Opinion
F072851
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. CODY MORGAN SNOW, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1489464)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Appellant Cody Morgan Snow appeals his conviction on one count of robbery (Pen. Code, § 211). Appellant contends the trial court erred by admitting oral testimony concerning the contents of a surveillance video that was not entered into evidence or produced in discovery. Relatedly, recognizing his objection to the introduction of the evidence may have been waived, appellant argues he received ineffective assistance of counsel. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2015, Alejandro Medina was working as a cashier at a Home Depot store in Modesto. As part of his duties, he was monitoring the self-checkout units at the store. Medina observed two men attempt to leave the Home Depot carrying tools that Medina had not seen the men pay for. Consistent with his job duties, Medina approached the first man, later identified as Isaias Becerra, and asked to see his receipt. Becerra responded by yelling "get off me" twice while stabbing Medina in the back.
Appellant was the second individual exiting the store. He said nothing when Medina approached and asked Becerra for his receipt. After the stabbing, appellant said nothing to Becerra, but both immediately ran out of the store. Consistent with store policy, Medina did not pursue appellant or Becerra after they exited the store.
The People entered into evidence a video containing excerpts from the store's video surveillance system. It depicted appellant and Becerra walking through the store together, attempting to exit the store together, and the resulting conflict with Medina. The video did not depict what happened after appellant and Becerra ran from the store, but it did contain a still image from the Home Depot parking lot of an Oldsmobile vehicle that was similar to one owned by appellant.
When admitting the video into evidence, the People called Ana Ramirez-Pinto, a loss prevention agent from the Home Depot store, to authenticate the video. Aside from reviewing the video and confirming its authenticity, Ramirez-Pinto and the People engaged in the following exchange, without objection from appellant's counsel:
"[PROSECUTOR:] And when you watched the video, did you observe anything that occurred outside the store?
"[WITNESS:] Yes.
"[PROSECUTOR:] And what did you observe that occurred outside the store?
"[WITNESS:] Initially when I reviewed the video I immediately saw the two individuals run out and get into this vehicle and take off. [¶] Later when I investigated it further, I could see the car pulling in, backing into a stall, and the same individuals exiting before entering the store and heading to that area where the up-close monitors captured them."
Later, when one of the investigating officers was testifying, the People again asked about surveillance video showing appellant and Becerra outside of the Home Depot store:
"[PROSECUTOR:] When you were watching the video, what did the defendant and Becerra do after the stabbing?
"[WITNESS:] They exited out of the doors where the self-checkout area is, kind of veered off - -[.]"
At this point counsel objected and a bench conference occurred. After this off-the-record discussion, the officer testified that appellant and Becerra both entered the same car, with appellant driving, and fled the area. On cross-examination, the officer revealed he had a copy of a surveillance video showing appellant and Becerra fleeing the scene.
At the conclusion of the officer's testimony, the court revealed on the record that appellant's counsel had "made a secondary evidence rule objection" with respect to the officer's testimony about the surveillance video. In response, appellant's counsel further explained the People did not produce a copy of the outdoor part of the surveillance video and argued, "allowing the detective to speak about the contents of a video without presenting the video itself violates the secondary evidence rule and that evidence should have been and should still be excluded."
The court overruled the secondary evidence rule objection. With respect to the discovery complaint, the court noted that Ramirez-Pinto's testimony had "matched exactly" with the officer's and concluded there was no reason to strike the officer's testimony on those grounds. The court then asked appellant's counsel, "is there anything you want to say about that issue," to which counsel responded, "No. I'll submit." The court confirmed appellant's objection was overruled.
Prior to closing arguments, the trial court considered whether to read a jury instruction offered by appellant. This instruction would have read, "A get-away driver from a robbery cannot be convicted as an aider and abettor of robbery unless he knew the robbery was going to occur before it happened." The court declined to give this instruction.
The People argued appellant was guilty of robbery under two theories. Under the first, appellant was guilty of robbery because the stabbing was a natural and probable consequence of Becerra's petty theft, of which appellant was a coparticipant. Under the second, appellant aided and abetted the robbery, in part because, after seeing the stabbing, appellant continued with Becerra and the two fled together in appellant's car.
Appellant's counsel conceded appellant was guilty of petty theft, but argued appellant was not guilty of robbery. He argued appellant only participated in an act of shoplifting, not knowing Becerra was armed, and that it was unlikely a violent act would occur in that context. With respect to the aiding and abetting theory, counsel argued appellant's only aid was given after the crime, not during, and that the People had not charged appellant with aiding and abetting after the fact. According to this theory, the robbery concluded when appellant and Becerra reached the outside of the Home Depot store without further pursuit. Anything occurring after that point was, according to counsel, uncharged conduct.
The jury ultimately convicted appellant of robbery. The court sentenced appellant to a two-year term. This timely appeal followed.
DISCUSSION
On appeal, appellant contends that admitting any evidence of the contents of the surveillance video was improper under the secondary evidence rule and under Evidence Code sections 1522 and 1523. Appellant contends insufficient evidence supports his conviction without this evidence because the jury could have convicted on an unsupportable theory of guilt. The People admit that admitting evidence of the contents of the surveillance tape through the investigating officer was improper. However, the People contend any error was harmless because appellant did not object to the introduction of the same evidence through Ramirez-Pinto's testimony, an objection the People claim appellant's trial conduct waived, rendering any error harmless. Appellant disputes whether he waived any objection to Ramirez-Pinto's testimony, but contends a finding of waiver would demonstrate ineffective assistance of counsel. Standard of Review and Applicable Law
All statutory references are to the Evidence Code unless otherwise noted.
"As a general rule, a timely and specific objection at trial to the admission of evidence is a necessary prerequisite before one may challenge on appeal the admissibility of the evidence." (People v. Tom (2014) 59 Cal.4th 1210, 1238 (Tom).)
"Under the secondary evidence rule, the content of a writing may now be proved either 'by an otherwise admissible original' (§ 1520) or by 'otherwise admissible secondary evidence' (§ 1521, subd. (a); [citation].)" (People v. Goldsmith (2014) 59 Cal.4th 258, 269.) Regardless, "[e]xcept as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing." (§ 1523, subd. (a).) The statutory exceptions may arise, with certain additional requirements, where the original is lost, the original is not reasonably procurable, the writing is not closely related to any controlling issues, or the original is a compilation of numerous other writings and the evidence sought is the general result of the whole. (§ 1523, subds. (b), (c), (d).) Moreover, the court in a criminal action must exclude secondary evidence if it determines "that the original is in the proponent's possession, custody, or control, and the proponent has not made the original reasonably available for inspection at or before trial." (§ 1522, subd. (a).)
The erroneous admission of evidence in violation of the secondary evidence rule does not require reversal unless a timely objection to exclude the evidence appears on the record, exclusion should have resulted from the objection stated, and the error resulted in a miscarriage of justice. (§ 353.) An error is harmless unless it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We review a trial court's decision to admit evidence for an abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 482.) Appellant Failed to Object to Ramirez-Pinto's Testimony
Appellant argues in reply that his objection to the investigating officer's testimony is sufficient to preserve an objection to the testimony provided by Ramirez-Pinto regarding her observations of the outdoor security video. The record does not support this position. It is undisputed that appellant did not object on secondary evidence or other related grounds when Ramirez-Pinto testified regarding what she saw on the outdoor surveillance video. As Ramirez-Pinto testified prior to the investigating officer, any later objection to the officer's testimony would also need to object to Ramirez-Pinto's testimony to exclude any secondary evidence concerning the contents of the surveillance video.
Appellant made his initial objection on secondary evidence grounds during an unrecorded side bar. However, the court placed the substance of appellant's objection on the record shortly thereafter, noting to appellant's counsel that "at sidebar you made a secondary evidence rule objection as regarding the testimony of Detective Hicks [the investigating officer]." The court then gave counsel an opportunity to elaborate further on the objection, but counsel did not mention Ramirez-Pinto's testimony as objectionable. In response to counsel's argument, the court directly raised the fact that another witness had testified to the contents of the video, explaining his decision to overrule the discovery production aspect of the objection by noting the officer's testimony "wasn't anything differently [sic] than what was already testified to." Despite this opening, appellant's counsel made no objection to that prior testimony.
Taking this history as a whole, the record does not reflect any concern on behalf of appellant's counsel that Ramirez-Pinto's testimony regarding the contents of the surveillance video was objectionable. As appellant failed to raise a timely objection on the record to the admission of Ramirez-Pinto's testimony, appellant has waived any objection on appeal. (Tom, supra, 59 Cal.4th at p. 1238; § 353.)
In light of this fact, we conclude the improper admission of testimony regarding the contents of the surveillance video through the investigating officer was harmless. As the trial court noted, the testimony from the investigating officer was not markedly different from Ramirez-Pinto's testimony. In fact, Ramirez-Pinto's testimony contained more information regarding the relationship between appellant and Becerra than the investigating officer provided. The investigating officer testified appellant and Becerra exited the store and went to a blue four-door Oldsmobile in the parking lot, where appellant proceeded to drive the two away. Ramirez-Pinto not only testified that the two fled in the same car but also that she reviewed video showing the car, containing both appellant and Becerra, being parked in the stall prior to the robbery. In light of this previously admitted evidence, the improper introduction of similar testimony through the investigating officer was duplicative and does not rise to the level of a miscarriage of justice. (§ 353; see Watson, supra, 46 Cal.2d at p. 836 [defining harmless error].) Appellant Cannot Show Ineffective Assistance of Counsel on this Record
Appellant does not contend there is a lack of substantial evidence in support of his conviction even if the admission of Ramirez-Pinto's testimony was proper.
Appellant contends that a determination trial counsel waived any objection to Ramirez-Pinto's testimony demonstrates appellant received ineffective assistance of counsel in this case. On the current record, we do not agree.
Appellant initially raised this issue by footnote to his opening brief. Generally, such conduct will not preserve an issue for review. (See In re Keisha T. (1995) 38 Cal.App.4th 220, 237, fn. 7; Cal. Rules of Court, rule 8.204, subd. (a)(1)(B).) However, given the People's admission of error and subsequent analysis of the potential for an ineffective assistance of counsel claim, in this instance counsel has sufficiently preserved the issue. --------
To establish ineffective assistance of counsel, appellant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
" 'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' " (People v. Hart (1999) 20 Cal.4th 546, 623-624.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Avena (1996) 13 Cal.4th 394, 421; People v. Adcox (1988) 47 Cal.3d 207, 261.)
Although the People's concession that oral evidence regarding the surveillance video was improperly admitted through the investigating officer suggests that appellant was prejudiced by the admission of similar testimony through Ramirez-Pinto, appellant's ineffective assistance of counsel claim cannot succeed on direct appeal given the record in this case. The decision not to object is generally a tactical decision made by trial counsel. As such, unless the record reveals that trial counsel was unable to explain why he did not object, or there could be no satisfactory reason for not objecting, we cannot determine whether trial counsel's conduct fell below an objective standard of reasonableness.
In this case, the record does not reflect why trial counsel failed to object to Ramirez-Pinto's testimony. Moreover, while it may be a close call, we conclude there could be a satisfactory reason for not objecting. The record reflects at least one possible reason for not objecting to Ramirez-Pinto's testimony, a belief that the evidence would not support a conviction and was thus not worthy of objection.
The testimony in this case, including from both the investigating officer and Ramirez-Pinto, took less than three hours, and closing arguments occurred after a roughly two hour lunch break. Yet, prior to closing arguments, trial counsel requested a jury instruction which would have instructed the jury that a "get-away driver from a robbery cannot be convicted as an aider and abettor of robbery unless he knew the robbery was going to occur before it happened." In closing arguments, trial counsel argued appellant only intended to participate in shoplifting items, conduct which was not likely to lead to a robbery. Counsel further argued the robbery that did occur ended as soon as appellant and Becerra exited the Home Depot and, thus, there could have been no intent to aid and abet a robbery shown by conduct occurring after that point. The combination of the proposed jury instruction and the argument to the jury provides a reasonable inference that counsel's decision not to object was grounded in a tactical decision to concede appellant was guilty of shoplifting but convince the jury appellant had no part in Becerra's more violent actions. Appellant's objection to similar evidence from the investigating officer provided an opportunity to attack the credibility of both the witness and the prosecution's case due to the fact no video was produced or introduced into evidence, a point also made in closing, and thus could be viewed as complementary, rather than contradictory, to trial counsel's strategy.
On such a record, it is not proper to infer that counsel's conduct was deficient. "[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus ... where relevant facts and circumstances not reflected in the record on appeal, such as counsel's reasons for pursuing or not pursuing a particular trial strategy, can be brought to light ...." (People v. Snow (2003) 30 Cal.4th 43, 111.) Reviewing courts should not become engaged " 'in the perilous process of second-guessing.' " (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) Restraint avoids the risk of unnecessarily ordering reversal in a case "where there were, in fact, good reasons for the aspect of counsel's representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record." (Ibid.)
DISPOSITION
The judgment is affirmed.