Opinion
A147632
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. MARTIN LINK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN224182)
After defendant Martin Link broke into two apartment buildings in San Francisco, a jury convicted him of two counts of residential burglary and one count of vehicle tampering, and the trial court sentenced him to eight years and four months in prison. On appeal, Link contends that (1) the court erred by permitting a police officer to testify about prior encounters the officer had with him; (2) the court violated his federal constitutional rights by limiting his cross-examination of that officer; and (3) there was cumulative error. We reject these contentions and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Franklin Street Break-in.
A manager for an apartment building on Franklin Street testified that in early March 2015, he noticed "some packages that had been ripped open and left" under a staircase next to the lobby. The packages were addressed to one of the building's tenants. Suspicious that someone had entered the building without authorization, the manager checked the building's video surveillance system.
The surveillance footage showed a man force open the building's front door, which was normally kept locked, and enter the lobby. He headed toward the stairwell, disappeared from the camera's view, and re-emerged into the lobby about 30 seconds later. He then picked up a package from a table in the lobby, took it toward the stairwell, and opened it and went through its contents. He returned to the lobby and picked up another package and opened it, after which he carried it toward the stairwell and disappeared from view again. Finally, he tossed the package under the stairwell, re-emerged into the lobby, and left through the front door, about three minutes after originally entering the building.
B. The Church Street Break-in.
A board member for a condominium complex on Church Street testified that in mid-March 2015, she noticed that the contents of her car, which was parked in the building's garage, "were in a disheveled state," and there was damage to the car's roof. The building's front door also appeared as if it had been "pried open."
Recordings from the building's video surveillance system showed a man force open the building's front door and enter the lobby. Soon after, he was recorded moving throughout the building's garage. In particular, a camera captured him climb on the roof of the board member's car and jump down about two minutes later. He was then recorded leaving through the building's front door about 14 minutes after first entering the lobby. Fingerprints and palm prints collected from the board member's car matched Link's.
The video recordings from both buildings' surveillance systems were introduced into evidence, and we have reviewed the footage.
C. Officer Coleman's Testimony.
Before trial, the prosecutor disclosed that one of his witnesses was Officer Kevin Coleman of the San Francisco Police Department, who was able to identify Link as the person in the buildings' surveillance recordings based on previous contacts with him. The prosecutor stated he was not planning "to go into . . . the nature of the prior contacts, just the number of prior contacts of when [the officer had] seen Mr. Link, how long he had seen him for, the lighting and whatnot to justify his opinion that it was Mr. Link in those videos when he arrested him." Link's trial counsel objected, arguing that identity was not at issue and the evidence was unduly prejudicial under Evidence Code section 352. The trial court ruled that the officer could testify as the prosecutor proposed but "not about what those prior contacts were for," including that some resulted in arrests for alleged burglaries.
All further statutory references are to the Evidence Code unless otherwise noted.
At trial, Officer Coleman testified that he had seen Link "five to six times" in interactions ranging in length from "just in passing, driving by in a car, seeing him on the street to spending up to approximately a half hour with him." He testified that, after the March 2015 break-ins, he received a crime alert that included a still from one of the video recordings and recognized Link as the suspect. In his testimony, Officer Coleman identified Link as the man in both buildings' recordings, and he stated he had arrested Link on March 31, 2015. He also stated he had left Link's address and telephone information blank in his report, which most likely meant that Link was homeless.
The defense theory was that Link was not guilty of the burglary charges because he had entered the two buildings not intending to steal anything but intending only to find a private place to smoke crack cocaine. When, to support this theory, Link's trial counsel attempted to cross-examine Officer Coleman about a crack pipe discovered in Link's possession during the March 31 arrest, the trial court held a sidebar. The prosecutor argued that if Link was permitted to ask about the crack pipe, the People should be permitted to ask about the officer's knowledge of a previous statement Link had made indicating that he had committed a prior burglary to steal items he could sell to obtain money to purchase crack. The court agreed that cross-examination about the crack pipe would open the door to the prosecution's questions about Link's previous statement. Link's counsel objected to not being able to cross-examine the officer about the crack pipe and noted that he was not pursuing such questioning because of the threat that Link's prior statement would be introduced.
The day after Officer Coleman finished testifying, the prosecutor disclosed that he had mistakenly believed that it was Officer Coleman who had taken Link's statement about his intent in committing a previous burglary. In fact, another police officer had done so. Link's trial counsel, apparently wanting to prove that Link was a crack user to support the defense's theory that he entered the two buildings intending to find a private place to smoke crack, stated that he would call Officer Coleman as a defense witness to question him about the crack pipe.
Although the trial court indicated that the People could introduce Link's prior statement through the testimony of the other police officer, that officer ultimately did not testify because the court deemed the statement inadmissible for other reasons.
The prosecutor then indicated he wanted to question Officer Coleman about (1) a December 2013 contact with Link during which Link had a checkbook in the name of someone with a Franklin Street address; (2) an August 2014 arrest of Link for burglary; and (3) Link's possession of a credit card in a woman's name when he was arrested on March 31. Link's trial counsel objected that all three types of testimony should be excluded under section 352 because they were "extremely prejudicial." The trial court overruled the objections. It determined that Officer Coleman could testify about the three topics, all of which were relevant to Link's intent in entering the two buildings, with the limitation that the officer could not testify that the August 2014 arrest resulted in a conviction.
When called by the defense, Officer Coleman testified that Link had a crack pipe both when the officer arrested him on March 31 and when the officer arrested him in August 2014. The officer testified that Link did not, however, have a crack pipe when the officer encountered him in December 2013. On cross-examination, Officer Coleman testified that Link had a checkbook in the name of someone with a Franklin Street address in December 2013, was arrested for a residential burglary in August 2014, and had a credit card in a woman's name when arrested on March 31. Officer Coleman also testified that on none of these three occasions did Link have crack cocaine in his possession or appear to be under the influence of that drug.
D. The Verdict and Sentencing.
The jury convicted Link of two felony counts of residential first degree burglary and one misdemeanor count of vehicle tampering. The trial court then found true various allegations based on Link's 2014 conviction of first degree residential burglary, a strike. After granting the defense's Romero motion to strike the prior conviction for purposes of the Three Strikes law, the court sentenced Link to eight years and four months in prison. The sentence was comprised of a term of two years for the Franklin Street burglary, a consecutive term of one year and four months for the Church Street burglary, a consecutive term of five years for the prior conviction, and a concurrent term of six months in county jail for the vehicle tampering.
The convictions were under Penal Code section 459 (burglary) and Vehicle Code section 10852 (vehicle tampering).
The allegations were found true under Penal Code sections 667, subdivisions (a)(1), (d), and (e), 1170.12, subdivisions (b) and (c), and 1203, subdivision (k).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
II.
DISCUSSION
A. The Trial Court Properly Ruled that Officer Coleman Could Testify About His Prior Contacts with Link.
Link claims that the trial court erred by permitting Officer Coleman to testify about the prior contacts between the two, including the testimony about the August 2014 arrest for residential burglary. We disagree.
We begin with an overview of the applicable evidentiary rules. "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. Leon (2015) 61 Cal.4th 569, 601 (Leon).) Courts "have long upheld admission of testimony identifying defendants in surveillance footage," including such testimony from police officers, when the opinion is based on sufficient contacts with a defendant and familiarity with his or her appearance. (Ibid.; see, e.g., People v. Mixon (1982) 129 Cal.App.3d 118, 127; People v. Perry (1976) 60 Cal.App.3d 608, 612-613.)
Under section 1101, subdivision (b), evidence of a defendant's prior misconduct is admissible "when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act." Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) The relevance of evidence of prior misconduct "depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact." (Leon, supra, 61 Cal.4th at p. 598.) " 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' " (Ibid.)
Under section 352, otherwise admissible evidence is subject to exclusion "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The "prejudice" referred to in section 352 " ' "characteriz[es] evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." ' " (People v. Carter (2005) 36 Cal.4th 1114, 1168.)
We review the trial court's evidentiary rulings for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) " ' "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (People v. Rogers (2013) 57 Cal.4th 296, 326.)
With these rules and standards in mind, we turn to consider Link's argument that Officer Coleman was improperly allowed to testify about his prior contacts with Link. Link argues that Officer Coleman's testimony about the prior contacts was inadmissible because it was of limited probative value, as the issue of identity was undisputed, and was cumulative to other evidence establishing identity. He does not contend that the testimony was inadmissible because it failed to meet the requirements of section 800 or section 1101, subdivision (b). To the extent Link's argument can be construed as a challenge to the testimony's relevance, as opposed to its admissibility under section 352 (see People v. Carter, supra, 36 Cal.4th at p. 1167), it fails.
First, by pleading not guilty, Link "put in issue all of the elements of the offenses." (People v. Steele (2002) 27 Cal.4th 1230, 1243.) Even though he effectively conceded that he was the perpetrator of both break-ins, "the prosecution [was] still entitled to prove its case and especially to prove a fact so central to the basic question of guilt" as identity. (Ibid.) Moreover, certain details about the prior contacts were relevant to the issue of intent, which was disputed.
Second, contrary to Link's position otherwise, the fingerprint evidence from the Church Street break-in and the video recordings did not render Officer Coleman's testimony cumulative. The fingerprint evidence was relevant to only one of the burglaries and was not a substitute for the recordings showing Link's actions, particularly because the recordings were relevant on issues other than identity. The recordings, in turn, did not render Officer Coleman's testimony cumulative either: law enforcement testimony identifying a defendant from a surveillance recording is admissible under section 800 even though the recording itself is also played for the jury. (See, e.g., Leon, supra, 61 Cal.4th at pp. 600-601.) In any event, "[e]vidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in . . . section 352." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.)
Link also argues that Officer Coleman's testimony was unduly prejudicial under section 352. He claims that the officer's testimony about the August 2014 arrest for residential burglary was unduly prejudicial because the same crime was charged in this case. "Without doubt, evidence a defendant committed an offense on a separate occasion is inherently prejudicial," but such evidence is subject to exclusion under section 352 "only when its probative value is substantially outweighed by its prejudicial effect" to the extent " 'it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Tran (2011) 51 Cal.4th 1040, 1047.) Link offers no authority in support of his argument that the testimony about the prior arrest met this standard. Instead, he relies on the trial court's initial ruling that Officer Coleman could not testify about the nature of the prior contacts, suggesting the ruling established that such details were unduly prejudicial. We find the ruling of little significance, however, since the trial court decided to admit testimony about the August 2014 arrest only after it became clear that Link's defense was that he entered the buildings with the intent only to smoke crack cocaine in private. Even if the officer's testimony about the arrest was unduly prejudicial when offered on the issue of identity, it was probative to counter Link's defense. Link therefore fails to convince us that the court abused its discretion by admitting testimony about the August 2014 arrest.
Link also claims that Officer Coleman's testimony more generally was unduly prejudicial because it portrayed him "as someone who was engaged in criminal conduct and routinely subject to police scrutiny, rather than a homeless man addicted to crack." He relies on cases identifying a "concern where . . . lay identification testimony comes from law enforcement officials . . . that such testimony will 'increase the possibility of prejudice to the defendant in that he [or she is] presented as a person subject to a certain degree of police scrutiny.' " (People v. Mixon, supra, 129 Cal.App.3d at p. 129, quoting United States v. Butcher (9th Cir. 1977) 557 F.2d 666, 669.) In Butcher, the Ninth Circuit Court of Appeals cautioned that "use of lay opinion identification by [law enforcement officials] is not to be encouraged, and should be used only if no other adequate identification testimony is available to the prosecution." (Butcher, at p. 670.) Assuming, without deciding, that Butcher's principles are sound, we conclude that the trial court's admission of Officer Coleman's testimony did not run afoul of them. There is no indication in the record that any potential witness other than Officer Coleman was sufficiently acquainted with Link and available to identify him as the man in the video recordings. In addition, any prejudice resulting from the evidence that Link had multiple contacts with police was lessened both by the limited details about which the officer was allowed to testify and by Link's defense that he was homeless and a drug addict, characteristics tending to explain his increased visibility to police.
Finally, Link contends that the trial court violated his federal constitutional right to due process by admitting Officer Coleman's testimony, a claim we reject. "[T]he admission of evidence . . . results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.) Although Link did not object on constitutional grounds below, he argues that he preserved the claim because the court granted his request that all objections be deemed to include "both the California and federal constitutional ground." We agree that the claim was preserved, but for a different reason. Link's claim is not forfeited because his "arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act . . . insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution." (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, italics omitted.) Indeed, his only argument for why the evidence rendered the trial fundamentally unfair is to reiterate that the testimony "was overly prejudicial and . . . merely cumulative to the prosecution's evidence regarding [his] identity." Because his constitutional argument echoes his previous arguments, our determination that the testimony was admissible under state evidentiary law is fatal to Link's claim and requires "[n]o separate constitutional discussion." (Ibid.)
B. The Ruling Limiting Cross-examination of Officer Coleman Did Not Violate Link's Right to Confrontation or to Present a Complete Defense.
Link also claims that the trial court's ruling that he could not cross-examine Officer Coleman about Link's March 31 possession of a crack pipe without opening the door to the prosecution's questions about Link's prior statement denied him his federal constitutional rights to confrontation and to present a complete defense. We are not persuaded.
"The Confrontation Clause of the Sixth Amendment gives the accused the right 'to be confronted with the witnesses against him [or her].' This has long been read as securing an adequate opportunity to cross-examine adverse witnesses." (United States v. Owens (1988) 484 U.S. 554, 557.) Nevertheless, a trial court may "impose reasonable limits on counsel's inquiry," and "the court's 'limitation on cross-examination . . . does not violate the [C]onfrontation [C]lause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted.' " (People v. Williams (2016) 1 Cal.5th 1166, 1192, italics omitted.) When a Confrontation Clause claim is premised on the trial court's restriction of the scope of cross-examination, we review for an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 765.)
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation [C]lauses of the Sixth Amendment [citations], the Constitution [also] guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690.) "A defendant is denied that opportunity when the state is permitted ' "to exclude competent, reliable evidence . . . when such evidence is central to the defendant's claim of innocence," ' absent a valid justification for excluding the evidence." (People v. London (2014) 228 Cal.App.4th 544, 558-559.) We review de novo claims premised on the right to present a complete defense. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 70.)
Link argues that the trial court's ruling violated his constitutional rights to confrontation and to present a complete defense because it "prevented [him] from establishing in the prosecution's case-in-chief that Officer Coleman discovered a crack pipe in his possession at the time of his arrest, thereby supporting the defense theory that [he] was a crack addict." But Link had the opportunity, which he exercised, to recall Officer Coleman as a defense witness and ask questions about the crack pipe then. We fail to see how the court's ruling, which resulted in the questioning occurring during the defense case instead of the prosecution case, impinged on Link's constitutional rights. For similar reasons, we do not see why the prosecutor's initial inadvertent misrepresentation about which officer took Link's statement about his intent in committing a prior burglary is significant. To the extent Link is suggesting that the court's ruling impermissibly forced him to choose between not calling Officer Coleman as a defense witness and opening the door to the prosecution's introduction of additional harmful evidence, he does not explain the suggestion or cite any supporting authority. As a result, he fails to demonstrate any constitutional error.
C. Link's Claim of Cumulative Error Fails.
Finally, Link argues that the cumulative effect of the errors he identifies requires reversal of his convictions, even if none of the errors individually require reversal. For the reasons discussed above, we find no error, and we therefore reject this claim. (People v. Wallace (2008) 44 Cal.4th 1032, 1099.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.