Opinion
E066204
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ALEX DELEON, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Alana Butler and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1402026) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland, Alana Butler and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Vincent Deleon, stabbed and robbed K.H. while she was standing with her child by her car in a grocery store parking lot. When a bystander pursued defendant, who fled with K.H.'s purse, defendant stabbed the good Samaritan to death.
Defendant appeals from the judgment entered following jury convictions for murder (Pen. Code, § 187, subd. (a); count 1) and attempted murder (§§ 187, 664; count 2). As to count 1, the jury also found true a special-circumstance allegation. (§ 190.2, subd. (a)(17).) As to counts 1 and 2, the jury further found true the allegation defendant used a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) Also as to count 2, the jury found true the allegation that defendant inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The court sentenced defendant to life in prison without parole, plus 12 consecutive years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
We refer to section 190.2, subdivision (a)(17) herein as section 190.2(a)(17).
Defendant contends the robbery-felony-murder special circumstance, imposed under section 190.2(a)(17), is unconstitutional, because there is no distinction between it and first degree felony murder. Defendant further contends his trial attorney provided ineffective assistance by (1) failing to object to unauthenticated videos, (2) failing to object to Detective Hart's narrative testimony provided while showing the jury a surveillance video, and (3) proceeding with the trial when unprepared. Defendant argues that the cumulative impact of these errors deprived him of his rights to due process and a fair trial.
We conclude the robbery-felony-murder special circumstance is not unconstitutional, and defendant has not demonstrated ineffective assistance of counsel (IAC). We therefore reject defendant's cumulative error objection, and affirm the judgment.
II
FACTS
On April 27, 2014, about 9:00 p.m., K.H. returned to her car from the Stater Bros. grocery store. K.H.'s two-year-old daughter was at her side, sitting in a shopping cart. As K.H. stood next to her car trunk removing her car keys from her purse, defendant came up from behind, slammed her head on the trunk, and attempted to grab K.H.'s purse. She turned around and noticed defendant was wearing a black hooded sweater and jeans. K.H. struggled with defendant as she attempted to retain her purse. K.H. felt defendant strike her in the right and left breast area and in the head. K.H. pulled defendant to the ground and kicked him in the face. When K.H. turned to check on her daughter, defendant ran off with her purse.
Troy Cansler, a bystander, approached K.H. and asked if she was okay and if defendant had taken her purse. When Cansler learned defendant had taken K.H.'s purse, he said, "F___ that," and ran after defendant. K.H. saw Cansler catch up with defendant and fall to the ground with defendant at the end of the parking lot.
Two witnesses to the scuffle between Cansler and defendant flagged down Matthew Campbell, who was passing by in an ambulance. The bystanders told Campbell someone had been stabbed and was lying in the street. Campbell found Cansler in the street, bleeding from his chest and taking his last couple of breaths. Campbell attempted to render first aid but Cansler had stopped breathing. Cansler died from stab wounds to the chest and upper back, in which defendant's knife penetrated Cansler's heart.
Meanwhile, K.H. realized she was bleeding from having been stabbed three times in the chest. After paramedics treated Cansler, they transported K.H. to the hospital. While K.H. was on pain medication, officers interviewed her and showed her a six-pack photographic lineup at the hospital. K.H. was unable to identify defendant as her assailant but later identified him in court and in a video.
Defendant's girlfriend, C.Q., testified that during the evening of April 27, 2014, defendant and C.Q. went to the Whiskey Business bar. Shortly before leaving for the bar, C.Q. noticed defendant fixing his knife. During C.Q.'s testimony, she was shown the knife used in the stabbings of Cansler and K.H. C.Q. identified the knife as defendant's knife. C.Q. testified that before going to the bar, defendant drank a 24-ounce drink called "Juice." At the Whiskey Business bar, defendant and C.Q. met several young women, drank, and played pool.
At some point, defendant told C.Q. he would be right back. C.Q. saw defendant return about a half hour later. He appeared to be out of breath and breathing hard. He asked for a glass of water. C.Q. noticed defendant had a new scratch under his left eye, which appeared quite red and fresh. C.Q. then went to the restroom. When she returned, defendant was in handcuffs.
A.K., who was at the Whiskey Business bar with friends the night of the charged crimes, testified she met C.Q. and defendant at the bar. Defendant was wearing a dark, zip-up hoodie. A.K. identified defendant in court and in a video. A.K. testified that, while talking to defendant and others about Second Amendment rights and protecting oneself with a knife, defendant pulled out a knife and said, "like this?" During A.K.'s testimony, she was shown a picture of a knife. A.K. said the knife in the photograph looked like the knife defendant had at the bar. At some point during the evening, A.K. looked for defendant at the bar, including asking if he was in the bathroom. A.K. could not find him. When she saw him again 10 or 15 minutes later, he was disheveled, out of breath, and breathing heavily. He asked for water and said he wanted to talk to C.Q. Defendant had taken off his jacket and had it over his arm. The side of his eye was red, as if he had been hit recently. Minutes after defendant returned to the bar, a man ran into the bar and said someone had been stabbed at Stater Bros. and the perpetrator had run into the bar. C.Q. went outside the bar and told the police to come inside.
At 9:37 p.m., on the night of the charged crimes, Sergeant Anolin from the San Bernardino County Sheriff's Department, was dispatched to the crime scene, where Cansler was lying on the sidewalk, in the vicinity of the Jack in the Box, Stater Bros., and Whiskey Business bar. Paramedics were treating Cansler but he was nonresponsive. Sergeant Anolin was told the perpetrator of the stabbing was inside the bar. K.H. was in front of Stater Bros. with fresh stab wounds. Her purse was found in the patio of the Whiskey Business bar on top of an awning near the back entrance.
Sergeant Anolin entered the patio at the Whiskey Business bar and handcuffed defendant. A black hooded sweatshirt was found on a stool in the patio area. Blood was on the sweatshirt. A knife was concealed in the sleeve of the jacket. Sergeant Anolin testified that, while he was placing defendant in handcuffs and conducting a patdown, defendant complied with his commands and appeared to understand what he was told. Defendant did not appear to be confused or unaware of his surroundings. Deputy Seratt, who assisted in apprehending defendant, also testified that defendant did not have any problem complying with his commands and answering questions.
Forensic testing of the blood on the black hooded jacket found on the patio, contained DNA from K.H. Forensic testing of the blood on the knife, found in the sleeve of the jacket, contained DNA from both Cansler and K.H. The electronic surveillance videos from Jack in the Box, Stater Bros., and the Whiskey Business bar, which were recorded the night of the charged crimes, were shown to the jury. At trial, C.Q. and A.K. identified the knife found in defendant's jacket at the Whiskey Business bar as the knife they saw in defendant's possession.
III
CONSTITUTIONALITY OF SPECIAL CIRCUMSTANCE
Defendant contends the robbery-felony-murder special circumstance, codified in section 190.2(a)(17), is unconstitutional because there is no "narrowing" or distinction between the special circumstance allegation and first degree robbery felony murder (§ 189). The robbery offense included in both the special circumstance and felony-murder conviction cannot be incidental. Defendant argues the special circumstance finding must therefore be vacated as unconstitutional, because section 190.2(a)(17) fails to narrow the class of defendants eligible for the special circumstance from the group of offenders who commit felony murder.
The California Supreme Court and Ninth Circuit Court of Appeals have repeatedly rejected constitutionality challenges to the section 190.2(a)(17) special circumstance. (People v. Enraca (2012) 53 Cal.4th 735, 769; People v. Williams (2010) 49 Cal.4th 405, 469; People v. Gamache (2010) 48 Cal.4th 347, 406.) We likewise reject defendant's contention the robbery felony-murder special circumstance finding under section 190.2(a)(17) is unconstitutional. The California Supreme Court concluded in Enraca, supra, at page 769, "California homicide law and the special circumstances listed in section 190.2 adequately narrow the class of murderers eligible for the death penalty. [Citations.] Specifically, the felony-murder special circumstance (§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the pool of those eligible for death." (Ibid.; see also Gamache, supra, at p. 406.)
The California Supreme Court likewise held in People v. Williams, supra, 49 Cal.4th at page 469, that "Section 190.2 is not impermissibly overbroad in violation of the Fifth, Sixth, Eighth, or Fourteenth Amendments to the federal Constitution. [Citation.] Specifically, the number of special circumstances is not so high as to fail to perform the constitutionally required narrowing function; the special circumstances are not overinclusive, either on their face or as interpreted by this court; and the felony-murder special circumstance is not invalid for failing to narrow meaningfully the class of persons eligible for the death penalty."
Defendant acknowledges the state and federal courts have rejected constitutionality challenges to the section 190.2(a)(17) special circumstance. Nevertheless, defendant urges this court to reconsider the issue, limited to the constitutionality of the robbery-felony-murder special circumstance. (§ 190.2(a)(17)(A).) Defendant argues his constitutional challenge has merit and should be considered because it has not been previously raised or considered by the courts. We disagree. Because defendant provides no new argument or legal developments warranting reexamination of prior case law, we need not reconsider the constitutionality of the robbery section 190.2(a)(17) special circumstance. (People v. Johnson (2016) 62 Cal.4th 600, 642.)
The court in People v. Andreasen (2013) 214 Cal.App.4th 70, explained the distinction between a felony-murder special circumstance and felony murder as follows: Felony murder requires that the defendant killed during the commission of a felony, while the felony-murder special circumstance "requires an additional showing that the intent to commit the felony was independent of the killing." (Id. at p. 80.) In other words, "the felony-murder special circumstance applies 'when the murder occurs during the commission of the felony, not when the felony occurs during the commission of a murder.'" (Id. at p. 81; People v. Mendoza (2000) 24 Cal.4th 130, 182.)
Robbery felony murder thus only requires that the defendant killed during the course of the underlying robbery, whereas the robbery-felony-murder special circumstance requires a showing that the defendant had an independent felonious purpose to commit robbery or intended to commit the robbery before or during the murder. (People v. Huggins (2006) 38 Cal.4th 175, 214-215; People v. Horning (2004) 34 Cal.4th 871, 907-908; Clark v. Brown (9th Cir. 2006) 450 F.3d 898, 914; Muhammed v. Castro (E.D. Cal. 2009) 2009 U.S. Dist. LEXIS 14850, p. 60, quoting Clark, supra, at p. 914.) Furthermore, even if the special circumstance duplicates one of the elements of the felony-murder crime, this does not make the special circumstance constitutionally infirm. (Lowenfield v. Phelps (1988) 484 U.S. 231, 246.)
We therefore reject defendant's constitutional challenge. To conclude otherwise would require this court to disregard a plethora of federal and California Supreme Court authority holding that section 190.2(a)(17) felony-murder special circumstance is constitutional, and require this court to carve out an exception in the instant case. This court, however, is bound by our high court's holding that section 190.2(a)(17) is constitutional. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Unless our high court revisits the issue or the Legislature amends the statute, or the United States Supreme Court decides otherwise, we hold defendant's section 190.2(a)(17) special circumstance is constitutional.
IV
IAC OBJECTIONS
Defendant contends his trial attorney failed to provide adequate representation by (1) failing to object to the prosecution not authenticating five videos shown to the jury, (2) failing to object to Detective Hart's narration testimony provided while the jury was shown video 5 (exhibit 124), and (3) being unprepared at trial.
A. IAC Law
In order to secure the reversal of a conviction based on ineffective representation of counsel, a defendant must show (1) his counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and (2) counsel's deficient performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The appellate court must presume counsel's conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel's tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674 (Lewis).)
Further, because it is inappropriate for a reviewing court to speculate about the tactical reasons for counsel's actions, when the reasons are not readily apparent in the record, the court will not reverse unless the record discloses no conceivable tactical purpose. (Lewis, supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for counsel's actions, a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) "'[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Harris (2008) 43 Cal.4th 1269, 1290, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
On August 23, 2017, defendant also filed a petition for a writ of habeas corpus in this court (In re Vincent Alex Deleon, E068962), alleging his trial attorney provided constitutionally deficient representation. On September 1, 2017, this court ordered defendant's habeas petition, as well as his motion to consolidate and request for judicial notice, be considered concurrently with the instant appeal for the sole purpose of determining whether an order to show cause should issue. We will resolve the habeas petition, motion to consolidate, and request for judicial notice by separate order in In re Vincent Alex Deleon, E068962. --------
B. Authentication of Surveillance Videos
Defendant asserts that five videos shown to the jury were not properly authenticated in compliance with Evidence Code sections 1400 and 1401. Defendant argues his trial attorney provided IAC by failing to object to the unauthenticated videos. Defendant also argues the videos were not in compliance with the secondary evidence rule (Evid. Code, §§ 1520-1523) because the videos were not the actual surveillance videos. Rather, they were a compilation of footage copied from the original surveillance videos, compiled by the prosecution on a computer and played for the jury.
During direct examination of four prosecution witnesses, the prosecutor showed the jury the five videos, while the witnesses testified regarding what was shown in the following videos.
Video 1 (Exhibit 113)
Video 1 (exhibit 113) was shown to the jury during K.H.'s direct examination. Before showing the video, the prosecutor told K.H. he was going to show a video and have her comment on it.
Video 2 (Exhibit 111)
The prosecutor next showed video 2 (exhibit 111) during C.Q.'s direct testimony. The prosecutor asked C.Q. if she recognized the person in the video. C.Q. identified the person as defendant.
Video 3 (Exhibit 117)
The prosecutor showed video 3 (exhibit 117) during A.K.'s direct testimony. She had been present at the Whiskey Business bar the night of the charged crimes. The prosecutor told A.K. he was going to show her video 3 and asked her to identify the area shown in the video and various people.
Video 4 (Exhibit 112)
The prosecutor showed video 4 (exhibit 112) also during A.K.'s direct testimony. The prosecutor asked her if she recognized anyone in the video, and requested her to describe what she was viewing in the video. A.K. identified herself in the video, C.Q., defendant, the Whiskey Business bar bartender, a short man, and an officer.
The prosecutor then showed video 4 during Sergeant Anolin's direct testimony. In response to the prosecutor's questions, Sergeant Anolin described what was shown in the video. Sergeant Anolin identified himself in the video handcuffing defendant. Deputy Seratt was also present in the video.
Video 5 (Exhibit 124)
The prosecutor showed video 5 (exhibit 124 in a loop) during Detective Hart's direct testimony. Video 5 consisted of a loop of surveillance recordings from the Whiskey Business bar, the Jack in the Box restaurant across the street from the Whiskey Business bar, and a nearby Stater Bros. Detective Hart described what was shown in video 5 and explained that the date and time stamps on video 5 were incorrect. Exhibit 123 provided a one-page statement of the corrected, actual time sequence for video 5.
1. Authentication
A writing must be relevant and authenticated before it may be received into evidence. (Evid. Code, § 1401, subd. (a); People v. Chism (2014) 58 Cal.4th 1266, 1303.) Video recordings are considered writings (Evid. Code, § 250; People v. Goldsmith (2014) 59 Cal.4th 258, 266). To authenticate a writing, the proponent must establish the writing is what "the proponent of the evidence claims it is." (Evid. Code, § 1400, subd. (a).) This requires the proponent to present "sufficient evidence for a trier of fact to find that the writing is what it purports to be." (Goldsmith, supra, at p. 267.) "A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted." (Ibid.) The proponent of a writing or secondary evidence of a writing bears the burden of establishing that such evidence is a fair and accurate representation of what is depicted in the writing. (Evid. Code, §§ 1400- 1401, 1520-1523; Goldsmith, supra, at p. 266; People v. Panah (2005) 35 Cal.4th 395, 475.)
When establishing a video recording is a fair and accurate representation of what it depicts, the "foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location." (People v. Goldsmith, supra, 59 Cal.4th at p. 268.) Otherwise, requiring that a witness testify to personal observation of every event shown on a surveillance camera video recording would defeat the purpose of such surveillance cameras, which often film what no witness observes.
Defendant argues the prosecution failed to authenticate the video recordings. But "'[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Harris, supra, 43 Cal.4th at p. 1290, quoting People v. Hillhouse, supra, 27 Cal.4th at p. 502.) Here, there was no testimony that the witnesses testifying when the videos were shown personally observed everything that was depicted in the videos or made the video recordings or were present during the entire time the video recordings were being made. Defendant further argues that a reasonably competent attorney would have objected to the videos on the grounds they were not authenticated. Authentication would have assured the videos were not altered in any way.
It is unclear why defense counsel did not insist that the prosecutor authenticate the videos. Nevertheless, such failure to insist on authentication does not constitute IAC because it was reasonable for defense counsel not to do so. It is highly unlikely that the videos would have been excluded had defense counsel demanded the prosecutor authenticate the videos. There is no evidence the videos were fabricated or altered in any material way.
Furthermore, defense counsel may have had a tactical reason not to object, such as concluding that objecting would not have made any difference in the court ultimately admitting into evidence the videos. In addition, defense counsel may have decided that, tactically, it was not beneficial to object to the authenticity of each video because doing so would have likely prompted the prosecutor to establish a strong foundation establishing the reliability of the videos, and focus the jury's attention on the adverse video evidence and witness testimony discussing the videos. Defense counsel could have concluded the prosecution could have authenticated the videos by calling witnesses from the entities that provided the videos. It is likely there would have been little difficulty in authenticating the videos by having witnesses from the Whiskey Business bar, Stater Bros., and Jack in the Box testify. "'It is well settled that the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is legally sufficient foundation for its admission into evidence.'" (Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440, fn. 5, quoting People v. Bowley (1963) 59 Cal.2d 855, 859.)
In the instant case, there is no evidence the videos were materially distorted, other than that the coloring in the videos was inaccurate, which Detective Hart explained was likely caused by overexposure or use of infrared camera technology. It is unlikely that requiring the prosecution to authenticate the videos would have made any difference, since the court was already aware of the color inaccuracies and nevertheless permitted the videos. Defense counsel most likely concluded it was not advantageous to delay the trial by requiring the prosecution to authenticate the five videos, when there was a high probability the videos would have remained admissible.
Because it is inappropriate for a reviewing court to speculate about the tactical reasons for counsel's actions, when the reasons are not readily apparent in the record, the court will not reverse unless the record discloses no conceivable tactical purpose. (Lewis, supra, 25 Cal.4th at pp. 674-675.) Here, there were tactical reasons for defense counsel not objecting to the unauthenticated videos, and the record sheds no light on the reasons for counsel's actions. We further reject defendant's IAC challenge to the video evidence because defense counsel's failure to object was not prejudicial.
2. Secondary Evidence
Defendant contends the trial court abused its discretion in allowing the videos to be shown to the jury because the videos were not the original videos and thus violated the secondary evidence rule, also known as the best evidence rule. Evidence Code section 1521, known as the "Secondary Evidence Rule," provides: "(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: [¶] (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. [¶] (2) Admission of the secondary evidence would be unfair. [¶] (b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing). [¶] (c) Nothing in this section excuses compliance with Section 1401 (authentication)." Thus, under Evidence Code section 1521, subdivision (a)(2), secondary evidence may not be used to prove the contents of a writing if admission of the evidence would be unfair. Again, "writing" includes every means of recording tangible things, including video recordings. (Evid. Code, § 250; People v. Panah, supra, 35 Cal.4th at p. 475.)
In People v. Panah, supra, 35 Cal.4th at page 475, the court explained: "The purpose of the best evidence rule is 'to minimize the possibilities of misinterpretation of writings by requiring the production of the original writings themselves, if available.' [Citation.] Therefore, '[t]he best evidence rule applies only when the contents of a writing are at issue.' [Citation.] Conversely, '[u]nless the content is in issue the best evidence rule does not come into play.' [Citation.] Where no dispute exists regarding the accuracy of the evidence received in lieu of the original writing, any error in admitting such evidence is harmless."
Here, there is no evidence in the record showing a dispute existed regarding the accuracy of the videos shown at defendant's trial in lieu of the original videos. It therefore is reasonable to conclude defense counsel did not object to the videos based on the secondary evidence rule, because doing so would have been fruitless and a waste of time. It further would be inappropriate for this court to speculate about the tactical reasons for counsel's actions and there appears to be good reason for defense counsel not objecting. We therefore reject defendant's IAC objection based on the secondary evidence rule, and further conclude that any failure to object based on the secondary evidence rule was not prejudicial. (Lewis, supra, 25 Cal.4th at pp. 674-675; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
C. Hart's Narration Testimony During the Whiskey Business Bar Video
Defendant contends he received ineffective representation when his trial attorney failed to object to Detective Hart's narration testimony provided while video 5 (exhibit 124) was shown to the jury. We disagree. Defense counsel's failure to object does not constitute IAC.
Video 5 consisted of a loop of surveillance recordings from the Whiskey Business bar, a Jack in the Box restaurant, and a nearby Stater Bros. Detective Hart described what was shown in video 5. While the video was shown to the jury, the prosecutor asked Detective Hart to state if he saw anything in the video of significance. Detective Hart responded by stating that the video showed defendant leaving the patio area. Detective Hart described the sweatshirt defendant was wearing. The prosecutor periodically stopped the video and interspersed questions to Detective Hart throughout Detective Hart's explanation of what was shown in the video. The prosecutor inquired as to the actual time of the events shown in the video and asked why "everything looks white-ish" in the video. Detective Hart explained that, although he was not a camera expert, he believed it was caused by overexposure and use of an infrared camera. As the video was playing for the jury, Detective Hart answered the prosecutor's questions as to what was being shown, such as defendant leaving the Whiskey Business bar patio area, walking towards the pool table area, removing his sweatshirt, going back out to the patio, and returning to the bar area and to the pool tables. Detective Hart noted defendant no longer appeared in the video at the Whiskey Business bar as of 9:20 p.m.
During the next part of the video surveillance loop (video 5, exhibit 124), which consisted of the Jack in the Box surveillance video, the prosecutor asked Detective Hart multiple questions regarding what he observed in the video, beginning about 9:20 p.m. Detective Hart stated that the video showed the Jack in the Box which was next to the Whiskey Business bar. Detective Hart testified defendant was shown walking in front of the Jack in the Box at 9:21 p.m. The prosecutor asked Detective Hart where the Stater Bros. was in relation to the Jack in the Box. Detective Hart said it was nearby, across the street.
Detective Hart identified the next segment of the surveillance video as showing the Stater Bros. at 9:31 p.m. Detective Hart testified that the video showed K.H. exiting the grocery store and walking to her car. The prosecutor stopped the video and asked what had just been shown in the video at 9:33 p.m. Detective Hart explained that it showed defendant running from Stater Bros. to the Whiskey Business bar. The video was continued and again replayed as Detective Hart explained that the video showed defendant running across the back of Jack in the Box, hopping over a wall to where the entry to the Whiskey Business bar was. Detective Hart testified that the video showed that at 9:34 p.m., defendant entered the Whiskey Business bar and appeared to be unzipping his "garment." Detective Hart noted that defendant pulled the sleeves inside out but left his left hand in the sleeve.
The prosecutor reversed the video so that Detective Hart could again explain what was happening during the scene in which defendant was running near the wall, entering the Whiskey Business bar, and removing his garment. The prosecutor asked Detective Hart if he observed in the video defendant holding anything as he entered. Detective Hart stated that he did not see in the video defendant remove his left hand from his left sleeve, which was significant because the knife was later found in the left sleeve. Detective Hart said defendant was holding his garment at his waist, with his left hand remaining in his sleeve as he walked through a doorway, leaving the camera view. When he reentered the camera view four minutes later, at 9:38 p.m., he no longer had his garment. Defendant then walked back to the patio. Detective Hart testified that Sergeant Anolin was shown entering and approaching defendant at 9:41 p.m. Detective Hart explained that the color in the video scene showing Sergeant Anolin handcuffing defendant was incorrect. Sergeant Anolin was actually wearing dark green pants and a jacket, but the actual color was not shown in the video because the camera did not always show the correct color. The prosecutor asked Detective Hart if defendant was wearing a hooded sweatshirt when Sergeant Anolin escorted him out. Detective Hart said no.
Detective Hart's testimony during video 5 consisted of a series of one or two statements interspersed between questions by the prosecutor. The video was stopped on several occasions, and the prosecutor periodically requested that Detective Hart confirm the actual time of the scenes shown on the video, because the date-stamped time on the video was inaccurate and required recalculation of the actual time.
Defendant argues Detective Hart's testimony describing what he observed in the video was improper because Detective Hart repeatedly identified defendant in the video and gave opinions and conclusions as to what was shown in the video. Defendant further argues there was no evidence that Detective Hart ever had contact with defendant before the night of the murder, yet Detective Hart identified defendant numerous times in the video. Defendant asserts that, in effect, Detective Hart's testimony improperly conveyed to the jury the conclusion that defendant was guilty. Defendant maintains that Detective Hart's testimony therefore invaded the province of the jury, because the jury was capable of making its own conclusions as to what was shown in the video and as to defendant's guilt. We disagree.
"A lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800.) '[T]he identity of a person is a proper subject of nonexpert opinion. . . .' (People v. Perry (1976) 60 Cal.App.3d 608, 612 (Perry); accord, People v. Mixon [1982] 129 Cal.App.3d [118,] 127 (Mixon).) [¶] Court of Appeal decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs." (People v. Leon (2015) 61 Cal.4th 569, 601.)
Detective Hart's testimony identifying defendant in the video was permissible, because Detective Hart observed defendant when he was arrested, identified defendant in court, and was involved in the investigation of the charges against defendant. Detective Hart thus testified from personal knowledge of defendant's appearance, and his testimony assisted the trier of fact in determining the identity of the perpetrator of the charged crimes. (Perry, supra, 60 Cal.App.3d at pp. 614-615.) Although Detective Hart did not observe defendant at or before the video was taken, Detective Hart observed him shortly thereafter, when defendant was arrested. As our high court concluded in People v. Leon, supra, 61 Cal.4th at page 601, "because the surveillance video was played for the jury, jurors could make up their own minds about whether the person shown was defendant." Because Hart's testimony "was based on his relevant personal knowledge and aided the jury, the court did not abuse its discretion by admitting it." (Ibid.) "The testimony does not invade the province of the trier of fact, but rather is submitted as an aid in the determination of the ultimate question of the identity of the culprit and the defendant's guilt or innocence. The testimony was properly admitted." (Perry, supra, at p. 615; Mixon, supra, 129 Cal.App.3d at pp. 128-131.) The question of the degree of Detective Hart's knowledge of defendant's appearance thus goes to the weight rather than to the admissibility of his identification of defendant in the video. (Perry, supra, at p. 613; Mixon, supra, at p. 131.)
Defendant argues in his appellant's reply brief that, although testimony identifying defendant in the video is not improper under Leon, Perry, and Mixon, defendant's attorney should have objected to Detective Hart's extensive impermissible narration describing what he viewed in the video. We disagree. Detective Hart's testimony regarding his observations and conclusions, based on viewing the video, was admissible because Detective Hart did not only describe the video recording images, but also interpreted them as an experienced officer and as an investigating officer of the crimes. He testified that the video was inaccurately date-stamped and informed the jury of the correct time, based on conversion of the video date-stamps to the correct time. Detective Hart also explained to the jury the relationship of the locations of the three businesses where the surveillance videos were recorded, and identified individuals shown in the videos.
Defendant argues that Detective Hart's narrative testimony was impermissible because Detective Hart "pictorially testified to his opinion" as to defendant's guilt. But in light of the discretion vested in the trial court, we conclude Detective Hart did not express an opinion as to defendant's guilt. His testimony was permissible. Its weight and convincing force were for the trier of fact to determine. (People v. Medina (1990) 51 Cal.3d 870, 887.) Because Detective Hart's testimony was admissible and any objection would likely have been futile, we reject defendant's IAC challenge to the testimony. Furthermore, even if Detective Hart's attorney had objected and Detective Hart's testimony was excluded as inadmissible, this would not have changed the outcome of defendant's trial. (People v. Watson (1956) 46 Cal.2d 818, 836.) The videos alone provided strong evidence implicating defendant, even in the absence of Detective Hart's testimony.
D. Adequacy of Defense Counsel's Preparation for Trial
Defendant contends he was denied effective assistance of counsel because his attorney was unprepared to proceed to trial on the day set for trial. This, defendant argues, is apparent from the fact his attorney did not give an opening statement, present evidence, or call any witnesses. Defendant argues his attorney failed to present any defense, even though there was evidence defendant had a defense based on intoxication, substance abuse, and post-traumatic stress disorder, which would have established a lack of the requisite specific intent required to prove the predicate robbery offense.
Defendant argues that the following proceedings leading to trial show his attorney was unprepared and therefore provided inadequate representation. His attorney substituted in as defendant's private defense counsel in September 2015. Defendant's trial was continued several times because his attorney was in trial and unavailable. On March 25, 2016, the court ordered defense counsel not to engage in any matters that would interfere with commencing defendant's trial on April 11, 2016. On April 6, 2016, defense counsel filed a motion to continue the trial to May 2, 2016, on the ground he had another trial beginning on April 11, 2016. Defense counsel explained he had been preparing for the other trial, rather than defendant's trial, and therefore needed an additional week to prepare adequately for defendant's trial. On April 8, 2016, defendant's trial was continued because defense counsel was in trial. A trial recall hearing was set on April 15, 2016, and on April 11, 2016, the trial was continued to April 13, 2016.
On April 13, 2016, the court met with counsel and heard pretrial motions. The following day, jury selection began, and was continued to April 18, 2016, with jury selection completed by the end of the day. The next day, the trial proceeded with the People giving an opening statement and defense counsel reserving defendant's opening statement. The prosecution proceeded with its case by calling witnesses. On April 21, 2016, the prosecution rested. After meeting and conferring with defendant, defense counsel informed the court on April 25, 2016, that he would not be giving a reserved opening statement and that defendant did not wish to testify or present any evidence. Defendant rested, based on the existing state of the evidence. Defense counsel provided a relatively brief closing argument. The following day, the jury reached a verdict, finding defendant guilty.
This course of events does not establish that defendant's attorney was unprepared. Defense counsel requested the April 11, 2016, trial be continued because he needed a week to prepare. Jury selection did not begin until April 17, 2016, and the prosecution did not give its opening statement until April 19, 2016, which would have given defense counsel over a week to prepare before any evidence was presented. The fact that no opening statement was given and no evidence was presented does not demonstrate that defendant's attorney was unprepared. These circumstance could have been tactical decisions. Defendant therefore has not established his attorney provided inadequate representation.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
P. J. FIELDS
J.