" is misconduct. (Ibid.) When, as here, a defendant's challenge is based on comments made before the jury, "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Ibid.)
A defendant may generally not complain on appeal of prosecutorial misconduct unless the defendant objected to the conduct in a timely manner on the same ground and asked the court to admonish the jury to disregard the impropriety. (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno); People v. Ayala (2000) 23 Cal.4th 225, 284.) In that case, a claim is reviewable only if an admonition would not have cured the harm. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1161 (Cowan.)
If a claim of prosecutorial misconduct is forfeited by counsel's failure to object and request an admonition, a defendant may argue on appeal that he did not receive effective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966.) The defendant bears the burden on direct appeal to show that (1) counsel's performance was deficient, that is, that it "fell below an objective standard of reasonableness under prevailing professional norms," and (2) the deficiencies caused him prejudice, that is, " 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (Centeno, supra, 60 Cal.4th at pp. 674, 676.) In evaluating prejudice from improper argument, we bear in mind that "arguments of counsel 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates' . . . 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." ' " (Id. at p. 676.)
B. The Prosecutor's Comments
Defendant complains on appeal of three comments the prosecutor made to the jury. First, after reviewing the evidence and reminding the jury she had the burden of proof beyond a reasonable doubt, she went on: "And I submit to you that this overwhelming amount of evidence meets that burden. I don't need to call every witness in this case, every single person who lived at that home, every friend the defendant said he went and saw that day when he was in Lafayette. His girlfriend. Every single possible witness. I didn't call them because I didn't need to. I'm not going [to] waste your time parading in witnesses that are just going to say the same thing." Defense counsel objected without stating her grounds, and the trial court sustained the objection. Defendant contends this comment invited the jury to speculate about evidence never presented at trial and in effect made the prosecutor an "unsworn witness" by suggesting the prosecutor had knowledge of testimony other people might have given if called. (See People v. Bolton (1979) 23 Cal.3d 208, 212-215, & fn. 4 [improper for prosecutor to invite jury to speculate about evidence not presented at trial]; People v. Hall (2000) 82 Cal.App.4th 813, 816-817 (Hall) [improper for prosecutor to tell jury absent witness's testimony would have been repetitive].)
Second, as she approached the close of her argument, the prosecutor told the jury: "We talked about my burden on voir dire. We talked about the tendency to think, because a case goes to trial, there's got to be some missing piece. There's got to be some issue." Defense counsel raised an objection, which the trial court overruled. Defendant contends that in so arguing, the prosecutor improperly sought to penalize him for exercising his right to go to trial. (See Burns v. Gammon (8th Cir. 1999) 173 F.3d 1089, 1095-1096 [improper for prosecutor to invite jury to punish petitioner for taking case to trial].)
Third, the prosecutor immediately went on: "I have proven my case beyond a reasonable doubt. In fact, I have over proven it for you. And so now that presumption of innocence that we focused so much on, that falls away. The defendant is no longer presumed innocent, because of all of the evidence." This argument, defendant contends, was misconduct because it violated the rule that "[t]he presumption of innocence continues during the taking of testimony and during jury deliberations until the jury reaches a verdict." (Cowan, supra, 8 Cal.App.5th at p. 1159 [misconduct for prosecutor to tell jury presumption of innocence existed only when charges were read, and presumption was " 'gone' " thereafter].)
C. Analysis
By failing to ask the court to admonish the jury to disregard the first of these comments after his objection was sustained or to raise any objection to the third, defendant has forfeited his claims of prosecutorial misconduct as to these remarks. (See Centeno, supra, 60 Cal.4th at p. 674; cf. Hall, supra, 82 Cal.App.4th at pp. 816-817 [no forfeiture in failing to seek curative admonition after trial court overruled objection to prosecutor's argument].) Recognizing this problem, he argues his counsel rendered ineffective assistance.
Defendant has not shown either that the prosecutor committed misconduct or, if there was misconduct, that his counsel made unprofessional errors that caused him prejudice. (See Centeno, supra, 60 Cal.4th at pp. 674, 676.) The trial court sustained defendant's objection to the reference to absent witnesses; although there was no admonition, the prosecutor immediately went on to discuss the evidence that was presented at trial. There is no basis to think the jury was swayed by this passing reference or applied this first comment in an objectionable fashion, especially because the trial court instructed the jury that it should decide the facts "based only on the evidence that has been presented to you in this trial" and that statements the attorneys made in closing argument were not evidence. We presume the jury followed this instruction. (See Centeno, at pp. 674, 676.)
As to the prosecutor's statement that there was a "tendency to think because a case goes to trial, there's got to be some missing piece[,] . . . ," we see no likelihood that the jury took it as an invitation to view defendant unfavorably for exercising his right to trial.
Nor does the prosecutor's statement that defendant was no longer presumed innocent "because of all of the evidence" support a finding of ineffective assistance of counsel. In context, the prosecutor appeared to be arguing merely that she had met her burden by presenting compelling evidence of defendant's guilt. In this respect the case is similar to People v. Booker (2011) 51 Cal.4th 141, 184, in which a prosecutor told the jury that when it came to the conclusion a person was guilty, the presumption of innocence was gone, and that " '[o]nce the evidence convinces you he is no longer innocent, that presumption vanishes.' " In finding no misconduct, our high court stated, "Although we do not condone statements that appear to shift the burden of proof onto a defendant (as a defendant is entitled to the presumption of innocence until the contrary is found by the jury), the prosecutor here simply argued the jury should return a verdict in his favor based on the state of the evidence presented." (Booker, at p. 185; accord, People v. Jimenez (2019) 35 Cal.App.5th 373, 385 [no misconduct in prosecutor saying that defendant was no longer presumed innocent where statement was preceded by several statements outlining the strength of the evidence and followed by statement that defendant had been proven guilty].) Defense counsel could reasonably have elected not to object to the statement and request an admonition on that ground. Moreover, the trial court instructed the jury that defendant was presumed to be innocent, that the People must prove his guilt beyond a reasonable doubt; and that it must consider the evidence impartially in deciding whether the People had proved their case. We see no likelihood the jury was confused about the prosecution's burden as it deliberated.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.