Opinion
E070510
11-20-2019
THE PEOPLE, Plaintiff and Respondent, v. BACHE ROBINSON, JR., Defendant and Appellant.
Heather L. Beugen, 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, Arlene A. Sevidal, Andrew Mestman and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17003041) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Judge. Affirmed. Heather L. Beugen, 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, Arlene A. Sevidal, Andrew Mestman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Bache Robinson, Jr., of one count of attempted first degree burglary of a residence while a person was present in the residence. (Pen. Code, §§ 459, 664.) In a bifurcated proceeding, the court found true that Robinson had suffered one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court stayed the five-year sentence for the prior serious felony conviction. Robinson was sentenced to state prison for a term of four years.
All further statutory references are to the Penal Code unless otherwise indicated.
Robinson argues that the trial court prejudicially erred by admitting helicopter surveillance footage that was not recorded contemporaneously with the crime. We disagree and affirm.
BACKGROUND
A. Prosecution's Case—Testimony
On August 2, 2017, C.Y. lived in a house located on North Placer Privado in Ontario, California. While making dinner that afternoon, C.Y. opened the kitchen window a little bit. C.Y. did not notice any cuts in the screen on that window. At no point did she cut the screen herself.
Later that night, at approximately 10:00 p.m., M.W., who also lived in a house located on North Placer Privado, heard someone attempt to open her front door. M.W. was inside the house and thought it was her son attempting to enter. When the door did not open, M.W. walked over to the front door and looked through the peephole. The porchlight was off, but M.W. turned it on when she realized that it was not her son at the door. When M.W. turned on the porchlight, the person on the porch turned and started walking away from the house. M.W. testified that the person had a hoodie on, so M.W. only saw "the front of the face on the side and a little bit of the head," including "a little bit of his hair," and the person's back as he was walking away. She described the person as "a black guy," but she could not otherwise identify him.
After calling her son, M.W. called 911 and described what had happened. M.W. described the person as "a black guy" and said that she could not remember anything about what type of clothing he was wearing. M.W. explained that her house was the third house back from the street in a row of three houses. She therefore did not see which way the person went on North Placer Privado after exiting the porch.
At approximately 10:40 p.m., Corporal Daniel Gonzales, a police helicopter pilot for the city of Ontario, heard M.W.'s call about suspicious activity on North Placer Privado and started to surveil the location. On that night, the helicopter was being piloted primarily by a new pilot for whom Corporal Gonzales was acting as the mentor. Corporal Gonzales was also piloting, acting as the "tactical flight officer observer," and conducting police missions. (Initial capitalization omitted.) The helicopter is equipped with a digital mapping system, an infrared camera system, and a monitor. The mapping system and camera system interact so that when an address is entered into the mapping system the camera moves to that address. The camera can be zoomed in and out and can be moved to pan around the area. The infrared camera detects heat, so everything displayed on the monitor is a detection of heat.
The surveillance conducted on August 2 was done at a height of 1500 feet and approximately one-half mile away from the location. Although Corporal Gonzales had the ability to record the surveillance, he did not. It is not his practice to record every time he conducts surveillance, and there is no protocol requiring him to do so.
Looking around M.W.'s neighborhood in response to her 911 call, Corporal Gonzales saw someone walking along North Placer Privado approximately 200 feet away from M.W.'s house. That person was the only human heat source in the area. When Corporal Gonzales first noticed the person, the person appeared to be putting on gloves. Afterward, the person attempted to open the doors of a couple of parked cars. The person would "walk a few feet, stop, turn around, and then they went towards—tried a couple [of] door handles." Corporal Gonzales alerted the dispatcher and the ground units responding to the scene about the activities he was observing.
The person then walked over to a window on the northeast side of C.Y.'s house. Corporal Gonzales thought that the person appeared to be attempting to open the window by sliding it to the right. He noticed movement from left to right which in his experience indicated that the window was being opened. However, he could not see whether the window was actually being opened or whether it was already partially open. The person then walked approximately 50 feet away from the window and immediately returned to the same window. In walking back, the person fell and "used the house to maintain his balance as he attempted the window the second time." The person then walked away from the window again and started walking eastbound on the sidewalk. At that point, police officers in patrol cars approached the person. Corporal Gonzales had not taken the camera off of the person from the moment Corporal Gonzales first noticed the person on the street.
Immediately before the officers on the ground made contact with the person, Corporal Gonzales saw the person use his right hand to toss into the bushes an object that Corporal Gonzales could not identify. Corporal Gonzales explained that the camera was detecting heat, so what he saw was "the hand, a hand motion of something being tossed and something hot being, you know, released from the hand." The heat from the person holding the object transferred to the object and therefore was visible through the infrared technology. After being tossed, the object lost heat and became invisible to the infrared camera.
Officer Chance Gerber, one of the police officers in the responding patrol cars, identified Robinson as the individual walking on North Placer Privado. Robinson had on a soft cast on his right arm, with his ring finger and pinky finger bandaged together. The remaining three fingers on that hand were individually wrapped with clear tape from the bottom inside of the fingers to the fingertips. The tape covered Robinson's fingerprints and did not wrap around to the top side of the hand. Robinson told Officer Gerber that he hurt his hand, so "the hospital had taped up his fingers." Officer Gerber thought that the explanation was "unusual" because he did not think that finger injuries were medically treated in that manner. On his left hand, Robinson was wearing a glove. Robinson was wearing a jacket that did not have a hood. It was warm and humid that night, so Officer Gerber thought that it was unusual that Robinson was wearing a glove and a jacket. Robinson, however, told Officer Gerber that he was wearing the jacket and the glove because he was cold.
Robinson told Officer Gerber that he lived on North Placer Privado, approximately one quarter mile away from where Officer Gerber detained him. When asked by Officer Gerber what he was doing in the area, Robinson first said that "he was just out going for a walk." Less than one minute later, Robinson added that he also was heading to the store.
At the direction of Corporal Gonzales, Officer Gerber went to inspect the window at C.Y.'s house. The shutters were closed, but the glass portion of the window was open. There were cuts on the bottom left and the bottom right portion of the window's screen. The slits were connected so that the screen could be pulled up into some sort of flap. Robinson told Officer Gerber that he had walked by the window. B. Aerial Video Footage Recorded After the Incident
On November 30, 2017, one week before testifying, Corporal Gonzales went back up in the helicopter and made a video recording of himself entering M.W.'s address into the mapping system, "actually sloughing the camera to [that] location," and conducting a routine area search. According to Corporal Gonzales, the purpose of the recording was to "kind of document[] how [Corporal Gonzales] would have gone about the process that night." The recording is eight minutes and does not have audio.
Over the objection of defense counsel, the recording was admitted into evidence and played for the jury. The prosecutor explained that the recording was intended "to give the jury a better idea of how that process works with the aerial surveillance as opposed to give them an idea of what would be visible from the helicopter at that height." The trial court stated that it would allow defense counsel to question Corporal Gonzales about whether the recording was made under similar conditions.
When the recording was played for the jury, Corporal Gonzales asked at certain times to have the video paused so that he could explain what was happening in the video. In the video, Corporal Gonzales demonstrated how the mapping system and the infrared camera system worked by entering M.W.'s address. Corporal Gonzales showed aerial, infrared footage of M.W.'s house and the surrounding area, including where Corporal Gonzales first saw Robinson on North Placer Privado on August 2, C.Y.'s house, the northeast window on C.Y.'s house, the bushes where he saw Robinson throw an object, and the place where Robinson was detained. In addition, Corporal Gonzales found a person walking out of a nearby restaurant and filmed that person to demonstrate what a person looked like through the infrared technology.
On the day of the recording, the helicopter was approximately 500 to 700 feet higher and two-tenths of a mile farther away than where it was located when Corporal Gonzales was conducting surveillance on August 2. Corporal Gonzales explained that he would have been able to get a closer look on August 2.
DISCUSSION
Robinson contends that the trial court abused its discretion by admitting the video recording taken by Corporal Gonzales one week before trial. He further contends that the error was prejudicial. We disagree on both points. A. Not an Abuse of Discretion to Admit Noncontemporaneous Aerial Surveillance Video Recording
Evidence Code section 352 provides that a trial court "in its discretion may exclude evidence 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." "'"Evidence is not prejudicial, as that term is used in [Evidence Code] section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant."'" (People v. Scott (2011) 52 Cal.4th 452, 490.) Rather, "'"[t]he 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."'" (Id. at p. 491.)
"'In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them. [Citation.] Within these limits, "'the physical conditions which existed at the time the event in question occurred need not be duplicated with precision nor is it required that no change has occurred between the happening of the event and the time the [videotape] is taken.'"'" (People v. Carpenter (1997) 15 Cal.4th 312, 386 (Carpenter), abrogated on another ground by People v. Diaz (2015) 60 Cal.4th 1176, 1189.)
We review the trial court's decision to admit demonstrative evidence pursuant to Evidence Code section 352 for an abuse of discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
Robinson claims that the recording was more prejudicial than probative and tended to mislead the jury because it did not accurately portray what Corporal Gonzales "did, or saw, on the day of the incident." He points out that Corporal Gonzales was 500 to 700 feet higher when he recorded the footage than he was on the night of the incident, and on that basis Robinson argues that "the recorded aerial surveillance had a tendency to mislead the jurors as to how well Corporal Gonzales could see the events to which he testified." We do not agree. The recording was not introduced for the purpose of showing the jury how well Corporal Gonzales could see the events. Rather, the primary purpose of the recording was to demonstrate how the technology Corporal Gonzales used on the night of the incident functioned—that is, how the mapping system and infrared camera system functioned separately and together and how the infrared images appeared on the monitor. The recording therefore was offered for the permissible purpose of being "a tool to aid the jury in understanding" the technical components of Corporal Gonzales's testimony. (People v. Duenas (2012) 55 Cal.4th 1, 25.)
Moreover, to the extent that the recording also was used to demonstrate how well Corporal Gonzales could see—or, rather, how well the infrared camera captured images—on the night of August 2, the probative value of the recording still greatly outweighed any prejudice it may have caused. Robinson's claims to the contrary are based on perceived differences between the circumstances of the surveillance on August 2 and the circumstances of the recording of the footage. But the mere existence of differences between the incident and the recording does not render the recording inadmissible. "Differences between real life and a videotape are inevitable and readily apparent to the jury." (Carpenter, supra, 15 Cal.4th at p. 386.) For the evidence to be inadmissible, the dissimilarities must be of a type to mislead the jury. The dissimilarities that Robinson points to are not of that type.
Robinson first points out that the helicopter was 500 to 700 feet higher when the recording was made and concludes that the recording therefore tended to mislead the jury. We disagree. Corporal Gonzales testified that the clarity of the recording was reduced because of the greater altitude—he would have been able to "get an even closer look on the day of the incident just due to the distance." The record contains no evidence to the contrary. The record therefore contains no basis to conclude that the jury was misled about the quality of the contemporaneous surveillance by being shown a higher-quality recording, because the recording was actually of lower quality.
At the same time, the possibly reduced clarity of the recording should not have led the jury to draw unrealistic conclusions about the clarity of the contemporaneous surveillance, because Corporal Gonzales testified that when he was conducting surveillance on August 2 he could not tell exactly what was happening on the ground through the infrared technology on numerous occasions. For instance, Corporal Gonzales was unable to distinguish on which hand or hands Robinson put a glove or gloves, whether C.Y.'s window was open or opened, and what type of object Robinson threw into the bushes. Corporal Gonzales's testimony thus clarified how well he saw what transpired on the night of the incident, and the recording is unlikely to have misled the jury into believing that the surveillance images were significantly better than they actually were.
In his reply brief, Robinson argues for the first time that because the video was recorded during the day but the incident took place at night, the recording had a tendency to mislead the jury. We ordinarily do not consider arguments raised for the first time in a reply brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) In any event, the record contains no evidence that the footage was recorded during the day. The testimony of Corporal Gonzales cited by Robinson for this proposition does not say anything about the time of day that the recording was made. Responding to the question, "how is it that you go about videoing what you're viewing," Corporal Gonzales stated: "On that day we flew over the location, and we started recording." From the phrase "on that day," Robinson concludes that the recording was made during the daytime. But nothing in the record indicates that Corporal Gonzales was referring to daylight hours when he said, "on that day." Nothing contextually in the line of questioning signals that he was referencing the time of day. "On that day" appears to refer to the date—i.e., the 24-hour period—that the recording was made, not the time of day on that date.
Even assuming that Corporal Gonzales was referring to the time of day and not the date, there is nothing in the record demonstrating that this difference would matter for purposes of demonstrating how the infrared system functioned. On the contrary, Corporal Gonzales explained that the MX-10 infrared camera used on August 2 is a high definition camera that possesses both daytime and nighttime capabilities. Earlier models, by contrast, could not be used during the daytime. Absent evidence that the time of day affects the operation of that technology, this dissimilarity has no relevance to determining whether the recording was more probative than prejudicial.
In a similar vein, Robinson does not explain how the mere fact that the recording was made months after the incident had any tendency to mislead the jury. Rather, he contends that "since the surveillance was not from the date of the incident—but taken months later—it was prejudicial because it may not have accurately portrayed what the corporal did, or saw, on the day of the incident." But after-the-fact video recordings of crime scenes or reenactments are admissible despite the inevitable differences from the original events if they "'would assist the jurors in their determination of the facts of the case'" and not "'serve to mislead them.'" (Carpenter, supra, 15 Cal.4th at p. 386; People v. Rodrigues (1994) 8 Cal.4th 1060, 1114-1115 (Rodrigues) ["Moreover, the court could properly find that a viewing of the videotape would aid the jurors in their determination of the facts of the case notwithstanding the claimed inaccuracies"].) "Under circumstances such as these, we must assume that the jurors were intelligent people and that they understood and took into account the differences identified by defendant on appeal." (Rodrigues, supra, at p. 1115.)
We conclude that the video recording was not misleading and had probative value in assisting the jury in understanding how the surveillance technology used by Corporal Gonzales operated. The trial court therefore did not abuse its discretion by admitting the recording. B. Any Error Was Not Prejudicial
Even if the trial court somehow abused its discretion by admitting the video recording, reversal would be warranted only if we were to conclude that it was "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Earp (1999) 20 Cal.4th 826, 878 [Watson standard applies to erroneous admission of evidence under Evid. Code, § 352].) Absent the recording, there was substantial evidence of Robinson's guilt, and it was not reasonably probable that the jury would have reached a different result had the recording been excluded. Within minutes of M.W.'s call to 911 about suspicious activity, Corporal Gonzales observed only one human heat source in the area. That person put on gloves and then walked over to a window at C.Y.'s house, where he moved his hands in a way that looked like he was attempting to open the window. When Officer Gerber arrived on the scene, he confirmed that the person Corporal Gonzales had been observing was Robinson. Robinson was wearing a glove on one hand and the fingertips on three exposed fingers on his other hand were covered with tape. There were slits on the bottom of C.Y.'s window screen.
We reject Robinson's claim that the video recording unfairly bolstered the credibility of Corporal Gonzales's testimony concerning "what he saw, when Gonzales' testimony of what he saw on the night of the incident could not otherwise be corroborated." This argument fails because Officer Gerber's testimony independently corroborated Corporal Gonzales's testimony. Officer Gerber's findings—of Robinson wearing one glove and of the window screen being slit—are consistent with what Corporal Gonzales described witnessing.
In support of his contention that it was reasonably probable that the jury would have reached a different outcome, Robinson points out that the jury at one point was deadlocked. The jurors asked to have Corporal Gonzales's testimony read back to them. After hearing Corporal Gonzales's testimony for a second time, the trial judge questioned several of the jurors about the deadlock. One of the jurors indicated that the jurors had "questions about things," such as "[h]ow it happened." From this, Robinson concludes that "[h]aving recently heard the read-back of Gonzales' testimony [citation], there is a reasonable chance that the jurors relied on the aerial surveillance recreation to find [Robinson] guilty." But the jurors did not ask to rewatch the video, and nothing in the record suggests that the video played any role in breaking the deadlock. The read-back of Corporal Gonzales's testimony therefore has no tendency to show that Robinson would have received a more favorable result but for the admission of the recording.
At oral argument, Robinson argued for the first time that we cannot presume that the jurors did not have the video recording with them in the deliberation room. (See § 1137 ["Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause"].) As counsel conceded, however, nothing in the record demonstrates that the jurors in fact had the recording. Robinson had the burden of affirmatively demonstrating prejudicial error based on the record. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) He failed to do that. --------
Thus, even if we concluded that it was error to admit the video recording, we would conclude that the error was not prejudicial. There is not a reasonable probability that Robinson would have received a more favorable outcome had the recording been excluded.
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J. RAPHAEL
J.