Opinion
A167731
12-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MARCEL DALON JACOBS, JR. Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 022200200)
BROWN, P. J.
Defendant Marcel Jacobs was convicted of two counts of robbery (Pen. Code, § 211), one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of possession of a firearm by a felon (Pen. Code, § 29800). The jury found true firearm enhancements (Pen. Code, § 12022.53, subds. (b) and (c)) and a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a).) Jacobs appeals, contending that the trial court erred by permitting a police officer to identify him as a person depicted in a surveillance video of the robbery, permitting officers to opine on the similarity of clothing depicted in the surveillance video and in photos on Jacobs' Instagram account, and permitting a detective to narrate part of the surveillance video. We affirm.
BACKGROUND
On September 25, 2021, Mark Robinson, the owner of a barbershop, was at the shop getting ready to cut his brother's hair when three males carrying firearms and wearing masks came in the front door. Robinson said that one man was tall and dark skinned, wearing a black North Face hoodie and carrying an AR-15 firearm. A second male was fat, wearing a white sweatshirt and carrying a pistol, and the third male was a "short dude," wearing a green sweater and carrying an AR-15 firearm.
Some witnesses described this piece of clothing as a sweatshirt, while others described it as a hoodie or sweater. We will refer to the piece of clothing as a white sweatshirt except when quoting witness testimony that used a different term.
The person wearing a black jacket said it was time to "tear it off." Robinson interpreted the comment to mean the men were there to rob him. Robinson described the male in the black jacket as going behind the cash register and taking a firearm hidden there. The male wearing a white sweatshirt put a gun to Robinson's face, and Robinson believed the male tried to shoot him, but the gun jammed. Robinson fought the men, who struck him about the face and body. They took Robinson's wallet, car keys, jewelry, three cell phones, and $300. Robinson suffered substantial injuries to his eyes and nose and lost his sense of smell. He could not identify any of the perpetrators.
The prosecution presented surveillance video from both inside and outside the barbershop as well as still shots from the videos. Several surveillance clips depicting different angles of the interior of the barbershop before, during, and after the robbery were played for the jury as Detective Perino, who was the primary detective assigned to investigate the robbery, narrated without objection. Perino described the person in the white sweatshirt pointing a gun at Robinson, firing the gun into the ceiling, and then hitting Robinson's face with the gun, although Perino acknowledged that he did not see a flash from the gun's discharge on the video. Perino described the person in the green sweater pointing a gun at Robinson's brother and taking belongings from him while the person in the white sweatshirt directed his gun toward Robinson. Perino also described surveillance video depicting the three suspects leaving the barbershop, getting into a Lexus, and driving away.
Discussing his investigation, Perino testified that he created an "[all points bulletin(APB)] flier" with still photographs from the surveillance video of the robbery and disseminated the flier to local law enforcement agencies to see if law enforcement could identify the suspects or Lexus. Officer Schmarzo from Oakland and another officer from San Leandro responded to his flier with information.
With Schmarzo's help, Perino tracked the Lexus seen in the surveillance video to an impound lot, where Perino discovered a white sweatshirt featuring a skeleton driving a pink Corvette in the trunk. When defense counsel objected and moved to strike Perino's testimony that, in a search of the Lexus' trunk, he located "the white sweater that the suspect was wearing" with its distinctive pink Corvette and skeleton on the back, the court stated, "I think the officer could say it appeared similar in all observable respects. I don't know that he can say it's the same sweatshirt." The court said it would "ask the jury to consider the testimony as the sweatshirt appeared to be the same or the - you can listen to any further description, but this officer can't say for a fact that it was the same sweatshirt."
Perino also testified that, in December 2021, he had another conversation with Schmarzo, and Schmarzo provided information about an Instagram account that he had identified as Jacobs' Instagram account. Perino got a search warrant for the Instagram account identified as belonging to Jacobs, and the prosecution asked, "And what, if anything, did you find as it pertained to your investigation from [the Instagram records obtained from the warrant]?" Perino responded, "So, the suspect in the white sweater, the similar looking sweater that I found located in the Lexus, had a distinct emblem on the front of it, as well. [¶] Within those Instagram records . . ., the individual was wearing the exact same white sweater. Well, I should say, similar white sweater with the emblem on it, as well." He also testified without objection that he saw the individual in the Instagram posts wearing "similar looking" grey Calvin Klein sweatpants to those worn by the assailant in the robbery surveillance video.
Schmarzo testified that when he saw Perino's APB flier on September 29, 2021, he recognized the Lexus described therein from an unrelated investigation. He clarified that the Lexus "was not the target" of the unrelated investigation, "but through the course of that investigation and surveillance, the Lexus had been seen." He identified one of the suspects in the flier - the man in green - as Taurus Johnson. Schmarzo knew Johnson well from "prior arrests," "music videos," "personal contacts," and "social media." Schmarzo also later identified the second suspect - the man in black - as Cuevas Reed; Schmarzo knew Jacobs by name, but he was not as familiar with Jacobs as he was with Johnson and Reed.
Schmarzo testified that he became "more familiar" with Jacobs over the course of his unrelated investigation between September 29, 2021, and October 20, 2021. According to Shmarzo, Jacobs was one of a number of men "associated" with the Lexus. Schmarzo did not know how many times he saw Jacobs in person, but he saw him "at least once" in the Lexus when Jacobs went to a Wing Stop restaurant while Schmarzo was conducting physical surveillance. He further became familiar with Jacobs' features through Instagram posts and music videos. Schmarzo explained that music videos are "really, really useful for identification because they tend to show multiple different perspectives of the person, that includes[: ] height, build, complexion. Even things that stand out like as far as gait and stature." Schmarzo monitored multiple Instagram accounts associated with Jacobs even after his unrelated investigation concluded.
On December 3, 2021, sometime after Perino had sent out another APB flier featuring more images of the third, not yet identified suspect in the robbery, Schmarzo identified Jacobs. Schmarzo testified that "after having familiarized [him]self" with Jacobs through the prior unrelated investigation, he had "an almost immediate recognition of" Jacobs when he saw the second APB flier. Schmarzo went back to Jacobs' Instagram and unearthed a photo and a video of Jacobs wearing the "same hoodie" as the person in the robbery. Defense counsel objected to the "same hoodie" testimony as lacking foundation, and the court stated: "[A]gain, folks, the witness can't say it's the exact same sweatshirt. I think his testimony is to be taken as, it [']appeared to be the same,['] or [']resembled['] the sweatshirt. [¶] You can elicit any further description, but I don't think anybody can say it's the same sweatshirt by looking at it." Defense counsel objected that" [']appears to be the same['] is functionally not much different from, [']it is the same.[']" The court overruled the objection, reasoning that "[t]he difference is whether it is in fact, the same sweatshirt, [or] whether it appeared to be the same. [']Appeared to be['] is appropriate."
Reviewing a portion of the barbershop surveillance video at trial, Schmarzo opined that Jacobs was the person in the video who wore the white sweatshirt. He testified that he was "very confident" in his identification. The court overruled defense counsel's lack of foundation objection and motion to strike Schmarzo's opinion.
When law enforcement responded to the robbery, there was a bullet hole in the ceiling and a shell casing under the couch at the barbershop. The white sweatshirt that police found in the Lexus' trunk was swabbed for DNA and compared to Jacobs' DNA. The prosecution's expert opined that the sweatshirt swab contained a mixture of four persons' DNA, and that it was 460 octillion times more likely that DNA from the 74 percent contributor originated from Jacobs than another person. The expert also analyzed a swab of blood on the front of the white sweatshirt and concluded that there were at least two contributors to the DNA, but Jacobs was excluded as a contributor. Based on her analysis, the expert opined that there were at least three other contributors who wore the sweatshirt, but she could not opine as to when or how many times each contributor wore the sweatshirt.
The remaining 26 percent of the mixture was contributed by three unknown persons.
After the jury convicted Jacobs, the court sentenced him to an aggregate term of 16 years, comprising a middle term of three years, doubled to six years due to a strike for the robbery conviction charged in count 1, with a consecutive 10 years for the firearm enhancement attached to that count (Pen. Code, § 12022.53, subd. (b)). The court imposed a concurrent middle term for count 2 and imposed but stayed sentencing as to counts 3 and 4 (Pen. Code, § 654).
DISCUSSION
This was an identification case. Jacobs argued below that the prosecution had not proven that he was the man in the white sweatshirt depicted on the robbery surveillance video, and his main contention on appeal is that the trial court erred in allowing Officer Schmarzo to identify him on the surveillance video. Jacobs maintains that Schmarzo had no knowledge of his appearance prior to the robbery or in the hours shortly thereafter, and Schmarzo's opinion was not helpful. Jacobs also challenges the admission of (1) Perino's opinion that both the suspect in the surveillance video and Jacobs in Instagram photos wore a sweatshirt similar to the one Perino found in the Lexus; (2) Perino's opinion that the suspect in the surveillance video wore pants similar to those Jacobs wore in pictures on Instagram; and (3) Schmarzo's opinion that, in Instagram pictures, Jacobs wore a white sweatshirt similar to that worn by the suspect in the surveillance video. Finally, Jacobs also appears to challenge Perino's narration of the surveillance video wherein he stated that the suspect in white discharged a gun at the ceiling. Jacobs essentially contends that these were all impermissible opinions of guilt because the foundational requirements for admitting opinion testimony as to identity were not met. As explained post, we disagree.
Our Supreme Court addressed the admissibility of an officer's lay opinion identification testimony in People v. Leon (2015) 61 Cal.4th 569 (Leon)). There, it held that" '[t]he identity of a person is a proper subject of nonexpert opinion ....'" (Id. at p. 601.) We review for abuse of discretion a court's admission of testimony identifying a person shown on a surveillance video or images. (See id. at p. 600.)
In Leon, the prosecutor played surveillance tapes from two robberies for a detective. (Leon, supra, 61 Cal.4th at p. 600.) The detective testified that he was" 'very'" familiar with the defendant's appearance, he had first seen the defendant when he was arrested the day after the second robbery, and he subsequently saw the defendant nearly 10 times and spent about two hours with him. (Ibid.) The detective observed the jacket that the defendant wore when arrested, and the detective testified that the person in one surveillance video was the defendant wearing the same jacket he wore when arrested. (Ibid.) The detective also testified that the jacket and baseball cap worn by the person depicted in the surveillance video of the other robbery, which occurred about two weeks before the defendant's arrest, looked similar to the jacket the defendant wore and the cap found in the defendant's car. (Id. at pp. 579, 582, 600-601.)
Our Supreme Court observed: "Court of Appeal decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs. In [People v. ]Perry [(1976) 60 Cal.App.3d 608, 612], the defendant argued an identification had to be based on the officer's perception of a crime. [Citation.] The court disagreed, finding it proper for officers to predicate their opinion on 'contacts with defendant, their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events.' [Citation.] The testimony was also helpful because the defendant had changed his appearance ....[Citation.] Similarly, the court in [People v. ]Mixon [(1982) 129 Cal.App.3d 118 (Mixon)] upheld identification of the defendant in a robbery surveillance photograph by officers who had numerous contacts with him and were unequivocal in their identification." (Leon, supra, 61 Cal.4th at p. 601.) In Mixon, the suspect was depicted in an unclear photograph with a ski cap covering much of his face. (Mixon, at p. 125.)
Leon rejected the defendant's argument that the detective's lay opinion testimony was inadmissible because the detective lacked contact with the defendant before the crime. (Leon, supra, 61 Cal.4th at pp. 600-601.) The court explained: "This is a distinction without a difference. It is undisputed [the detective] was familiar with [the] defendant's appearance around the time of the crimes. Their contact began when [the] defendant was arrested, one day after the . . . robbery. Questions about the extent of [the detective's] familiarity with [the] defendant's appearance went to the weight, not the admissibility, of his testimony. [Citation.] Other eyewitness testimony indicated [the] defendant had changed his appearance after the crime[ ].... Moreover, because the surveillance video was played for the jury, jurors could make up their own minds about whether the person shown was [the] defendant. Because [the detective's] testimony was based on his relevant personal knowledge and aided the jury, the court did not abuse its discretion by admitting it." (Leon, at p. 601.)
In People v. Larkins (2011) 199 Cal.App.4th 1059, 1061 (Larkins), the defendant was convicted of theft-related activity at numerous fitness clubs. One fitness club's loss prevention manager testified that he recognized the defendant in surveillance videos taken of two different thefts. (Id. at p. 1065.) The witness testified that he recognized the defendant because he had seen the defendant 20 to 30 times in theft-related videos obtained from other clubs and, at some point, he saw a driver's license and booking photo of the defendant; the witness, however, had never seen the defendant in person. (Id. at pp. 1065, 1068.)
On appeal, Larkins rejected the defendant's argument that the trial court abused its discretion by admitting the manager's identification testimony because the manager never saw the defendant in person. (Larkins, supra, 199 Cal.App.4th at pp. 1065-1066.) The court observed that the manager saw 20 to 30 videos of the defendant, "during which time he could observe such distinguishing characteristics as [the] defendant's posture, gait and body movements." (Id. at p. 1067.) The court also rejected the defendant's argument that reviewing photos of the defendant did not qualify as acquiring knowledge through personal observation. (Id. at p. 1068.)
The record here reflects that the proffered basis for Schmarzo's lay opinion identification testimony was his personal observation of: (1) photographs and several videos of Jacobs on his Instagram accounts in the weeks immediately following the robbery and continuing for two months thereafter; and (2) Jacobs himself at least once in the weeks following the robbery. Schmarzo's opinion did not have to be based on personal knowledge of Jacobs' appearance or contacts with Jacobs before the robbery. (Leon, supra, 61 Cal.4th at pp. 600-601.) Moreover, there was no suggestion that Jacobs had changed his appearance before trial, so the admissibility of Schmarzo's testimony did not hinge upon a showing that he had personal knowledge of Jacobs' prior appearance. (See Larkins, supra, 199 Cal.App.4th at p. 1067.)
Furthermore, although Schmarzo had at least one inperson observation of Jacobs, the bases for Schmarzo's lay opinion did not need to include in-person observations. (Larkins, supra, 199 Cal.App.4th at pp. 1067-1068.) Like the manager in Larkins, Schmarzo relied in part on videos and photographs, and there is no contention that these videos and images were not from Jacobs' Instagram accounts. The trial court could have concluded that Schmarzo acquired knowledge through his senses by personal observation. (Ibid.) Moreover, similar to Mixon, supra, 129 Cal.App.3d at page 125, the robbery surveillance video here did not clearly capture Jacobs' face because he wore a mask covering the lower half of his face. For this reason, the lay opinion testimony could aid the jury in determining the identity of the assailant. The trial court did not abuse its discretion in admitting the testimony.
The trial court similarly did not abuse its discretion in admitting Perino's opinion that the white sweatshirt with a distinct emblem on the front, which Perino personally observed in the Lexus' trunk, was similar to the sweatshirt worn by the suspect in the robbery surveillance video and the individual in Jacobs' Instagram photos. (Leon, supra, 61 Cal.4th at pp. 579, 582, 600-601 [approving admission of testimony identifying jacket that had been observed by the officer].)
Finally, by failing to raise an objection specific to the errors he claims on appeal, Jacobs forfeited his claims of error regarding
Perino's opinion testimony about the similarity of the Calvin Klein sweatpants and his narration of part of the surveillance video. The same is true for Schmarzo's testimony that the sweatshirt in Jacobs' Instagram post appeared to be the same sweatshirt as worn by Jacobs in the surveillance video.Recognizing the failure to object, Jacobs argues infective assistance of counsel. Given the video surveillance evidence, Robinson's testimony, the physical evidence (including Jacobs' DNA on the white sweatshirt found in the Lexus and the hole in the barbershop ceiling), and the properly admitted identification evidence, Jacobs cannot establish the requisite prejudice for such a claim. (Strickland v. Washington (1984) 466 U.S. 668, 697 [court may dispose of ineffective assistance claim on the ground of lack of sufficient prejudice].)
Defense counsel's objection to this specific testimony was that Schmarzo could not say that Jacobs was the person in the video.
DISPOSITION
The judgment is affirmed.
WE CONCUR: STREETER, J. GOLDMAN, J.