Opinion
H046417
02-17-2021
THE PEOPLE, Plaintiff and Respondent, v. BREWSTER PHELPS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1760151)
Brewster Phelps was convicted of attempted murder and two counts of assault for beating and shooting a man. The shooting was captured by surveillance cameras, and cell phone videos of a monitor displaying the surveillance footage were admitted in evidence. Defendant argues the trial court erred by admitting the cell phone videos, and that trial counsel was constitutionally ineffective for failing to call an expert witness in eyewitness identification. For the reasons stated here, we will affirm the judgment.
I. BACKGROUND
Defendant and two others beat a man in a strip mall parking lot adjacent to a sports bar and a pizzeria. Defendant entered the bar where the victim had retreated. In the midst of several patrons, he fired a gun at the victim, striking the victim's thigh and clavicle. Defendant was charged with attempted murder (Pen. Code, §§ 664, 187; count 1), assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 2), and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The information alleged defendant committed count 1 willfully, deliberately, and with premeditation (Pen. Code, §§ 664, 187, 189) and that he personally and intentionally discharged a handgun causing great bodily injury. (Pen. Code, § 12022.53, subd. (d).) The information also alleged defendant personally used a handgun (Pen. Code, § 12022.5, subd. (a)) and inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) in committing count 2. Defendant's accomplices were identified as his sister and Turo Collins. Collins was charged with assault (Pen. Code, § 245, subd. (a)(4)), but he died for reasons unrelated to this case and was never tried for the offense. The parties stipulated at trial that Collins was the man seen in the surveillance footage inside the bar "with a backward hat with a star on it." Defendant's sister was subpoenaed by the prosecution but failed to appear at trial. Her identity was not revealed to the jury.
Trial Evidence
Surveillance footage from the bar and the pizzeria was admitted in evidence. The bar's surveillance system consisted of six inside cameras plus cameras trained on the front and back entrances. Law enforcement extracted 20 minutes of footage starting at 10:35 p.m., and the footage was admitted as People's Exhibits 1 and 2. The footage showed defendant and Collins at 10:35 p.m. engaging the bartender and another patron in conversation. Collins was wearing the "star" cap and defendant was wearing a distinctive "San Jose" inscribed white cap with a black bill. A female wearing a white tank top arrived within a few minutes, and the three appear animated and jovial. The manager arrived a few seconds later. He greeted defendant, Collins, and the female with handshakes and hugs, and he sat down at the bar next to the trio.
The surveillance system also captured Richard and three females socializing and playing pool in the rear of the bar with the victim (identified by a jersey he was wearing displaying the number 12 on the back) and a fourth female. The victim and his companion (the fourth female) exchanged goodbyes with Richard and his group before leaving the bar at 10:47 p.m.
We refer to this witness by first name in the interest of protecting privacy. (Cal. Rules of Court, rule 8.90(b).)
Police investigators did not extract the electronic footage of the shooting, which occurred inside the bar shortly after 11:00 p.m. But the manager took two videos on his cell phone capturing the surveillance footage from different channels displayed on a monitor. Those videos, which were shaky and of inferior quality compared to the electronic footage, were admitted as People's Exhibit 3. The victim was shown in the first video entering the bar through the rear entrance. The victim appeared upset, and was speaking with Richard when defendant entered the bar and fired his gun in the victim's direction. The second video captured the victim and Richard talking, and defendant shooting his gun at the victim who ran out the front door. The second video also showed the victim on a different channel running into the front parking lot followed by defendant.
The pizzeria had four outside security cameras. The front camera was trained on the walkway extending from the pizzeria to the bar, two cameras captured the back parking lot (one of which showed the back entrance to the bar), and a fourth camera monitored the side parking lot. Footage from that system starting at 11:00 p.m. was admitted as People's Exhibit 4. The footage showed a car drive into the back parking lot at 11:01 p.m. The victim (identified by his clothing) got out of the passenger side, entered the bar, and returned to the car with one of Richard's female companions who approached the driver's side window for what appears to be a brief conversation. The car drove away and returned to the same location about 90 seconds later, when the victim got out of the car a second time and walked around the building as the car left. The front walkway camera showed the victim step from the front walkway into the parking lot and out of the camera's view.
Thirty seconds later, the front walkway camera captured the female with the white tank top entering the bar from the front parking lot. A few seconds later, the female and defendant are seen leaving the bar and running toward the side parking lot. The victim was then captured on the side parking lot camera, as defendant, Collins, and the female chased him around the corner. The three overtook and beat the victim for nearly a minute with their fists and an object. The victim is then seen from the rear parking lot camera walking toward the bar, followed by the trio. As the victim entered the bar, Collins returned to the beating site where he picked up objects, and the female and defendant walked toward a car in the far corner of the rear parking lot. The female turned back and walked around the building where she joined Collins. The two walked toward a van in the front parking lot and out of the camera's view, as defendant walked from the car across the back parking lot and into the back of the bar. The front walkway camera captured the victim leaving the bar 15 seconds later, followed by defendant. The side building camera then showed defendant joining Collins and the victim, who had fallen. The female drove up in the van and briefly interacted with Collins and defendant. Defendant then returned to the bar, the female drove away, and Collins stayed with the victim. Twenty seconds later, the back parking lot camera captured defendant leaving the bar and driving away in the car. Collins stayed with the victim for another 90 seconds until another car arrived. He helped the victim into the car, and left the area on foot.
The manager testified that his girlfriend owned the bar, he was there to close for her that night, and he sat next to Collins, the female, and the man he later identified as defendant "until we were going to close the bar." He viewed People's Exhibits 1 and 2 (the bar's surveillance videos) and People's Exhibit 3 (the cell phone videos). He identified himself in the videos, testified that the surveillance videos accurately depicted what was happening in the bar before the shooting (even though "sometimes" the time stamp on the surveillance system was not accurate and did not hold when there was a power interruption), and that the shooting was accurately captured by the cell phone videos. He testified that the shooter and the man with the white hat in the surveillance videos were the same person, and he identified that person in court as defendant.
Richard testified that he was at the bar with his girlfriend, his goddaughter, and his goddaughter's friend when the shooting occurred. The victim entered the bar "bleeding all over the place"; he did not have a weapon; he may have been the same man Richard had been playing pool with earlier; and he was upset and asked Richard why he did not help him. Richard testified that "another individual" entered the bar, discharged a firearm, and the victim ran out the front. The shooter "kept shooting as he went through" the bar and out the front, and Richard was struck on the right side of his head with the gun's grip. Richard testified that the shooter came back through the front yelling " 'You didn't see nothing. You don't know nothing,' " and left out the back. Richard identified himself in the surveillance footage playing pool, and in both cell phone videos. He testified on cross-examination that the victim was in the bar before the shooting but he was not the man Richard had played pool with. On redirect he acknowledged telling the police that he and the victim had " ' "just played a round of pool." ' " Neither party asked Richard whether he could identify defendant as the shooter.
Richard's girlfriend testified that she was at the bar with Richard and two friends. She heard shots, was pushed to the floor by a friend, stayed there until "everything was over," and called the police. She testified that she did not see the shooter, did not remember seeing the shooter, and did not have her glasses on that night so "everything is just a blur." One of the friends testified that she was in the bar that night, but she was intoxicated and did not remember anything.
The victim testified that he remembered being at the bar at some point that night, but he had been drinking a lot, and "Everything is blurry. I don't remember much. You know, just bits and pieces of that day." He identified himself in both videos in People's Exhibit 3, and in photographs depicting his injuries at the hospital. But he did not remember "getting to the hospital or nothing." The night was "just a blur," and he did not recognize defendant as the man who shot him.
The victim's then-girlfriend testified she returned to the bar after receiving a call that there had been a shooting. She watched the pizzeria's surveillance video showing the victim getting into a car after the shooting, and recognized it as when she picked up the victim to take him to the hospital.
Verdict and Disposition
A jury found defendant guilty on all counts, and found true the gun use and great bodily injury allegations. It found the allegation not true that defendant acted willfully, deliberately, and with premeditation. Defendant was sentenced to 25 years to life consecutive to 10 years, composed of the upper term of nine years on count 1, with a consecutive 25-years-to-life term for the gun enhancement, and a one-year consecutive term for count 3. Defendant's sentence for count 2 (a four-year upper term plus 10 years for the gun enhancement and three years for the great bodily injury enhancement) was stayed under Penal Code section 654.
II. DISCUSSION
A. CELL PHONE SURVEILLANCE VIDEOS
Defendant argues the cell phone videos were admitted into evidence without sufficient foundation. In response to the prosecutor's in limine proffer that the manager "pulled the footage up, used his cell phone to record the footage, and then provided that to the detectives," and that witnesses would testify to the videos' accuracy, defendant contended that the manager would have to testify to how he took the videos and turned them over to the police. The trial court observed that there is no set way to lay a foundation, and ruled the videos would be admitted assuming a proper foundation was laid.
At trial, Richard watched both videos on People's Exhibit 3. Richard identified himself and two companions in the first video, and he testified that the video accurately captured the shooting he had just described. He identified himself, the victim, and the shooter in the second video, and he testified that the video accurately showed what happened that night. The bar manager also viewed both videos on People's Exhibit 3. He identified himself in both videos, and testified that both videos accurately showed the shooting. People's Exhibit 3 was then admitted in evidence without objection.
Authentication
Evidence Code section 250 defines a videotape as a writing. A writing must be authenticated to be received in evidence. (Evid. Code, § 1401.) Authentication requires "sufficient evidence for a trier of fact to find" that the video recording "is what it purports to be, i.e., that it is genuine for the purpose offered." (People v. Goldsmith (2014) 59 Cal.4th 258, 267; see also Evid. Code, § 1400.) Conflicting inferences that may be drawn regarding authenticity go to weight, not admissibility. (Goldsmith, at p. 267.) The proof required to authenticate a video recording "varies with the nature of the evidence that the ... video recording is being offered to prove and with the degree of possibility of error." (Ibid.) Typically, a video recording is "authenticated by showing it is a fair and accurate representation of the scene depicted." (Ibid.) "This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location. [Citations.]" (Id. at p. 268.) We review the trial court's admission of evidence over an authentication challenge for abuse of discretion. (Id. at p. 266.)
Defendant argues that authentication requires witnesses to testify to the date the video was made, the accuracy of the date or time stamp, the location of the recording equipment, and the location being recorded. He cites no authority requiring such particular information, and we are aware of none. Indeed, the well-settled law allows a person who witnessed a recorded event to authenticate the recording. (People v. Goldsmith, supra, 59 Cal.4th at p. 268.) The manager may not have recalled creating the videos or providing them to law enforcement, but he and Richard testified as to the accuracy of the videos (which, unlike the electronic footage, did not contain visual time stamps), and no evidence was presented to suggest the videos did not fairly depict the shooting.
Evidence Code section 356 provides, "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party." Section 356 is intended "to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) Defendant argues that the "rule of completeness" prohibits the admission of the cell phone videos. He argues the videos captured footage from certain cameras to the exclusion of the other cameras; thus, without the manager's input as to how he created the videos, the footage is tantamount to hearsay. He argues that the surveillance video in its complete form could have been exonerating, and that the unavailability of the electronic footage of the shooting usurped his right to a defense.
Defendant has forfeited these arguments by not objecting in the trial court. Further, he provides no evidence—nor is there any in the record—that the prosecution excluded portions of the videos. There is also no indication that the videos were misleading. To the contrary, witnesses testified that the videos accurately depicted the shooting. Defendant provides no authority for his hearsay argument, and the record is devoid of any evidence that the prosecution destroyed evidence or impeded defendant's right to present a defense.
Chain of Custody
A party offering demonstrative evidence has the burden to show to a reasonable certainty that the evidence offered is in fact the evidence from the crime scene and that it has not been substituted or tampered with since it was collected. (People v. Riser (1956) 47 Cal.2d 566, 580, overruled on another ground in People v. Morse (1964) 60 Cal.2d 631.) "The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received." (People v. Williams (2014) 48 Cal.3d 1112, 1134.) "[T]he trial court decides the admissibility of physical evidence based on challenges to the chain of custody, and, once admitted, any minor defects in the chain of custody go to its weight." (People v. Lucas (2014) 60 Cal.4th 153, 285.) We review the admission of evidence over a chain of custody objection for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 134.)
The manager testified that he knew how to access and review the bar's video surveillance using a password, and he "normally [] take[s] a video/screenshot [to] remember what's going on." He "might have" taken cell phone footage of the surveillance monitor, but he did not remember making the videos because it had been two years and he no longer had the phone he used then. He also did not remember the police asking him for additional surveillance footage. But the detective who collected the cell phone videos testified that the manager told him that "he [the manager] had taken cell phone video of the surveillance footage that occurred inside the bar," and the detective collected that video evidence from the manager when they met. The detective explained that he received two video files, with shaky footage showing the shooting inside the bar. (The detective testified at the preliminary hearing that the videos were uploaded to the digital crime scene database, and "at that point there is no access, at least I can speak for myself or a standard officer, to tamper with it or modify it in any way.") Nothing in the record suggests the cell phone videos were tampered with while in police custody, or that the surveillance footage itself had been tampered with before the cell phone videos were taken. The requirement of reasonable certainty has been met.
B. EYEWITNESS IDENTIFICATION EXPERT
Defendant argues that trial counsel rendered ineffective assistance and deprived him of due process by failing to call an expert on eyewitness identification "to help the jury unpack the complexity of cross-racial eyewitness identification." Defendant argues that the manager's eyewitness identification of defendant as the shooter was unreliable because "the only interaction [the manager] had with the shooter was the split second he had between looking at the [victim] and hearing the first shot being fired"; the prosecution exerted pressure on the manager to testify; and as a result of that pressure, his identification "was clouded and compromised by a vague understanding of the identity of the man who fired shots in his bar."
An ineffective assistance claim requires a showing both that counsel's performance fell below an objective standard of reasonableness and that defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) "Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) If the record on appeal "sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation' [citation], the case is affirmed [citation]." (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To prove prejudice, a defendant must affirmatively show a reasonable probability of a more favorable result but for trial counsel's errors. (Ledesma, at p. 746.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)
Defendant inaccurately describes the record when he asserts that the manager's only interaction with the shooter was the split second in which he witnessed the shooter fire his first shot. At trial, the manager identified the shooter as the man with the white cap shown in the bar's surveillance video from earlier that evening. The prosecutor paused the second video on People's Exhibit 3 on an image of a person wielding a handgun and asked if that was the shooter. The manager responded, "I ran out of the door at the time he came in." The following colloquy ensued: "Q. All right. And you watched the surveillance video[,] right? [¶] A. Yeah. [¶] Q. You watched this video? [¶] A. Yeah. [¶] Q. And did you see the video of you earlier in the night at the bar? [¶] A. Yeah. [¶] Q. With the man with the white hat? [¶] A. Yeah. [¶] Q. Okay. Is that the same man? [¶] A. Yeah. [¶] Q. Okay. Do you see him in court today? [¶] A. Yeah." The manager then identified defendant.
The bar's surveillance video (People's Exhibits 1 and 2) shows 20 minutes of footage before the assault occurred. The manager is seen entering the bar about four minutes into the footage. After greeting other customers, the manager greeted defendant, Collins, and the female with handshakes and hugs, and he sat at the bar next to them for another 14 minutes. The trio conversed with the manager and the bartender, and the female took pictures on her phone, including at least two with Collins and the manager. Sixteen minutes into the footage, defendant sat down next to the manager and the two engaged in conversation. The manager also testified that defendant, Collins, and the female were "regulars" at the bar, and he had seen them before. In light of the manager's lengthy interaction with defendant shown on People's Exhibits 1 and 2, and his previous familiarity with defendant, trial counsel may have reasonably assessed that an eyewitness identification expert would not have assisted the defense.
Defendant's sole authority, People v. McDonald (1984) 37 Cal.3d 351, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, is inapposite, as it addressed expert testimony on eyewitness identification in the context of a " 'conviction[] based solely on testimony that identifies a defendant previously unknown to the witness ... [and] unsupported by corroborating evidence.' " (McDonald, at p. 363.) Here, defendant was not previously unknown to the manager, and defendant's identification as the shooter is corroborated by extensive video footage both before and after the shooting. Notwithstanding the reluctance of the manager and others to testify, the prosecution's case was strong and belies any mistaken identification. (After receiving testimony from the civilian witnesses, the court found a "sufficient basis to conclude that [one of the witnesses], as well as other witnesses, are willfully failing to remember some of the[ir] prior statement[s]. Even if an expert on cross-racial identification had been called, we see no reasonable probability of a result more favorable to defendant. No Sixth Amendment or due process violation is shown on this record.
Defendant raises prosecutorial misconduct and other evidentiary issues in the first instance in his reply brief. We will not address those arguments because no good cause has been shown why the issues were not raised in the opening brief. (City of Costa Mesa v. Connell (1999) 74 Cal.App.4th 188, 197.)
III. DISPOSITION
We dispose of defendant's related petition for writ of habeas corpus (H048431) by separate order filed today. --------
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Danner, J.