Opinion
A154982
10-16-2019
THE PEOPLE, Plaintiff and Respondent, v. CASEY BECK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mateo County Super. Ct. No. SF399708A)
Defendant Casey Beck appeals from a judgment of conviction, following a jury trial, of one count of felony taking a vehicle without the owner's consent (Veh. Code, § 10851) and one count of misdemeanor hit and run resulting in property damage (Veh. Code, § 20002, subd. (a)). The court also found true five special allegations of prior felonies. Defendant's appellate counsel has asked this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of judgment. (People v. Kelly (2006) 40 Cal.4th 106 (Kelly); People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel has also identified issues " 'in the record that might arguably support the appeal' " pursuant to Anders v. California (1967) 386 U.S. 738, 744: Did the trial court abuse its discretion in denying the defense motions to exclude a video taken from the victim's cell phone and "evidence relating to the photographic lineup?"
Defendant was notified of his right to file a supplemental brief but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
BACKGROUND
In June 2015, the owner of a black Volkswagen Jetta drove to her gym. After parking in the lot, she entered the gym and put her belongings, including her cell phone and car keys in a locker and went to work out. Upon her return, she found her locker open and her cell phone and car keys missing, and her car was gone from the lot.
Several days after the theft, a witness was pumping gas when he heard a nearby car crash. Upon arrival at the crash scene, the witness saw defendant get out of the driver's side of a black Volkswagen Jetta. Defendant was yelling obscenities and said, " 'I need to get the fuck out of here.' " Another vehicle then pulled up and the female driver said to defendant, " 'Babe, get in the fucking car. Let's go. Let's go. Let's go.' " Defendant got in the other car and left the scene. The witness described defendant as White or Hispanic and said he was " 'thug like,' " because of the way he was dressed. Inside the Jetta, police found receipts, the car's license plate, the victim's cell phone, and various other items, which led police to defendant. The police also recovered a video and still photographs on the victim's cell phone which showed defendant.
Following a preliminary hearing, defendant was charged in a two-count information with one count of felony driving or taking a vehicle without consent after a prior conviction for the same offense (Veh. Code, § 10851; Pen. Code, § 666.5) and one count of misdemeanor hit and run resulting in property damage (Veh. Code, § 20002, subd. (a)). The information also alleged defendant had five prior felonies.
Prior to trial, both the prosecution and defense made multiple motions in limine to exclude evidence. Over defendant's objection, the trial court ruled it would permit the prosecution to introduce evidence of how defendant's picture came to be included in the photo lineup shown to the witness and to introduce a video and photographs taken from the victim's cell phone.
Lineup Evidence
California Highway Patrol Officer Michel Sarabia used a receipt found in the car to track down the woman who had made the purchase. She had used a different victim's credit card to make the transactions, but had entered her own Walgreen's "frequent shopper card number." Officer Sarabia contacted the Walnut Creek Police Department and learned she was a known associate of defendant.
Officer Sarabia then gave defendant's name and date of birth to Officer Karl Steinkraus in order to obtain a photograph of defendant to be used in a lineup. Officer Steinkraus created a six-person lineup, which was presented to the witness. The witness identified defendant as the person he saw getting out of the Jetta. The witness also later identified defendant in court.
The People sought to introduce evidence relating to the photograph lineup, specifically "Officer Sarabia's investigation explaining the background information that caused the defendant to be placed in a photo lineup." Defendant moved to exclude this evidence, asserting it was inadmissible because it lacked a proper foundation, was hearsay, was irrelevant and more prejudicial than probative. Additionally, defense counsel requested an Evidence Code section 403 hearing because of the lack of foundation that defendant and the female associate were associated "and any evidence that [the female associate] is responsible for vehicle thefts or credit card fraud."
At the hearing on the motion to exclude, defense counsel reiterated the evidence was hearsay and lacked foundation and further asserted the evidence was "a way to backdoor propensity evidence of criminal conduct." The court ruled it was not hearsay. Nor was a foundation needed as to whether the female associate actually knew defendant or had actually committed any crimes because the evidence was only being "introduced to explain why the investigation went in the direction that got [defendant's] picture in the lineup" and was not offered for the truth.
With respect to defendant's Evidence Code section 352 objection, the prosecution maintained the testimony would not take an undue consumption of time and further stated the female associate's Walgreens "frequent shopper card number" was used to locate her and there was "nothing prejudicial about [this] sanitized version of the investigation." Indeed, counsel would not be "attributing any crime to [the female associate]."
The court agreed a "somewhat sanitized version" of events leading up to defendant's placement in the lineup was relevant and not overly prejudicial. Defense counsel then asked for a stipulation on what would be "provided in the case-in-chief." The prosecution agreed to use leading questions with Officer Sarabia to "ensure only evidence that we have talked about is admitted," and to share the questions he would ask him with defense counsel beforehand. Once the questions were turned over to defense counsel, counsel successfully argued to the court that any reference to the name of defendant's associate should be "sanitized" as well.
Video on Victim's Phone
Prior to trial, the People also moved to admit evidence of the video and photographs found on the victim's cell phone. The video showed "the make of the vehicle," "the fact that the vehicle is a sedan," "evidence that the vehicle is stolen" because the audio picked up "voices saying the car was 'hot,' " and evidence defendant was present because "defendant's tattoos in the photos and videos authenticates that it is the defendant in the video."
Defendant moved to exclude testimony from the victim "about videos and/or still photos on her iPhone allegedly identifying" defendant because the video lacked proper foundation. Specifically, counsel asserted there was no evidence showing defendant was driving the victim's car, no evidence "supporting the assertion [defendant] possessed [the victim's] iPhone or was inside her vehicle when the video was made" because the video and photos "do[] not show the make, model, color, size, license plate, or VIN of the car."
At the hearing on the motion, the court ruled that assuming the victim testified to "proper authentication of the car, the phone, et cetera, it does appear to me that there is sufficient evidence to allow the jury to consider whether the person on the still shots is the defendant [and] whether the person in the videos is the defendant." The court noted the video was "less distinct" but determined it nevertheless was relevant. The court limited the officer's testimony regarding what the term "hot" meant, ordered parts of the video redacted to omit reference to the female on the video talking about credit cards, forgeries or crimes related solely to her, and instructed the jury to disregard any omissions.
After close of evidence and closing statements, the trial court duly instructed the jury. The jury returned a guilty verdict as to counts 1 and 2. The trial court, in a bifurcated proceeding, found true defendant's five priors. The court sentenced defendant to the midterm of three years doubled pursuant to Penal Code section 1170.12, subdivision (c)(1) for a total of six years as to count 1, to time served as to count 2, and stayed imposition of sentence on the priors.
Defendant filed a timely appeal.
Defendant was at all times represented by competent counsel, who zealously guarded his rights and interests.
We have reviewed the complete record and have found no arguable issues requiring briefing, including those issues raised under Anders.
The court did not abuse its discretion in admitting the evidence of how the photo lineup was created or in admitting the video and photographs. (People v. Williams (1997) 16 Cal.4th 153, 197 [trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion].) Officer Sarabia's testimony was relevant and not offered for the truth of the matter asserted but merely to show why defendant's picture was included in the lineup. The video was also relevant, and the victim identified her phone which contained the video and her car, which was pictured in the video. The video showed defendant's tattoos and the witness identified him both in court and in the lineup as the man exiting the driver's side of the Jetta. Further, the court omitted irrelevant or prejudicial parts of the video and instructed the jury on the omissions.
DISPOSITION
Pursuant to Wende, supra, 25 Cal.3d 436 and Kelly, supra, 40 Cal.4th 106, we have independently reviewed the entire record and have found no arguable issues on appeal. The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Sanchez, J.