Opinion
E079753
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. MOSES DANIEL ARGUELLEZ, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF2102044, Matthew C. Perantoni and Mark E. Johnson, Judges.[*]
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
I. INTRODUCTION
A jury found defendant and appellant Moses Daniel Arguellez guilty as charged of the premeditated attempted murder of J.M. on May 3, 2021 (Pen. Code, §§ 664,187, subd. (a); count 1) and assaulting J.M. with a firearm (§ 245, subd. (a)(2); count 2). The jury also found that defendant intentionally discharged a firearm causing great bodily injury during the attempted murder (§ 12022. 53, subd. (d)) and personally used a firearm in assaulting J.M. with a firearm (§12022.5, subd. (a)). Defendant admitted, and the court found, that defendant had a 2004 robbery conviction, which constituted both a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to state prison for five years plus 39 years to life.
Unspecified statutory references are to the Penal Code.
Defendant's aggregate sentence of five years plus 39 years to life is comprised of five years for the prior serious felony conviction, plus 14 years to life (7 years to life, doubled based on the prior strike) for the attempted murder conviction, plus 25 years to life for the personal discharge causing injury enhancement. The court imposed but stayed a 10-year term on count 2: six years (3 years, doubled based on the prior strike) for the firearm assault conviction plus four years for the personal use enhancement.
The primary issue at trial was identity, whether defendant was the person who shot J.M. in the neck outside J.M.'s home on May 3, 2021. In this appeal, defendant claims the trial court violated his rights to due process and a fair trial and the secondary evidence rule by allowing the People to present an investigator's opinion testimony about the contents of a surveillance video, the Xola hotel video, that was not preserved in evidence.
We find no federal due process or state law error in the admission of the investigator's testimony. We affirm the judgment in all respects, and we remand the matter with directions to correct an error in the abstract of judgment for the determinate portion of defendant's sentence.
II. FACTS AND PROCEDURE
A. Prosecution Evidence
In May 2021, J.M. lived in a house in Moreno Valley with his girlfriend of nine years, K.J.; her three children; and her mother. Defendant was the father of two of K.J.'s children. A.A. also lived in the house.
1. J.M.'s Testimony
J.M. testified he knew defendant as the father of two of K.J.'s children. Before May 2021, J.M. had met defendant a total of five to seven times, and had met defendant "face-to-face" on only two occasions. The first time they met, around 2013, they got into an argument which ended in a "fist fight" over J.M. being with K.J. The second time they met, around 2014, they had a "yelling match." After these incidents, there were no further altercations between J.M. and defendant. On the rare occasions when defendant came to the house to visit his children, J.M. would usually leave the house to avoid any problems with defendant. J.M. last saw defendant at the house two months before May 2021, talking to his children. In May 2021, J.M. thought that he and defendant were "okay."
Around 5:20 p.m., on May 3, 2021, J.M. was shot in the neck while standing in his driveway, working on the engine of K.J.'s car. J.M. had been working on the car engine since he arrived home at 5:00 p.m. Around three minutes before he was shot, J.M. saw a white car drive by his and K.J.'s house. After seeing the white car, J.M. continued working on the car engine, when he heard someone behind him say," 'Who's a bitch now?'" J.M. recognized the voice as defendant's voice. J.M. then turned and saw defendant standing five to six feet "directly in front" of J.M. and pointing a gun at J.M.'s face.
J.M. knew that defendant did not own or drive a white car or any car; defendant would walk to J.M. and K.J.'s house to visit his children.
At trial, J.M. was "100 percent" sure that defendant was the person holding the gun based on J.M.'s prior contacts with defendant. J.M. recalled that defendant was not wearing a face mask and was holding a backpack, but J.M. did not recall what defendant was wearing and could not describe the gun. J.M. looked at defendant and the gun for a couple of seconds, then J.M. turned back toward the car engine. As he turned back toward the car engine, J.M. heard a gunshot, and his "neck and jaw just dropped" in response to being shot. J.M. also heard a" 'clicking'" sound, as though the gun had jammed. J.M. "ran to the passenger side of the car" for "cover," as defendant stood there, still pointing the gun at J.M. J.M. remembered K.J. walking out of the house, and J.M. telling K.J. that" 'Moses shot me.'" At that point, J.M. believed he was going to die. J.M. then lost consciousness.
The gunshot entered J.M.'s neck about two inches below his right ear and exited through his chin. J.M. was in a coma for around six weeks and, when he awoke from the coma, he did not remember what had happened. J.M. was released from the hospital on July 3 or July 5, 2021. Shortly thereafter, J.M. told an investigator that defendant was the person who shot him, and J.M. identified defendant as the shooter in a photo lineup. At trial, J.M. still did not recall what happened after he told K.J. that defendant shot him. He did not recall paramedics arriving, being in an ambulance, arriving at a hospital, or anyone talking to him after he told K.J. that defendant shot him.
At the time of trial, J.M. had a pending felony charge against him for unlawful firearm possession. J.M. admitted (1) receiving stolen property as a misdemeanor in 2014, (2) a 2012 felony conviction for vehicle theft with a prior, (3) possessing burglary tools as a misdemeanor in 2009, (4) a 2006 felony conviction for receiving a stolen vehicle, and (5) a 2005 felony conviction for child abuse or endangerment.
2. K.J.'s Testimony
K.J. testified that she arrived home shortly after 5:00 p.m. on May 3, 2021, while J.M. was in the driveway of the house, working on K.J.'s car. K.J. was inside the house, helping her son get ready to leave the house for baseball practice, when K.J. heard a "loud noise." She ran to the front door and found J.M. on the other side of the door with blood "gushing . . . from his mouth." J.M. told K.J.," 'It was Moses [(defendant)].'" A.A. heard K.J. scream and called 9-1-1. J.M. seemed confused when J.M. was at the front door; J.M. walked back to K.J.'s car and leaned on it. Then J.M. lay on the ground while K.J. tried to keep him awake and stop the bleeding. Police and paramedics arrived at the house around ten minutes after the 9-1-1 call. K.J. told one of the responding officers that J.M. had told her that defendant shot J.M. Before the shooting, defendant would sometimes try to talk to K.J. about renewing their relationship, but K.J. was not interested.
3. J.O.'s Testimony and Home-Surveillance Video
Before the shooting, J.O., a neighbor who lived across the street from J.M. and K.J, saw a man walking across the front yard of J.M. and K.J.'s house and going to the front door. To J.O., the man looked "suspicious" because he stood near the front door and "look[ed] over his shoulder" toward J.M. and K.J.'s house. J.O saw that the man was carrying a bag and had walked from down the street and around the corner. J.O. had never seen the man before, and the man was too far away from J.O. for J.O. to see his face. After the shooting, J.O. was unable to identify the man in a photo lineup and did not identify defendant at trial as the man. A few minutes before J.O. saw the man walk to the house, and before the shooting, J.O. saw an older white Mercedes Benz, with dark windows, traveling "pretty fast" on the street; but, J.O. was unable to see the driver of the Mercedes or whether it had any passengers.
J.O. did not see or hear the shooting. But J.O. reviewed his home surveillance camera footage with police officers, and several segments or clips of the video were played for the jury. The clips showed, in order of occurrence: (1) the white Mercedes driving on the street in front of J.M. and K.J.'s house, (2) the man walking across the yard to the front door of the house, and (3) the same man shooting a gun and running away, although J.M. was off-screen and not visible. The video clip that captured the man shooting a gun was timestamped at 5:20 p.m. After the shooting, K.J. can be heard on the last clip saying, "Moses shot him." An officer who viewed the clip, showing the man walking across the yard and going to the front door of J.M.'s and K.J.'s house, saw that the man was wearing a face mask.
After watching the last video clip at trial, K.J. opined that the man shown walking in the video was defendant, based on the man's walk, clothing, height, and the fact K.J. and defendant had had a ten-year relationship. K.J. was not "100 percent" sure the man was defendant, however, because his face was not visible in the video clip.
4. Crime-Scene Evidence
Sheriff's deputies searched the crime-scene area for evidence. They found one empty nine-millimeter shell casing on the driveway next door to J.M. and K.J.'s house, as well as three live nine-millimeter rounds on J.M. and K.M.'s property near the next door neighbor's driveway. The casing and rounds were from a semiautomatic firearm. After a live round is fired from a semiautomatic firearm, the firearm ejects the shell casing. A semiautomatic firearm will "click" but will not fire, and will eject a live round, if the shooter tries to fire the firearm without pulling back the slide. Thus, the three live rounds could have been ejected when the firearm malfunctioned-when the next round did not feed into to the chamber because the slide had not been pulled back.
5. The Citywide Surveillance Videos (Tracking an Older, White Mercedes)
Based on video taken at various city intersections by the "citywide surveillance system" in Moreno Valley, investigators believed that a four-door, older, white Mercedes Benz sedan drove to the neighborhood of the shooting shortly before the shooting and drove away from the neighborhood shortly after shooting. Riverside County Sheriff's Deputy M.H. was familiar with, and regularly used, the citywide surveillance system to track vehicles in Moreno Valley. He explained that the system consisted of cameras "set up at various intersections throughout the city," which were used "to monitor thoroughfares of traffic that are generally or typically used by [a] majority of traffic in and out of the city."
Deputy M.H. testified that videos from the citywide surveillance system, which were played for the jury, showed an older, white Mercedes leaving the neighborhood of the shooting, shortly after 5:20 p.m., on May 3, 2021-the time of the shooting according to J.O.'s home surveillance video. The Mercedes drove north of the neighborhood and could not be seen after 5:22 p.m. No other vehicles were captured on citywide surveillance video leaving the neighborhood of the shooting shortly after the shooting.
Citywide surveillance video taken before the shooting showed a white Mercedes leaving the parking lot of the Xola Hotel at 4:51 p.m. and arriving in the neighborhood of the shooting at 4:57 p.m. Deputy M.H. testified that the scene of the shooting was an approximate six-minute drive from the Xola Hotel. The deputy opined that the Mercedes shown leaving the Xola Hotel appeared to be the Mercedes that traveled to and left the neighborhood of the shooting because the vehicles had the same wheels, tinted windows, grill, sun roof, and model year. Before the shooting, there appeared to be two people in the Mercedes, the driver and one passenger, and the driver may have been wearing a face mask. The license plate number of the Mercedes appeared to end in "355," "385," or "395."
Around 10:00 p.m., on May 3, 2021, sheriff's deputies conducted a traffic stop on a white, four-door, older model Mercedes with a license plate number ending in 385.
The driver was a male, F.F., and the passenger was a female, C.W. The Mercedes was impounded, and a fingerprint collected from the Mercedes matched defendant's fingerprint. On May 20, 2021, a male, F.M., a female, C.E., and defendant were in a vehicle stopped by sheriff's deputies and were taken to a sheriff's station.
6. Investigator C.I.'s Testimony About the Contents of the Xola Hotel Video
On May 13, 2021, after reviewing city wide surveillance videos, Investigator C.I. went to the Xola Hotel where he watched a video taken by the hotel's surveillance system on May 3. The hotel manager, using a desk computer, accessed the video from the hotel's surveillance system and watched the video with C.I. Around May 17, 2021, the video was overwritten and a copy was not preserved. Thus, the video was unavailable to be viewed at trial.
C.I. explained how the Xola hotel video was destroyed and was not preserved in evidence: After watching the video with the hotel manager on May 13, 2021, C.I. asked the manager to put a copy of the video on a flash drive, and the manager gave C.I. a flash drive that the manager said contained the video. On May 13, C.I. booked the flash drive into evidence, but on May 18, when he attempted to watch the video on the flash drive, C.I. discovered that the flash drive contained a different video showing nothing relevant to the investigation. On May 19, C.I. met with the hotel manager again and was informed that the video no longer existed because the hotel's surveillance system had written over it around 14 days after it was recorded. C.I. then wrote a report about what he saw on the video.
C.I. testified about what he saw on the video when he watched it with the hotel manager on May 13, 2021. The video showed that, around 4:15 p.m., on May 3, a white, four-door Mercedes arrived at the hotel lobby entrance area. The Mercedes appeared to be the same Mercedes seen on the citywide surveillance video, arriving and leaving the neighborhood of the shooting shortly before and after the shooting. A female got out of the Mercedes from the driver's side and walked into the hotel lobby. At this point, another person, who appeared to be a male, was in the Mercedes. The female then came outside, got back into the Mercedes, drove the Mercedes to the northeast area of the hotel parking lot, and parked the Mercedes near the hotel's north building. The female and a male then got out of the Mercedes and walked around it, apparently collecting items from it. The male and female "were in and out of the vehicle, opening doors."
The hotel surveillance camera captured the male and female walking around the Mercedes from a distance of approximately 200 feet. Thus, C.I. was unable to see "much detail" in the video, and did not recall the male's features or the clothing the male was wearing. After collecting items from the Mercedes, the female walked toward one of the hotel buildings, and the male walked out of camera range. Around 15 minutes later, at 4:28 p.m., C.I. saw "a male subject, who appeared to be the same male subject," walk to the Mercedes. The Mercedes's hood and several of its doors were open, and the male "was in and out of the [Mercedes] for a short period." The male then "entered the driver's side" and drove the Mercedes out of the parking lot at 4:50 p.m. C.I. estimated that the shooting occurred six to seven miles, a 15 to 20 minute drive, from the Xola hotel. The license plate number of the Mercedes was not visible on the video. C.I. opined that the Mercedes that left the Xola Hotel parking lot at 4:50 p.m., on May 3, 2021 appeared to be the same Mercedes that drove by J.M. and K.J.'s house before the 5:20 p.m. shooting, as recorded on J.O.'s home surveillance video.
B. Defense Evidence
A sheriff's deputy was in the ambulance that transported J.M. to the hospital after the shooting. J.M. was in and out of consciousness and, during a brief period of time when J.M. appeared to be conscious, the deputy asked J.M. who shot him. J.M. shook his head from left to right. The deputy understood J.M. to be saying that J.M. did not know who shot him. The deputy thought J.M. was conscious based on his body movements; but J.M.'s eyes were closed most of the time, and J.M. never verbally responded to questioning.
Defendant's girlfriend, C.E., testified that she and defendant were living together "for the most part" in May 2021 and "hung out" together five or six days of the week. C.E. loved defendant and said she was "pretty sure" and could "almost guarantee" that defendant was with her on May 3, 2021, but she could not specifically recall whether defendant was with her on May 3 or what they were doing. C.E. had never seen defendant drive a white Mercedes or be "anywhere near" a white Mercedes. C.E. recalled being with defendant on May 20, 2021, the day defendant "was remanded into custody." C.E. acknowledged it was possible that, when questioned by police on May 20, she told police that she did not know defendant well.
III. DISCUSSION
Defendant claims the trial court violated (1) his federal constitutional right to due process and a fair trial (U.S. Const., 5th &14th Amends.), and (2) the secondary evidence rule (Evid. Code, §§ 1521, 1523) in allowing Investigator C.I. "to testify to his opinion of what was shown on the surveillance footage from the Xola hotel." Defendant's claims are based on (1) C.I.'s failure to preserve the hotel video, and (2) defendant's inability cross-examine C.I. about what C.I. saw on the hotel video with the hotel video itself.
A. Additional Background
The People filed a motion in limine to allow Investigator C.I. to testify, pursuant to the secondary evidence rule, to what C.I. saw on the Xola hotel video. (Evid. Code, §§ 1521-1523.) The People argued C.I.'s testimony was admissible under the secondary evidence rule because the video was destroyed without fraudulent intent on the part of the proponent of the evidence, the People. (Evid. Code, § 1523, subd. (b); see People v. Lucas (2014) 60 Cal.4th 153, 265 [discussing "former best evidence rule"].)
In opposing the motion, defense counsel did not claim the video was destroyed with fraudulent intent or in bad faith. Nor did counsel claim the People violated defendant's due process rights in failing to preserve a copy of the video for evidence. Instead, counsel argued that, because the defense had not seen the video, the investigator's testimony about the video's contents (1) would violate defendant's Sixth Amendment right to confront and cross-examine the investigator, and (2) would be "fundamental[ly] unfair" under the due process clauses of the federal and state Constitutions. Counsel further argued that the investigator's testimony would violate the secondary evidence rule because (1) there was a "genuine dispute" concerning the video's contents-whether it showed defendant or another male getting into the Mercedes and driving out of the hotel parking lot before the shooting-and (2) the admission of the investigator's testimony would be unfair. (Evid. Code, § 1523, subd. (a).) Counsel argued, "it's unfair he [(C.I.)] can carte blanche say whatever he wants [about] what was in [the video], and I can't say anything about it."
The prosecutor responded that C.I. would not be testifying to "whatever he wants" about the video's contents because C.I. wrote a report documenting what he saw on the video; thus, C.I.'s testimony would be consistent with what he wrote in his report. The prosecutor further argued that C.I. would not be "making any conclusions" based on what he saw on the video. For example, C.I. would not testify he saw defendant in the video; he would only be testifying he saw a male and a female. For these reasons, and because the video was not lost due to fraud, the People asked the court to allow C.I. to testify to what he saw on the video. (Evid. Code, § 1521, subd. (b).)
Defense counsel replied that, even if C.I.'s testimony did not deviate from C.I.'s report, C.I. wrote the report from C.I.'s point of view, which was based on "trying to prove" that defendant was the shooter. Counsel argued that, if the video were viewed "from a defense perspective," the report would have included "fine details" like the color and other physical features of the Mercedes and the clothing and other physical features (height, e.g.) of the male shown in the video. Without the defense being able to see the video, counsel argued, the jury would assume that the male in the video was defendant and the female was C.W.
The court took the matter under submission and later ruled that C.I. could testify about the video's contents because there was no "fraudulent intent" in the destruction of the video. The court said it did not see "a great difference" between C.I. testifying to something C.I. personally saw and C.I. testifying to what he saw on the video. Defense counsel did not specifically claim that the failure to preserve the video violated defendant's due process rights and, on that basis, required the dismissal of the charges or the exclusion of C.I.'s testimony about the contents of the video. As we explain, however, this due process claim was preserved for appeal.
See footnote 6, post.
B. The Failure to Preserve the Xola Hotel Video Was Not a Due Process Violation
"Law enforcement agents have a constitutional duty to preserve evidence, but that duty is limited to 'evidence that might be expected to play a significant role in the suspect's defense.' (California v. Trombetta (1984) 467 U.S. 479, 488 [(Trombetta).] To reach this standard of 'constitutional materiality,' the 'evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' (Id. at p. 489; accord, People v. Carter (2005) 36 Cal.4th 1215, 1246.)
"The defendant bears a higher burden to establish a constitutional violation when 'no more can be said' of the evidence 'than that it could have been subjected to tests, the results of which might have exonerated the defendant.' (Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood).) In such cases, 'unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.' (Id. at p. 58; [Citation].) The assessment of bad faith 'must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.' (Youngblood, at p. 57, fn. *.)" (People v. Flores (2020) 9 Cal.5th 371, 394 (Flores).)
We review the trial court's ruling on a Trombetta/Youngblood motion under the substantial evidence standard. (Flores, supra, 9 Cal.5th at p. 393; People v. Montes (2014) 58 Cal.4th 809, 837.) That is, we review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible, and of solid value-that supports the trial court's ruling. (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).)
As noted, in opposing the People's motion in limine to admit C.I.'s testimony about the contents of the hotel video, defense counsel did not ask the court to dismiss the charges or to exclude C.I.'s testimony about the video's contents based on C.I.'s failure to preserve the video. That is, defense counsel did not claim that the failure to preserve the video violated the federal constitutional due process standards articulated in Trombetta, supra, 467 U.S. at pp. 488-489, and Youngblood, supra, 488 U.S. at pp. 5758. As the People concede, however, defendant's Trombetta/Younglood claims in this appeal do" 'not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court's act or omission, in addition to being wrong . . ., had the [additional] legal consequence of violating the Constitution ....'" (People v. Gutierrez (2009) 45 Cal.4th 789, 809.) Thus, defendant has preserved, and did not forfeit, his Trombetta/Youngblood claims for appeal. (Ibid; People v. Partida (2005) 37 Cal.4th 428, 433-439.)
1. There Was No Trombetta Violation
The failure to preserve the hotel video was not a Trombetta violation. That is, the hotel video did not possess "an exculpatory value that was apparent before the [video] was destroyed;" thus, the hotel video did not contain "evidence that might be expected to play a significant role in the suspect's defense." (Trombetta, supra, 467 U.S at p. 488.) "Trombetta speaks of evidence whose exculpatory value [to the suspect] is 'apparent.'" (Youngblood, supra, 488 U.S. at p. 56, fn. *.)
According to the People's offer of proof and C.I.'s trial testimony, it was not apparent to C.I., when he viewed the video on May 13, 2021, that the male who left the hotel parking lot in the Mercedes at 4:50 p.m., on May 3, could be identified in the video. C.I. did not report, or opine in his testimony, that the male shown in the video was defendant, or that the male's physical features or clothing matched the clothing and physical features of defendant, as shown in J.O.'s home surveillance video. Instead, C.I. indicated in his report, and later testified at trial, that the clothing the male was wearing, and other details, including the license plate of the Mercedes, could not be clearly seen in the hotel video, given that the hotel video captured the male walking outside the Mercedes from a distance of approximately 200 feet. Thus, the hotel video contained no apparent exculpatory value to the defense when C.I. viewed it on May 13, or before it video was overwritten and destroyed around May 17. (Trombetta, supra, 467 U.S. at pp. 488-489.)
Defendant argues that, "[e]ven if all that could be seen on the [hotel] video was the clothing the man wore, it might have made a profound difference" to his defense that he was mistakenly identified as the shooter, given that J.O. "gave a detailed description of the clothing worn by the shooter" and J.O.'s home "surveillance footage also showed what the shooter was wearing." Defendant argues, "[g]iven the close timing of the hotel footage to the time of the shooting, [defendant] might have been eliminated [as the shooter] based on the difference in clothing alone. But [C.I.] admitted he'd failed to make a note of the clothing the man in the hotel video was wearing." Indeed, C.I. testified he did not recall the clothing the male was wearing, and that it was difficult to see "specific features" in the hotel video due to the 200-foot distance between the hotel surveillance camera and the male when the male was walking around outside of the Mercedes. C.I. admitted he did not make a note of what the male was wearing when he viewed the hotel video on May 13, 2021, and C.I. said he would "certainly have taken much better notes" had he known he would not be able to view the hotel video again. At most, C.I.'s testimony showed that the clothing the male was wearing may have been visible in the hotel video, with or without enhancing the hotel video. But this does not mean the hotel video had any apparent exculpatory value to the defense when C.I. viewed the hotel on May 13, 2021.
There is no showing that it would have been apparent to C.I., or to any reasonable investigator watching the hotel video on May 13, 2021, that the clothing the male in the video was wearing differed substantially from the clothing the shooter was wearing, as shown in J.O.'s home surveillance video: a long, dark shirt; dark shorts; white socks; and shoes with white bottoms. Further, as the People point out even if the hotel video could have been enhanced to show that the clothing the male in the video was wearing did not match the clothing the shooter was wearing, as seen in J.O.'s home surveillance video, the hotel video still had no apparent exculpatory value to defendant, given that the shooter could have changed his clothing before the shooting, either in the Mercedes or before walking to the scene of the shooting.
2. There Was No Youngblood Violation
The most that can be said of the hotel video is that it was "potentially useful" to the defense. (Youngblood, supra, 488 U.S. at p. 58.) Indeed, defendant argues he may have been able to enhance the hotel video to show that the male seen in the hotel video was not defendant. In other words, "no more can be said" of the hotel video "than that it could have been subjected to tests, the results of which might have exonerated" defendant. (Id. at p. 57; Flores, supra, 9 Cal.5th at p. 394.)
Thus, in order to establish a due process violation based on the failure to preserve the hotel video, defendant must show that C.I. acted in bad faith in failing to preserve the hotel video. (Youngblood, supra, 488 U.S. at p. 57; Flores, supra, 9 Cal.5th at p. 395.) But defendant did not claim in the trial court and does not claim in this appeal that C.I. acted in bad faith in failing to preserve the potentially useful hotel video. Thus, defendant cannot establish a due process violation based on C.I.'s failure to preserve the video. (Youngblood, at p. 58 ["[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."].)
Further, the trial court found there was no "fraud" in the failure to preserve the hotel video, which was equivalent to finding there was no "bad faith" in the failure to preserve the hotel video. "[W]hether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence." (People v. Memro (1995) 11 Cal.4th 786, 831.) The People's offer of proof, based on C.I.'s report of the hotel video's contents, as confirmed by C.I.'s trial testimony, supports the court's factual finding that there was no fraud or bad faith on the part of C.I. or other law enforcement officers in the failure to preserve the video.
C.I. testified that on May 13, 2021, the hotel manager gave C.I. a flash drive that was supposed to contain a copy of the hotel video, and C.I. booked the flash drive into evidence; but, when C.I. attempted to view the flash drive on May 18, he discovered it did not contain the video and, by that time, the video had been overwritten and destroyed. Defendant did not contest this showing in the trial court, and he does not claim in this appeal that C.I. acted in bad faith in failing to preserve the video. Thus, defendant cannot establish a Youngblood violation in the failure to preserve the video. (Youngblood, supra, 488 U.S. at pp. 57-58.) Further, even if, as defendant suggests, C.I. was negligent in failing to record the video on C.I.'s phone when C.I. viewed the video on May 13, 2021, the negligent failure to preserve evidence that is only "potentially useful" to the defense does not give rise to a due process violation. (Youngblood, at p. 58.)
We are not persuaded that C.I. was "negligent" in not recording the contents of the hotel video where he was given a flash drive, which purported to contain a copy of the hotel video, on the same day that he initially watched it.
3. Alvarez Is Not Factually Analogous
Defendant argues this case is factually analogous to Alvarez, where Division Three of this court upheld the dismissal of robbery charges against two defendants based on the "bad faith" failure to preserve a surveillance video that was potentially useful to the two defendants. (Alvarez, supra, 229 Cal.App.4th at p. 764, 767.) As we explain, Alvarez is distinguishable because it involved the bad faith failure to preserve potentially useful evidence. Here, the court found, and substantial evidence shows, that there was no fraud or bad faith in the failure to preserve the hotel video.
In Alvarez, a robbery victim, Jose C., was approached in a parking lot by five Hispanic males; and one of the males, Renteria, snatched a gold chain worth $3,200 from around Jose C.'s neck. (Id. at p. 766.) Renteria and two codefendants, Cisneros and Alvarez, were charged with robbery. (Id. at p. 764.) At the preliminary hearing, Jose C. testified that Renteria and the two codefendants made threatening statements to Jose C. during the robbery, asking Jose C. "what he was going to do about" his gold chain being taken. (Id. at p. 766.) After the chain was taken, Jose C. followed the defendants and eventually flagged down a police vehicle. (Ibid.) The defendants were detained, and the gold chain was found during a search of the area. (Ibid.)
After the defendants were held to answer the robbery charges, Cisneros filed a motion to dismiss the robbery charge pursuant to Trombetta. (Alvarez, supra, 229 Cal.App.4h at p. 766.) Cisneros claimed that, while he, Renteria, and Alvarez were being detained near the scene of the alleged robbery, Cisneros denied involvement in the robbery and "pleaded" with a responding police detective, Wren, to" 'get the videos'" from surrounding surveillance cameras. (Ibid.) Cisneros told Wren that the videos would show that Cisneros and Alvarez" 'had no involvement'" in the robbery. (Id. at pp. 766-767.) Wren told Cisneros," 'If I had video cameras of what took place, that's part of my job. My job is not to arrest people that aren't guilty of something.'" (Id. at p. 767.) The motion further alleged that the Fullerton Police Department (FPD) maintained two cameras that covered the crime scene, but officers failed to review or preserve the "camera data." (Ibid.)
At an evidentiary hearing on the motion, it was revealed that the FPD maintained two cameras near the parking lot where the alleged robbery occurred; officers were aware that camera footage was available for a short time, but no "involved" officer sought to review any camera footage related to the alleged robbery. (Alvarez, supra, 229 Cal.App.4th at pp 767-768.) By the time Cisneros's attorney asked to review the footage, the footage had been overwritten. (Id. at p. 768.) Wren admitted he did not "take any steps to review video from the scene, either private footage or [local police department] footage." (Ibid.) A recorded conversation between Wren and Cisneros when Cisneros was being detained showed that Cisneros asked Wren to "check the cameras, dude!" and claimed he, Cisneros, had not done "anything." (Id. at pp. 768-769.)
Wren testified that, when he told Cisneros it was "his job" retrieve any existing camera footage, he was referring to the FPD as a whole, not to himself in particular, and he was not the investigating officer in the alleged robbery case. (Alvarez, supra, 229 Cal.App.4th at pp. 769-770.) According to Wren, the completion of the police report and the assignment of the case to an investigating detective was" 'in and of itself . . . a request to check for video.'" (Ibid.) In addition, in court two days after the alleged robbery, Cisneros's counsel asked" 'for anything he can get that might accomplish securing the video footage,' and . . . the prosecutor informed the court that the People were certain that no footage would be destroyed." (Id. at pp. 769, 777.) The People had" 'already requested'" that the videos" 'be held.'" (Id. at p. 777.)
In granting the dismissal motion, the trial court found that the defense had made a "sufficient request to maintain" the police department video footage, both on the night of the incident and at the subsequent court hearing. (Alvarez, supra, 229 Cal.App.4th at pp. 769-770.) The court implicitly found that the police camera footage was "potentially exculpatory" to the defense, and that Wren acted in bad faith in failing to look for and preserve the potentially exculpatory camera footage. (Id. at pp. 769-771; Youngblood, supra, 488 U.S. at p. 57-58.) The court noted that Wren was the "senior officer on the scene" and "knew there were cameras in the area. Cisneros specifically asked him to check the cameras." (Alvarez, at p. 770.) Thus, the court said it was" 'perplexed'" as to why Wren did not "immediately investigate further." (Ibid.) The court dismissed the robbery charges against all three defendants. (Id. at p. 771.)
On appeal by the People, the Alvarez court affirmed the orders dismissing the robbery charges against Cisneros and Alvarez. (Alvarez, 229 Cal.App.4th at pp. 769-770, 778.) Although the court concluded that Cisneros and Alverez did not show that the videos met the Trombetta standard of possessing "exculpatory value that was apparent before the evidence was destroyed" (Trombetta, supra, 467 U.S. at p. 489), the court "readily" concluded that videos met the "lesser" Youngblood standard of being" 'potentially useful'" to Cisneros and Alvarez (Alvarez, supra, 229 Cal.App.4th at p. 776). The videos were potentially useful because, although they may have shown that Cisneros and Alvarez aided and abetted the robbery, they may have also shown that the two codefendants had a "lesser degree of culpability," such as accessories, or that the robbery was "really a theft." (Id. at p. 775.) Thus, the videos were relevant to the codefendants' guilt and punishment. (Id. at pp. 774-775.)
The Alvarez court reversed the order dismissing the robbery charge against Renteria, who joined Cisneros's motion without supplementing the motion to show that the video had any apparent exculpatory value for, or was even potentially useful to, Renteria. (Alvarez, supra, 229 Cal.App.4th at p. 778.)
Additionally, substantial evidence supported the trial court's finding that Wren and the FPD acted in bad faith in failing to preserve the FPD video evidence. (Alvarez, supra, 229 Cal.App.4th at p. 776-777.) Both Wren, on the night of the offense, and the prosecution, at the initial court hearing, "acknowledged the potential usefulness of the video," and the prosecution was also "put on clear notice that obtaining any video from the parking lot was important to the defense." (Id. at p. 777.) Yet, the FPD and the prosecution "did nothing" to preserve the video, despite being "well aware of the potential usefulness of the video." (Ibid.)
Citing Youngblood, the Alvarez court noted that, "[i]f 'the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant' (Youngblood, supra, 488 U.S. at p. 58) and fail to preserve it, that shows bad faith" (Alvarez, supra, 229 Cal.App.4th at p. 777). The FPD's conduct was "disturbing" and showed bad faith. (Ibid.) Wren initially did not recall Cisneros asking him to watch any videos of the area, but when his recollection was refreshed with the recording of his conversation with Cisneros, "Wren disclaimed all responsibility to follow up on the video, and had no idea who the individual responsible for doing so might be," even though Wren told Cisneros it was" 'part of [his] job'" to review the video. (Ibid.) The FPD's conduct was "more than mere negligence"; it was "bad faith." (Ibid.) The bad faith conduct by the FPD, in failing to preserve the potentially useful video evidence in Alvarez, distinguishes Alvarez from this case.
4. Conclusion
In sum, defendant has not shown the hotel video had apparent exculpatory value for defendant when C.I. viewed it on May 13, 2021. (Trombetta, supra, 467 U.S. at pp. 488-489.) And, although the hotel video was "potentially useful" to defendant because it may have shown, with or without being enhanced, that defendant was not the male seen leaving the hotel parking lot in the Mercedes at 4:50 p.m., shortly before the shooting, defendant does not claim C.I. acted in bad faith in failing to preserve the video. (Youngblood, supra, 488 U.S. at pp. 58.) Further, the entire record supports the trial court's finding that there was no fraud or bad faith in C.I.'s failure to preserve the hotel video. Thus, the failure to preserve the hotel video did not violate defendant's due process rights under Trombetta or Youngblood. (Flores, supra, 9 Cal.5th at p. 394.)
C. C.I.'s Testimony Did Not Deprive Defendant of His Due Process Right to a Fair Trial
Defendant further claims that allowing C.I. to testify about the contents of the hotel video deprived defendant of "a meaningful opportunity to present a complete defense." "Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness," and this standard of fairness has long been interpreted "to require that criminal defendants be afforded a meaningful opportunity to present a complete defense." (Trombetta, supra, 467 U.S. at p. 485.) The due process rights of an accused in a criminal trial also include "[t]he rights to confront and cross-examine witnesses . . . ." (Chambers v. Miss. (1973) 410 U.S. 284, 294.)
A defendant who claims that relevant evidence should have been excluded on due process grounds "must sustain a heavy burden." (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) "As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept ofjustice. In order to declare a denial of it[,] we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. (Lisenba v. California (1941) 314 U.S. 219, 236.) The issue is whether "the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
Defendant argues that C.I.'s testimony about the hotel video was "a crucial piece of evidence" that the prosecution relied on to prove defendant was the shooter because the testimony "formed a critical link in the evidence between the car at the crime scene and the car on which [defendant's] prints were found." Thus, defendant argues his inability to cross-examine C.I., based on the hotel video's contents, rendered the trial fundamentally unfair. The entire record does not support this claim.
First, C.I.'s testimony was helpful to the defense. The defense used C.I.'s inability to describe the male in the hotel video to argue that F.F. and C.W. were the male and female in the hotel video, and that F.F. was the shooter. If the hotel video had been available, it may have shown that the male in the video was or could have been defendant. Without the hotel video, but with C.I.'s testimony, the defense was able to credibly argue that F.F. was the unidentified male in the hotel video and the shooter.
Defense counsel argued to the jury: "Now, let's talk about that Xola video that we didn't get to see. There was [C.W.] and an unknown male walking in and out of the hotel to the parked car in the parking lot. That was maybe some 20 minutes before the shooting. Now, what is very important is that Mercedes was stopped less than five hours after the shooting by law enforcement. And inside that vehicle were two people [C.W.] and [F.F.] Two people within five hours of the shooting. [¶] "[Defendant] is not in that car. There is no evidence that [defendant] was ever in that car. How do we know that the guy at the Xola hotel wasn't [F.F.] and the woman wasn't [C.W.]? There was some testimony about a fingerprint of [defendant] left on that car. Now it would be very important if the fingerprint was found on the steering wheel, on the front door handle, driver's door handle . . ., but she didn't tell you where the fingerprint was located because it is bad evidence. [¶] She wants to put [defendant] in the driver's seat. She didn't tell you who else's fingerprints was in the car. I mean F.F. was in the car. C.W. What does F.F. look like? Could [F.F.] have been the guy that did the shooting? There is just not enough evidence in this case to convince you beyond a reasonable doubt that the shooter was [defendant]." (Italics added.)
Although the prosecution suggested to the jury that defendant may have been the male in the hotel video, the prosecution's case did not rely on defendant being the male in the hotel video. Rather, the prosecution's case relied on J.M.'s multiple identifications of defendant as the shooter (to K.J. after the shooting, to an investigator two months after the shooting, and at trial), and on K.J.'s identification of defendant as the male seen in J.O.'s home surveillance video.
The prosecutor argued: "Members of the jury, we also heard that prior to leaving to go to the scene, one male got in the car. We also heard that male that got in the car, had been moving around the car for about 20 minutes prior to leaving, opening and closing the door. And the defendant's fingerprints were found. [¶] Members of the jury, this is not an ID case because we know who the shooter was. We know who tried to kill [J..M.] We have [J.M.'s] statements, [K.J.'s] identification through the video. We have the defendant's motive and the defendant's fingerprints on the getaway car that was seen at the scene.
In addition, the citywide videos, J.O's videos, and the photo of the impounded Mercedes showed that the impounded Mercedes, with defendant's fingerprint, was the same Mercedes that was driven to and from the neighborhood of the shooting, and that was seen driving on the street in front of J.M.'s and K.J.'s house shortly before the shooting. C.I.'s testimony that an older, white Mercedes was seen at 4:51. p.m., on May 3, 2021, was cumulative to Deputy M.H.'s testimony that the citywide videos showed an older, white Mercedes leaving the hotel parking lot at the same time. As noted, the defense used C.I.'s additional testimony that an unidentified male drove the Mercedes out of the hotel parking lot to its advantage to argue that F.F. was the unidentified male and the shooter.
C.I.'s testimony supported a weak inference that defendant was the male in the hotel video. C.I. did not identify the male in the video as defendant or indicate that the male in the hotel video resembled defendant. C.I. had no recollection of the clothing the male was wearing, and C.I. did not describe any of the male's physical features other than to say he was Hispanic. The male was around 200 feet from the hotel surveillance camera when the male could be seen walking outside around the white Mercedes. C.I. was even uncertain whether the male who got out of the Mercedes and walked toward the hotel was the same male who returned to the Mercedes and drove away.
To be sure, C.I.'s testimony helped link the Mercedes seen traveling to and from the crime scene in the citywide videos, and driving on the street in front of the crime scene in J.O.'s videos, to the Mercedes containing defendant's fingerprint. C.I.'s testimony corroborated the citywide videos and J.O.'s videos by showing that an unidentified male left the hotel parking lot in an early 2000's model, four-door, white Mercedes, at 4:51 p.m., on May 3, 2021, around 30 minutes before the 5:20 p.m. shooting. But C.I.'s testimony also showed that the unidentified male arrived at the hotel with an unidentified female, who was never identified as defendant's girlfriend, C.E. C.I.'s testimony suggested that the male and female in the hotel video were F.F. and C.W., the driver and passenger of the impounded Mercedes containing defendant's fingerprint.
Additionally, defense counsel thoroughly cross-examined C.I. concerning C.I.'s memory of the hotel video. The admission of C.I.'s testimony did not render the trial fundamentally unfair.
D. C.I.'s Testimony Did Not Violate the Secondary Evidence Rule
Defendant claims the admission of C.I.'s testimony concerning the contents of the hotel video violated the secondary evidence rule. (Evid. Code, § 1521.) We conclude that C.I.'s testimony did not violate the secondary evidence rule, and the trial court did not abuse its discretion in allowing C.I. to testify about the hotel video.
1. Legal Principles
Evidence Code section 1521 states the secondary evidence rule. (§ 1521, subd. (d) ["This section shall be known as the 'Secondary Evidence Rule.' "].) The statute states: "(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of a 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)." (§ 1521, subds. (a), (b).)
Evidence Code section 1523 provides: "(a) Except as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing. [¶] (b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original has been lost or is destroyed without fraudulent intent on the part of the proponent of the evidence." (§ 1523, subds. (a), (b).)
The purpose of the secondary evidence rule is to" 'minimize the possibilities of misinterpretation of writings by requiring the production of the original writings themselves, if available.'" (People v. Panah (2005) 35 Cal.4th 395, 475 (Panah).) The secondary evidence rule generally prohibits the admission of oral testimony to prove the content of a writing. (People v. Gonzalez (2021) 12 Cal.5th 367, 410-411.) A video is a writing for purposes of the secondary evidence rule. (Id. at p. 410.) We review a trial court's admission of evidence for an abuse of discretion. (Panah, at p. 475.)
The secondary evidence rule does not apply to testimony about the contents of a video where the video is played for the jury and the testimony explains what the video shows. (People v. Gonzalez, supra, 12 Cal.5th at pp. 410-411; People v. Son (2020) 56 Cal.App.5th 689, 696; People v. Mixon (1982) 129 Cal.App.3d 118, 130-131.) Here, however, the hotel video was not played for the jury, and C.I.'s testimony was offered as secondary evidence of the contents of the hotel video. As we explain, however, C.I.'s testimony did not violate the secondary evidence rule.
2. Analysis
Defendant claims that C.I.'s testimony about the contents of the hotel video did not qualify as" 'otherwise admissible secondary evidence,'" and was therefore inadmissible as the secondary evidence of the hotel video because there was a" 'genuine dispute'" about the contents of the hotel video, and C.I.'s testimony was "unfair." (Evid. Code, § 1521, subds. (a), (b).) The trial court did not expressly address these questions. Rather, the court expressly found that C.I.'s testimony was admissible because the hotel video was not "destroyed with any type of fraudulent intent." (See Evid. Code, § 1523, subds. (a), (b); see People v. Lucas (2014) 60 Cal.4th 153, 265 [discussing "former best evidence rule"], overruled in part on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 53.)
The trial court also implicitly found, and the entire record shows, that C.I.'s testimony about the contents of the hotel video was not "unfair" to defendant, and that justice did not require its exclusion. (Evid. Code, § 1521, subds. (a), (b).) First, the court found, and C.I.'s testimony showed, that the hotel video was not destroyed as a result of any fraudulent intent. (Evid. Code, § 1523.) Second, defense counsel thoroughly crossexamined C.I. concerning what C.I. saw in the hotel video, and C.I. did not identify defendant as the male C.I. saw in the hotel video. Third, defense counsel used C.I.'s testimony to argue that F.F. and C.W. were the unidentified male and female whom C.I. saw in the hotel video, and that F.F., not defendant, shot J.M.
For these reasons, the trial court did not abuse its discretion in allowing C.I. to testify about the contents of the hotel video, and the admission of C.I.'s testimony did not violate the secondary evidence rule. (Evid. Code, §§ 1521, 1523; People v. Meyers (2014) 227 Cal.App.4th 1219, 1226, fn. 1 [testimony of video's contents did not violate secondary evidence rule where detectives accidentally erased the video while attempting to copy it]; see People v. Hovarter (2008) 44 Cal.4th 983, 1012-1014 [copies of original invoices were admissible as secondary evidence of the originals, where the originals were destroyed in the normal course of business].) Further, there is no evidence that the original video was lost or destroyed with fraudulent intent on the part of the proponent of the evidence. (§ 1523, subds. (a), (b).)
E. Defendant's Determinate Abstract of Judgment Must Be Corrected
As the parties agree, the abstract of judgment for the determinate portion of defendant's sentence omits to state the number of years that the court imposed but stayed on count 2: the middle term of six ("6") years. The abstract of judgment also omits to state the number of years the court imposed but stayed on the personal use enhancement on count 2: four ("4") years. (§ 12022.5, subd. (a).) We order the trial court to correct the abstract. (People v. Armstrong (2019) 6 Cal.5th 735, 749, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
IV. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to issue a corrected abstract of judgment for defendant's determinate sentence, showing that, on count 2, the court imposed but stayed terms of six ("6") years for the conviction and four ("4") years for the personal use enhancement. The court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: RAMIREZ P.J., RAPHAEL J.
[*] Judge Perantoni presided at trial; Judge Johnson imposed judgment and sentence.