Opinion
D057952 Super. Ct. No. SCD227756
12-05-2011
THE PEOPLE, Plaintiff and Appellant, v. DOUGLAS STRONG, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Laura Halgren and Frederick Maguire, Judges. Order reversed.
In this appeal, the People challenge a court order that set aside several counts of an information based on a finding that the defendant was denied a substantial right at the preliminary hearing. We conclude there was no substantial rights violation at the preliminary hearing, and accordingly reverse the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Overview
In June 2010, the prosecution filed a complaint charging Douglas Strong with six counts of burglary and six counts of petty theft with a prior. The alleged offenses arose from six different incidents where a man entered a Target store and stole items from the electronics department. Five of the incidents occurred in March and May 2010 at a Target store in the College Grove shopping center, and one of the incidents occurred in May 2010 at a Target store on Balboa Avenue. These Target stores have video surveillance systems that retain videos from five to 30 days.
Defendant was ultimately tied to the thefts based on a license plate number recorded by an employee at the Balboa Avenue store. This employee also personally saw defendant at the Balboa store and she identified him at the preliminary hearing. Concerning the thefts at the College Grove Target, an asset protection specialist from the store reviewed the surveillance videos depicting the five incidents and, based on this review, testified at the preliminary hearing that defendant was the man in the videos.
Prior to the preliminary hearing, defense counsel had been provided with still photos derived from the surveillance videos, but had not been provided with the videos. When defense counsel realized at the preliminary hearing that the surveillance videos were still in existence, he requested a continuance so he could view them. The court (Judge Laura Halgren) denied the request for a continuance, with the caveat that the prosecution was obligated to provide exculpatory information before the preliminary hearing and defense counsel could bring a motion for relief in the event the videos contained exculpatory information.
At the conclusion of the preliminary hearing, Judge Halgren found probable cause as to all counts and bound defendant over for trial. After receiving and reviewing the videos, defense counsel moved to set aside the information, arguing that to provide effective representation at the preliminary hearing he needed to cross-examine the prosecution's witnesses based on information in the videos. The court (Judge Frederick Maguire) granted the motion as to the College Grove Target charges. To support this ruling, Judge Maguire cited defendant's constitutional right to exculpatory evidence under Brady , and the fact that the identification of defendant as the perpetrator of the College Grove offenses was based entirely on the videos.
Brady v. Maryland (1963) 373 U.S. 83.
We conclude that although a defendant's substantial rights at the preliminary hearing may be violated by the prosecution's failure to disclose exculpatory evidence in its possession as required under Brady, no such violation occurs unless the nondisclosure reasonably might have affected the outcome of the preliminary hearing. Applying this standard here, defendant was not denied a substantial right at the preliminary hearing. Accordingly, we reverse the court's order setting aside the College Grove charges.
Incidents at College Grove Target
At the preliminary hearing, the assets protection specialist from the College Grove Target (Robert Neu) described the contents of the surveillance videos depicting the March and May 2010 thefts at this store. Neu testified that a video for March 7, 2010, at about 8:54 p.m. showed a man take three items (an IPod charger Powermat, an IPod case cover, and a Blackberry case cover), place the items in his waistband, and walk out the store without paying for the items.
When taking the IPod charger powermat, the man used a tool to cut a locked peg-hook display, removed the item from the hook and from its packaging, and placed the item in his waistband.
Neu testified that after leaving the store the man went to his vehicle, but Neu did not know type of vehicle it was.
A video for March 11, 2010, at about 5:19 p.m. showed a man take a computer router, remove the packaging, place the item back on the display rack, go to the main aisle and glance around, reenter the aisle where the item was, place the item in his pants pocket, and leave the store without paying.
A video for March 13, 2010, at about 8:30 p.m. showed a man take two DVD players and placed them in his shopping cart. The DVD players contained a security wrap that would sound an alarm if the wrap was removed without a key. Without paying for the items, the man left through a fire exit in the back of the store by the grocery department, causing the alarm to go off. Neu testified that the video showed the man entering a maroon or red Dodge pickup truck.
In a March 13 report describing this incident, Neu wrote that the man left the store in a maroon-colored pickup truck, without specifying the make or model of the truck.
Less than one hour later (at about 9:18 p.m.) that same night, the video showed a man enter the store and engage in the same behavior as had just occurred. The man took the same type of items (two DVD players), exited out of the same fire exit, and entered the same maroon or red truck.
Two months later, a video for May 16, 2010, showed a man take two DVD players, place them in a shopping cart, and walk out the fire exit in the back of the store by the bicycle department. The video showed the man leaving the area by walking down a back trail that leads to another store. The man was wearing a gray sweatshirt that had "FDNY" on the front.
Based on his review of the videos, Neu prepared a description of the thief, stating he was a white male between the ages of 40 and 50, with a bald or shaved head, six feet tall, and weighing 180 pounds. Neu described the thief's truck as a red Dodge pickup, early 2000's model, and with a yellow item stating "Support Our Troops."
During the thefts in March, the man was wearing a hat, whereas during the May theft, he was not wearing a hat.
At the preliminary hearing, Neu identified defendant as the man in the videos recorded on March 7, 11, and 13, and May 16.
In March 2010, Detective Laura McGowan-Minto received crime reports for the March incidents, which indicated that the same person had been involved in all four incidents. Detective McGowan-Minto watched the March and May surveillance videos from the College Grove Target, and at the preliminary hearing identified defendant as the man in all of these videos.
Incident at the Balboa Avenue Target
The day before the May 16 theft at the College Grove Target, the Balboa Avenue Target also experienced a theft from its electronics department. This incident occurred at about 4:08 p.m. on May 15, 2010. The Balboa Target's assets protection specialist (Daniel Ortiz) reviewed a surveillance video depicting a man taking a DVD player, placing it in a shopping cart, and exiting the store through the fire exit door at the back of the store with the item in his hand. Ortiz testified that the video showed the man getting into a red, mid-size pickup truck with an extra cab.
Ortiz had received a report and photos concerning the March thefts at the College Grove Target store, and he assessed that the same man had committed both the College Grove and Balboa thefts. Ortiz observed that the man in the photos from the College Grove thefts (derived from the College Grove videos) looked like the man in the Balboa store's video; the modus operandi was the same; and the description of the vehicle was the same. At the preliminary hearing, Ortiz identified defendant as the man in the May 15 video from the Balboa store.
Ortiz did not specify which March incidents were depicted in the photographs he reviewed.
When Balboa Target manager Rebecca Crouse heard the fire alarm go off on May 15, she immediately ran to the fire exit door. She opened the door and saw a man holding something and walking towards a small red pickup truck with a female passenger in it. The man then drove in Crouse's direction, and Crouse was able to look at the man and to record the license plate number. At the preliminary hearing, Crouse identified defendant as the man she saw enter the truck.
Defendant's Arrest
When Detective McGowan-Minto investigated the license plate number provided by Crouse after the Balboa theft, she determined that (except for one digit) it matched the license plate for a truck owned by defendant. Detective McGowan-Minto was informed that the suspect's truck was probably a Dodge Dakota, and she surmised that Crouse may have incorrectly recorded some of the license plate digits. When McGowan-Minto ran a check using the first two digits of the number provided by Crouse and describing the vehicle as a red Dodge truck, the automated system identified defendant's truck, and showed that only the fourth digit was different from the digit recorded by Crouse. McGowan-Minto testified that when defendant was arrested and was asked about the Target burglaries, he admitted that he had stolen DVD's, explaining that he was a heroin addict and needed the money. Defendant also stated that he owned a gray FDNY sweatshirt as depicted in the May 16 College Grove video.
The license plate number provided by Crouse actually matched a four-door Chevrolet truck owned by a man in Napa, California. When defense counsel asked if this man also fit the description of the suspected thief, Detective McGowan-Minto answered, "Somewhat."
On direct examination, McGowan-Minto stated that defendant admitted that he had "committed the burglaries and stolen the DVD players and the charging mat." On cross-examination, McGowan-Minto acknowledged that defendant merely stated he had stolen DVD's, and he did not state he had stolen DVD players, a charging pad, or a router.
Court's Denial of Request for Continuance to View Videos
and Finding of Probable Cause
When defense counsel cross-examined Neu concerning the incidents at the College Grove Target, Neu acknowledged that he never actually saw the thief or the truck, and that his observations were all derived from the videos. Defense counsel, who had been provided with still photos derived from the videos, used these photos to cross-examine Neu.
During cross-examination of Neu, defense counsel asked if the videos were still in existence, and Neu answered yes. Defense counsel then requested a continuance of the preliminary hearing so that he could view the videos. Defense counsel stated that the discovery he was provided contained unclear still photos but no videos, and this was the first time he was informed the videos still existed. He argued he needed to see what was on the videos to effectively cross-examine Neu. Opposing a continuance, the prosecutor stated the existence of the videos was revealed in the police reports provided to defense counsel during discovery; there had been no request for the videos; there was no discovery obligation before the preliminary hearing; and the discovery would be provided in timely fashion before trial.
During later discussions concerning the defense motion to set aside the information, defense counsel refuted the prosecutor's claim that there had been no request for the videos, stating that his discovery request encompassed any videos.
Judge Halgren ruled there was no basis for a continuance, finding defense counsel had sufficient evidence to cross-examine Neu for purposes of the preliminary hearing.
However, the court commented that if there was any exculpatory information in the videos defense counsel was entitled to receive them before the preliminary hearing, and he could bring a motion for relief on this basis if he found anything in the videos after their production.
The court made the same rulings when defense counsel requested a continuance after Ortiz and Detective McGowan-Minto identified defendant as the man in the Target surveillance videos.
After the conclusion of the preliminary hearing testimony, the court found the evidence showed probable cause that defendant committed the charged offenses and ordered that he be held to answer on those charges.
Order Setting Aside College Grove Charges
and Defendant's Guilty Plea to Balboa Charges
After the preliminary hearing, the prosecutor provided defense counsel with the surveillance videos. Defense counsel filed a Penal Code section 995 motion to set aside the information based on a claim that defendant's substantial rights had been violated because of the failure to afford defense counsel an opportunity to view the videos before the completion of the preliminary hearing. Defense counsel argued that he needed access to the videos to conduct effective cross-examination of witnesses who relied on the videos to identify defendant. Further, defense counsel proffered potentially exculpatory evidence in the videos, stating that the truck depicted in some of the videos was a gray truck with a black hood, not a red truck. Defense counsel explained that the videos of the "early instances" in March showed "an old gray beat-up truck with a black hood," whereas the May video showed a newer red truck with a yellow ribbon on the back. The videos themselves were not presented at the hearing.
Subsequent unspecified statutory references are to the Penal Code.
Defense counsel also argued there was insufficient evidence to support the court's probable cause finding at the preliminary hearing. Although the court granted the section 995 motion, it rejected the claim that the probable cause finding was unsupported. On appeal defendant does not argue the probable cause ruling was erroneous.
It is not clear from the record which of the four March incidents the defense was claiming involved a gray truck. The prosecutor who appeared at the section 995 hearing did not provide any information concerning the truck color issue, explaining to the court that she had not viewed the videos.
Judge Maguire accepted defense counsel's representation concerning the different trucks depicted in the videos, and noted that the prosecution has constitutional obligations under Brady applicable to the preliminary hearing, which are distinct from the statutory obligations to provide discovery prior to trial. The court observed that the identification of defendant for the College Grove offenses was based entirely on the videos, and concluded that for those offenses it was essential for effective representation that defense counsel have the opportunity to conduct cross-examination based on those videos. Accordingly, the court granted defendant's section 995 motion to set aside the College Grove charges (counts 1 through 8, 11, and 12), without prejudice to the prosecution's right to refile the charges.
Because there was an eyewitness who identified defendant for the Balboa incident, the court did not set aside the Balboa charges (counts 9 and 10). Defendant thereafter pleaded guilty to the Balboa charges.
DISCUSSION
The purpose of the preliminary hearing is to determine whether there is probable cause to conclude the defendant committed the charged offenses. (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8 (Galindo).)Probable cause exists if a person of ordinary caution would have a strong suspicion that the defendant committed the crime. (Ibid.)After a magistrate finds probable cause and an information is filed, the defendant may move to set aside the information based on claims that he or she was committed without probable cause or denied a substantial right at the preliminary hearing. (§ 995; People v. Standish (2006) 38 Cal.4th 858, 882 (Standish).)A magistrate's probable cause finding requires only some rational ground to support the possibility that the defendant is guilty of the offense, and all reasonable inferences must be drawn in favor of the finding. (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740.) On appeal, we independently review a court's determination that the defendant was denied a substantial right at the preliminary hearing. (People v. Konow (2004) 32 Cal.4th 995, 1025.)
Some errors that occur at a preliminary hearing by their nature constitute a denial of a substantial right because they are inherently prejudicial, such as denial of counsel. (Standish, supra, 38 Cal.4th at p. 882; Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1532-1534; Currie v. Superior Court (1991) 230 Cal.App.3d 83, 98.) However, most errors require a showing of prejudice in order to rise to the level of a denial of a substantial right. (Standish, supra, 38 Cal.4th at pp. 882-883; Currie, supra, 230 Cal.App.3d at pp. 98-100.) As explained in Standish, "[G]enerally[,] a denial of substantial rights occurs only if the error 'reasonably might have affected the outcome.' [Citations.] . . . [W]e do not mean that the defendant must demonstrate that it is reasonably probable he or she would not have been held to answer in the absence of the error. Rather, the defendant's substantial rights are violated when the error is not minor but 'reasonably might have affected the outcome' in the particular case." (Standish, supra, 38 Cal.4th at pp. 882-883; People v. Konow, supra, 32 Cal.4th at pp. 1024-1025.)
Since the 1990 passage of Proposition 115, a defendant generally does not have a right to a continuance of the preliminary hearing merely to obtain pretrial discovery that would not likely defeat a probable cause showing. (Galindo, supra, 50 Cal.4th at pp. 5-13.) In Galindo, the court recognized that the constitutional right to effective assistance of counsel applied at preliminary hearings, but concluded that preservation of this right did not require a continuance of the preliminary hearing to obtain Pitchess review of officer personnel records that might provide information to impeach an officer's credibility. Galindo reasoned: "It is highly unlikely that the testimony of Pitchess witnesses at the preliminary hearing would defeat a finding that there was probable cause to believe that the defendant 'committed a felony and should be held for trial.' [Citations.] Given this low standard of proof governing preliminary hearings . . . denial of . . . Pitchess discovery . . . would not prevent defense counsel from providing effective representation at the preliminary hearing." (Id. at p. 10.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
In reaching its conclusion, the Galindo court noted that before Proposition 115, courts routinely granted continuances to accommodate a defendant's request for pretrial discovery to prepare for the preliminary hearing. (Galindo, supra, 50 Cal.4th at p. 11.) Galindo concluded that this practice is no longer appropriate given that Proposition 115 amended the California Constitution to establish the People's constitutional right to a speedy trial, which would be undermined by the delays inherent in a continuance for Pitchess discovery. (Id. at p. 12.)
Further, after passage of Proposition 115, the purpose of the preliminary hearing has been considerably narrowed; its purpose is to establish whether probable cause exists, not to conduct discovery. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070-1081; § 866, subd. (b).) The function of the preliminary hearing is not to provide a " 'searching exploration into the merits of a case,' " but rather to determine " 'whether probable cause exists to hold the accused for trial.' " (Whitman, supra, at p. 1079.) Thus, a defendant's rights are not violated at the preliminary hearing even if he or she does not receive all the rights available at trial. (See id. at pp. 1070-1082 [upholding constitutionality of Proposition 115's provision permitting probable cause determination based on qualified officer's hearsay testimony]; People v. Eid (1994) 31 Cal.App.4th 114, 119, 125-128 [magistrate has discretion to limit defendant's right to call witnesses at preliminary hearing].)
In his motion to set aside the information, defendant argued he was denied a substantial right at the preliminary hearing because his counsel did not have an opportunity to use the videos (1) for general cross-examination purposes, and (2) as affirmative exculpatory evidence (i.e., the image reflecting a gray, rather than red, truck). Because these claims of error do not involve inherently prejudicial, structural error that affected the fundamental fairness of the preliminary hearing, to establish a substantial rights violation defendant must show that the lack of access to the videos reasonably might have affected the probable cause determination. (Standish, supra, 38 Cal.4th at pp. 882-883; Galindo, supra, 50 Cal.4th at p. 10.) Applying this standard here, the record does not show a substantial rights violation because there is no showing the videos might have altered the outcome of the preliminary hearing.
To the extent defense counsel was seeking to use the videos to generally challenge the witnesses' ability to accurately identify defendant based on the images in the video, the denial of the continuance did not violate defendant's substantial rights. Defense counsel had access to the still photos of the thief to use on cross-examination, and there is no claim that the videos provided any affirmative information concerning the thief's appearance that was not available in the still photos. Even if cross-examination based on the videos revealed inconsistencies or deficiencies in the strength of the identification evidence, there is no showing that general impeachment evidence, standing on its own, might have caused the court to reject a probable cause finding.
Regarding the issue of exculpatory evidence, defendant correctly asserts that a defendant's substantial rights may be violated at the preliminary hearing if the prosecution fails to comply with its constitutional obligation under Brady to provide exculpatory information in its possession. (See Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1592-1594, 1596 & fn. 5.) According to defense counsel's offer of proof, the videos were potentially exculpatory because they showed that at some of the March incidents the thief was driving a gray, not a red, truck. Accepting this description as accurate, we are not persuaded that the presence of a gray truck might have caused the magistrate to conclude there was no basis to entertain a strong suspicion that defendant committed the College Gove offenses.
Because Judge Maguire accepted defense counsel's representation that the video depicted a gray truck, for purposes of our analysis we will assume that this evidence is contained in the videos. Given our holding reversing the court's order setting aside the College Grove counts, we need not address the Attorney General's arguments that defense counsel's claim of error required a nonstatutory (rather than statutory) motion for relief because it relied on matters outside the preliminary hearing record, and required submission of the videos into evidence.
The evidence at the preliminary hearing showed that on four separate occasions during a one-week period (on March 7, 11, and 13), a man stole items from the electronics department at the College Grove Target. During the two March 13 College Grove incidents, the man stole DVD players, left the store through the fire exit, and was driving a red truck. Two months later (on May 15), the same type of theft was committed at the Balboa Target store; i.e., a man stole a DVD player, left through the fire exit, and was driving a red truck. Defendant was seen by an eyewitness leaving the scene of the Balboa theft, and subsequent investigation revealed that the license plate on the Balboa thief's red truck matched defendant's red truck except for one digit. When the security employee for the Balboa store reviewed a report and photos from the March College Grove thefts, he assessed that the thief appeared to be the same person at both the College Grove and Balboa locations. One day after the Balboa theft (on May 16), the College Grove Target experienced yet another theft of DVD players; the thief again left through the fire exit; and defendant later admitted that he had a sweatshirt that matched the sweatshirt worn by the thief on this occasion. The College Grove Target security employee and the investigating detective reviewed the videos from the five College Grove incidents and identified defendant as the thief captured in the videos. Further, after his arrest defendant admitted that he stole DVD's from Target.
Thus, the prosecution presented evidence showing that the incidents involved numerous common features (i.e., thefts from the electronics department from the same company, grouped during the same time periods, and use of a similar vehicle and exit strategy on repeated occasions); multiple witnesses identified defendant as the man in the surveillance videos; and defendant admitted stealing items from Target. Further, there was distinct evidence tying defendant to thefts at both the College Grove and Balboa Avenue Target locations; i.e., at the Balboa burglary an eyewitness identified defendant and recorded a closely-matching license plate number, and defendant admitted owning a sweatshirt that was seen in the video of the May College Grove burglary. Although the first two incidents at the College Grove store (on March 7 and 11) did not have as many overlapping features when compared to the four other incidents, these two incidents (like the other incidents) involved a theft from the electronics department of the same company; they were close in time to the March 13 incidents; and multiple people assessed that the thief depicted in the videos for the first two incidents was the same person depicted in the videos for the four subsequent incidents.
During the first two incidents the stolen items were not DVD players, the fire exit was not used, and a description of a vehicle was not obtained.
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Under the relatively low standard of proof applicable at a preliminary hearing, there was ample evidence supporting a strong suspicion that the thefts were committed by the same person, and that defendant was that person. Notably, defense counsel did not assert that the videos contained exculpatory evidence showing that the man depicted in the videos was not defendant, nor did defense counsel seek to play the video for the court to demonstrate some other indicia of mistaken identification. Assuming the videos showed that in some instances the thief left in a gray truck, this could merely mean that on some occasions defendant was driving a vehicle other than his red truck. Although the thief's use of a gray truck could be a matter relevant to support the defense at trial, it does not constitute exculpatory evidence that reasonably might have defeated the probable cause finding for the College Grove incidents.
We conclude defendant was not denied a substantial right at the preliminary hearing. Accordingly, the court erred in setting aside the College Grove counts.
DISPOSITION
The order setting aside counts 1 though 8, 11, and 12 is reversed.
HALLER, J. WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.