Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Los Angeles Superior Court. No. MA035586, Martin L. Herscovitz, Judge.
Linn Davis, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Respondent.
BIGELOW, J.
Maurice Butler claims an evidentiary error requires reversal of his conviction for petty theft with priors. (Pen. Code §§ 484, subd. (a), 666.) We find no error and affirm.
All section references are to the Penal Code.
FACTS
On May 10, 2006, Victor Escalante, the assistant manager of a Big Lots in Palmdale, was working inside the store and greeted a man with several large items in his cart, including an inflatable boat and an ice cream machine. A few minutes later, the store alarm sounded, which meant someone had taken an item out of the store without paying for it. Mandi Roberts, the store’s bookkeeper, was working near the front of the store and saw the same man walk out with unbagged merchandise. Surveillance video at the store also shows him leaving without paying. Roberts followed him outside and Escalante joined her a few moments later. Escalante and Roberts watched him load the items, including the inflatable boat and ice cream machine, into the back of a blue SUV. A Caucasian man sat in the driver’s seat of the car. Escalante and Roberts did not confront the men but Roberts wrote down the SUV’s license plate number.
Detective Brian Torsney was assigned to investigate the Big Lots theft. From the license plate number Roberts wrote down, Torsney identified the owner of the SUV as James Cowan. Approximately two weeks after the theft, Torsney went to Cowan’s residence and met Butler, who identified himself as Cowan’s brother-in-law. He told Torsney that Cowan was not home. Torsney saw Butler again about two weeks later; he was with a Caucasian man in the same blue SUV. Torsney did not approach the men at that time however because he was investigating another crime and did not have the files for the case with him.
After these encounters, Torsney viewed the surveillance video from Big Lots and recognized the man on the videotape as Butler. Torsney prepared a photographic lineup using Butler’s DMV photograph as one of the pictures. When Torsney showed the photographs to Escalante and Roberts, neither of them recognized any of the men in the photographic array. However, Escalante identified Butler on the surveillance video when he viewed it.
Butler was charged in an information with one count of petty theft with a prior. (§ 666.) The information also alleged that Butler had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had suffered six prior convictions for which he had served a prison term (§ 667.5, subd. (b)). At trial, both Escalante and Roberts identified Butler as the man who robbed the Big Lots store. Over Butler’s objection, Torsney identified Butler as the man in the surveillance video.
The defense presented testimony by Butler’s mother that Butler had multiple tattoos covering his arms at the time of the theft. Among other things, defense counsel argued in closing statements that Butler could not be the man in the video because that man did not appear to have tattoos on his arms.
The jury found Butler guilty of petty theft. (§ 484, subd. (a).) Butler waived his right to a jury trial on the prior conviction allegations and the trial court found true one of the prior strike convictions and all of the prior prison terms. Butler was sentenced to an aggregate term of nine years in state prison.
The trial court sentenced Butler to the midterm of two years for the petty theft with a prior, which was doubled pursuant to the Three Strikes Law, for a total of four years. (§§ 667.5, 1170.12.) The court then struck the oldest prior conviction and imposed consecutive one-year sentences for each of the five other prior convictions, for a total of five additional years. (§ 667.5, subd. (b).)
DISCUSSION
Butler contends the trial court erred in admitting Torsney’s lay opinion testimony that he was the man in the video because Torsney had no contact with him prior to the crime. We disagree.
I. Waiver
We first consider whether Butler has preserved this issue for appeal by making the objection below. The well-settled rule in California is a party waives the right to complain that evidence was erroneously admitted if he fails to make a timely objection at trial. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 19-21.) While no particular form of objection is required, the objection must adequately alert the trial court to the nature of the anticipated evidence and the specific basis on which exclusion is sought. (Ibid.)
Here, Butler objected to the admission of Torsney’s testimony as follows:
“Q. In looking at the video, you said you saw Mr. Butler; correct?
A. Yes.
Q. How do you know it was Mr. Butler?
[Defense Counsel]: Objection. That’s call for a – for the witness to make an ultimate identification.”
At sidebar, defense counsel clarified his objection:
“[Defense Counsel]: The objection is that the evidence speaks for itself. His opinion of who that is his opinion, and it’s – he’s in effect usurping the province of the jury by telling them that this is him. Whether or not he thinks it’s Butler is irrelevant in the video.
The Court: Are you saying he could see as much as I could see in the picture or the court reporter or anyone else?
[Defense Counsel]: Yes.”
Having objected at trial on the ground that Torsney’s testimony was irrelevant and usurped the jury’s fact finding power, Butler may not now argue it is inadmissible lay opinion testimony. Butler’s motion for new trial similarly failed to preserve the issue for appeal. After the jury returned its verdict, Butler submitted a motion for new trial on the same ground: “[t]he court erroneously allowed LASD Detective Torsney to testify that the two persons shown in the store video were defendant Butler and James Cowan; thereby, usurping the fact finding function of the jury[.]” Accordingly, Butler has forfeited this argument.
To the extent Butler argues Torsney’s testimony identifying Cowan as one of the men in the surveillance video is inadmissible, that argument is also forfeited. Defense counsel made no objection to the identification of Cowan when that testimony was introduced. (§ 353, subd. (a); People v. Warrick (1967) 249 Cal.App.2d 1, 3; People v. Demetrulias, supra, 39 Cal.4th at pp. 19-21.)
II. Admissibility of Lay Opinion Testimony
Even if the issue had not been forfeited, we find the trial court did not abuse its discretion by admitting Torsney’s testimony. (People v. Mixon (1982) 129 Cal.App.3d 118, 127 (Mixon).) Lay opinion testimony is admissible if it is “rationally based on the perception of the witness” and “helpful to a clear understanding of his testimony.” (Evid. Code, § 800.) Thus, individuals who are not witnesses to a crime may identify defendants from photographs and video surveillance if they have prior personal knowledge of the defendant. (People v. Perry (1976) 60 Cal.App.3d 608, 611-613 (Perry): People v. Ingle (1986) 178 Cal.App.3d 505, 513-514.) Identification testimony by these non-percipient witnesses can enhance the jury’s understanding of a defendant’s identity, especially when the defendant’s appearance changes between the time of the crime and trial. (Mixon, supra, 129 Cal.App.3d at p. 127; Perry, supra, 60 Cal.App.3d at p. 613.)
Butler argues that Perry and Mixon require the identification testimony of a non-percipient witness be limited to those individuals who had contact with the defendant prior to the crime. We disagree. Although the non-percipient witnesses who identified the defendant in videos and photographs in Perry and Mixon based their testimony on their contacts with the defendant before the crime, we do not believe the Perry and Mixon courts intended to so limit the admissibility of these witnesses’ testimony. In Perry, “[e]vidence was introduced that defendant, prior to trial, altered his appearance by shaving his mustache. The witnesses were able to apply their knowledge of his prior appearance to the subject in the film. Such perception and knowledge was not available directly to the jury. The opinions of the witnesses were sufficiently based upon personal knowledge to permit their introduction; the question of the degree of knowledge goes to the weight rather than to the admissibility of the opinion. [Citation.]” (Perry, supra, 60 Cal.App.3d at p. 613.)
Likewise, Torsney’s perception and knowledge of Butler’s appearance two weeks after the theft was not available directly to the jury without his testimony. That he only saw Butler twice after the crime occurred goes to the weight rather than the admissibility of the testimony. Indeed, the trial court expressly instructed the jury to consider whether “the witness [knew] or [had] contact with the defendant before the event” in evaluating identification testimony.
Butler further argues police officer testimony was prejudicial in that “[t]here is a strong likelihood that reasonable jurors would consider such a witness to be an ‘expert,’ who knew more than they, to resolve any doubt raised by the defense in favor of guilt.” According to Butler, this raises due process concerns because weak witness testimony is substituted with police officer “expert” testimony. This issue was specifically addressed in Mixon, supra, 129 Cal.App.3d at page 134. There, the Fifth District adopted the federal approach to law enforcement identification testimony: “ ‘. . . use of lay opinion identification by policemen or parole officers is not to be encouraged, and should be used only if no other adequate identification testimony is available to the prosecution.’ ” (Ibid, italics omitted.) However, the Mixon court cautioned, “This opinion should not be interpreted to stand for the proposition that if nonlaw enforcement testimony is available, law enforcement identification testimony must be excluded. The trial courts, in weighing possible prejudice, must determine if the nonlaw enforcement testimony available is ‘adequate.’ The prosecution should not be forced to rely on testimony that is weak simply because it comes from an individual not involved in law enforcement. The trial judge maintains the discretion to determine if the prejudicial effect of the officer’s testimony substantially outweighs its probative value (Evid. Code, § 352), and such a discretionary ruling will be overturned only if there is a clear abuse of discretion.” (Mixon, supra, 129 Cal.App.3d at pp. 134-135.) We find no such abuse of discretion by the trial court in this case.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.