Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. KA087570, Steven D. Blades, Judge
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Stephanie C. Brenan, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Francisco Ulloa appeals from the judgment following his conviction by jury of second degree robbery. (Pen. Code, § 211.) The jury convicted his codefendant, Randy Crespin, of second degree robbery and also found that Ulloa used a firearm during the robbery. (§ 12022.53, subd. (b).) Crespin is not a party to this appeal. The trial court sentenced appellant to 15 years in state prison (a 5-year upper term for robbery and a 10-year firearm use enhancement). Appellant contends that the trial court erred by admitting an unauthenticated, undated MySpace photograph that appeared to depict appellant holding a gun. We agree that the prosecution's failure to authenticate that photograph should have barred its admission, but conclude that the error was harmless. We affirm and remand with directions to correct a citation in the abstract of judgment.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Prosecution Case in Chief
On July 13, 2009, appellant, Crespin, and the victim, Syed Wasit, all lived within a few blocks of the Yes Plaza at Fullerton and Colima Roads in Rowland Heights. That night, at approximately 10:00 p.m., Wasit drove his car in the parking area of his apartment complex at 1940 Fullerton Road. The area was dimly lit with a small yellow light.
Before parking his car, Wasit noticed two Hispanic men in their 20's who were leaning against a wall in the corridor near the complex parking area. He got a "good look" at them, from a distance of approximately four feet when he drove by and backed his car into its space. He later identified appellant and his codefendant, Crespin, as those men. Appellant wore a black or dark t-shirt, jeans, and a bandanna that covered the lower half of his face. Crespin wore jeans, a light, long-sleeved button-down shirt and a black baseball cap. Wasit parked his car and got out.
Wasit walked by Crespin and appellant on his way to his apartment. Crespin grabbed Wasit's keys, and broke the chain or piece that connected Wasit's key rings. After it broke, Crespin retained several key rings, some keys, and a chain fob with the initials "SW, " and Wasit had a ring with his apartment key.
Wasit tried to recover his keys from Crespin but appellant approached and pointed a "grayish metal" semiautomatic gun at Wasit's head. Wasit stepped back. Appellant lowered the gun to Wasit's ribs and repeatedly said, "[G]ive me your fuckin' wallet." Wasit was scared. He gave appellant his wallet. Crespin took Wasit's cell phone. One of the men snatched a bag that Wasit was holding. Appellant and Crespin ran away, toward Fullerton Road.
Wasit went to his apartment, called 911, and reported the robbery. Los Angeles County Sheriff Deputy Phillip Geisler arrived a few minutes later and interviewed Wasit. He told Geisler that the robbers took over $100, in $20, $5 and $1 bills.
Unless otherwise indicated, deputies or investigators are employed by the Los Angeles County Sheriff's Department.
Geisler spoke with Wasit and broadcast the following description of the suspects: "Suspect number one who was armed with the semi-auto was a male Hispanic approximately... 25 to 28 years old wearing Levi's, black short sleeve T-shirt, and had a black and white... bandanna.... [¶] [S]uspect number two was a male Hispanic, early twenties, Levis, light-colored long sleeve button-down shirt, black baseball cap with a light mustache, 5-7, 5-8 medium build. [¶] And... suspect number one... was about 5-7... as well, medium to thin build." The broadcast included the crime scene location.
Just after hearing the broadcast, Deputy Herman Camacho saw a Hispanic man running through an alley, within a quarter mile of the crime scene. The suspect (later identified as codefendant Crespin) wore an unbuttoned "light brown or black... button-up shirt, " over a white undershirt. Crespin looked "startled" or surprised when he saw Camacho, and kept running. Camacho radioed for assistance. Camacho saw plastic cards drop to the ground as Crespin ran. Camacho picked up the cards, including gift cards and a credit card, and other items that bore Wasit's name.
Around 10:00 p.m., Deputy Esther Kim went to Wasit's apartment complex in response to Camacho's radio call. She saw a shadow of a person walking into a carport. When Camacho joined Kim, they found Crespin hiding under a tarp in the carport. He looked surprised. He was breathing heavily and sweating. The only shirt he wore was a white undershirt. They searched him and found his wallet and $68 in cash that was not in the wallet. They also found a ring with keys; Crespin told Kim that the keys were his. The key ring had a flat black plastic tag or fob with the initials "SW." Camacho first noticed the initials later, at the station.
At about 10:15 p.m. that evening, Deputy David Chi drove a patrol car to the Yes Plaza shopping center at the corner of Fullerton and Colima Roads, north of Wasit's apartment complex. Chi parked the patrol car, with its amber lights facing the Plaza's dumpster area. Within five minutes, appellant walked from the plaza's dumpster area wearing a gray t-shirt. He seemed nervous, and turned his head from right to left as he walked. He was sweating heavily.
Chi told appellant to show his hands and turn around, but he did not immediately comply. Chi detained him at gunpoint. He searched appellant but did not find a gun, money, a bandanna, or other property. Appellant was not carrying a bag or any merchandise from Yes Plaza merchants.
The dumpster area was separated from an adjacent slope by a chain link fence that was topped with barbed wire. There was a gap in the barbed wire that could have allowed access, at the top of the fence, between the slope and dumpster area. At trial, Chi recalled that appellant had a lot of dirt and grass on his face and shirt. His written report did not mention that dirt or grass. Camacho saw a "little bit" of grass and dirt at the bottom of appellant's pants when they were at the station after the robbery. The deputies booked appellant's t-shirt and jeans into evidence.
At approximately 10:30 or 10:40 p.m., Geisler drove Wasit to an area about a block from his home to participate in a field show-up. Geisler admonished Wasit that the fact that the person was in custody did not mean he was the person who committed the robbery, and informed him to look at the person's features, height, build, and everything. Wasit acknowledged that he understood the procedures. Wasit was from Pakistan but he "spoke pretty good English." In admonishing Wasit, Geisler did not read from a printed form.
When he and Geisler arrived at the location where other deputies held Crespin, Wasit recognized him as the robber who did not use a gun "as soon as [he] looked at him, " and said, "yes, that's him, hundred percent." Crespin then wore an undershirt, without the baseball cap and long-sleeved shirt that he wore during the robbery.
Geisler then took Wasit to the location where deputies were detaining appellant. On the way, Geisler again admonished Wasit. Appellant was the sole suspect at the location. Wasit looked at appellant for less than a minute, and "identified him as the second suspect with the gun." Wasit based his identification on appellant's "eyebrows, his... hair, build and everything." At trial, Wasit testified that before he viewed appellant, the deputies did not tell him that they thought they had the right people. His preliminary hearing testimony suggests that they did so, and added: "It's not guaranteed. You have to identify them based on the description you gave us."
During the July 13 robbery, the inside and outside of the gunman's arm would have been visible to Wasit. That night, when Geisler had asked whether the robbers had tattoos, Wasit did not mention any. Appellant has tattoos on each of his arms, and on his right wrist.
Deputies and detectives searched the area from the crime scene to the locations where they found appellant and Crespin. They never found the gun, or the bandanna, or the black t-shirt that the armed robber wore. On July 14, detectives searched the areas near Wasit's apartment complex in the daylight. A wall that is not quite six feet tall separated the apartment complex from the top of a slope with grass and other plants. The previously described barbed wire-topped chain link fence is at the bottom of that slope, adjacent to Yes Plaza. Deputy Greg Salcido recovered Wasit's wallet in ivy near his apartment complex, about 50 feet from the plaza's dumpster area. The wallet held items bearing Wasit's name (a credit card, a medical card, and a check), but no money. The site where Salcido recovered the wallet was adjacent to a known gang hangout. There was no evidence that any detective or deputy ever asked anyone at the gang hangout about the robbery.
At trial, Wasit identified appellant in a photograph of a man holding a gun. Camacho later testified that he found the photograph on an internet MySpace page ("MySpace photograph"). That MySpace page or account did not belong to appellant. Camacho testified that the MySpace photograph depicted appellant holding a gun. During cross-examination, Camacho acknowledged that the item in the MySpace photograph could be a replica.
Appellant's Defense Case
Nelly Lugo testified that in July 2009, she lived with appellant and their two young daughters at 19214 Campanario Drive in Rowland Heights. Lugo also testified that she was not appellant's wife or girlfriend, and they did not have a dating relationship at the time of the trial. They were close friends who were part of each other's families.
On July 13, at about 10:00 p.m, appellant's brother, his mother, and some of her grandchildren were visiting appellant, Lugo, and their daughters. Lugo and appellant left their daughters with their visiting relatives to walk to a liquor store in Yes Plaza to buy a 2-liter bottle of soda and two bags of chips. Lugo gave appellant $2 or $3 for the soda and chips.
While walking slowly toward Yes Plaza, appellant and Lugo heard helicopters and saw several patrol cars. They continued walking until Lugo's cell phone rang. Appellant's mother called to say that their baby daughter was crying, after the helicopter sounds woke her up. Appellant's mother could no longer handle all of the children. Lugo told appellant she needed to go back to their house, and he said he would catch up. Appellant continued walking toward Yes Plaza as Lugo left him to help his mother. As she approached their house, Lugo noticed that there was more police activity around Yes Plaza.
Lugo did not know what appellant did after she went home on July 13. She waited "a very long time" for him but was not concerned when he did not return. She did not hear from him until he called her from the sheriff's station, at 8:00 a.m. the next morning.
Detective Daniel Duran spoke with Lugo at the sheriff's station on July 14. She told him that appellant was with her until 9:00 p.m. on July 13. She did not tell Duran that they had been walking to the liquor store. At trial, when asked about the time discrepancy between her testimony and the information she gave Duran, Lugo testified that Duran made her nervous. At the station, Duran asked Lugo if she had ever seen appellant with a gun. She said, "no." At trial, she repeatedly testified that she "never saw appellant with a gun."
Some time after July 14, Duran asked Lugo for her cell phone billing records. She did not provide them to him because she did not have them. By the time Duran requested them, Lugo had a different cell phone number and carrier. The carrier who provided service for her old phone number did not retain its records for more than a month.
Dr. Robert Shomer, a psychologist with expertise in eyewitness identification, testified that stress decreases the accuracy of eyewitness identifications. Shomer opined that field show up identifications are inherently suggestive and the least accurate way of obtaining an identification. He also testified that cross-racial identifications are less accurate than identifications in which the witness and the suspects are of the same race.
Crespin's Defense Case
Crespin, who represented himself at trial, testified and called several other witnesses. Crespin denied that he robbed Wasit. He was walking home on July 13 when he noticed the police activity. He was on parole and thought the deputies were conducting a parole sweep when they approached the carport. Believing that police tend to arrest people with tattoos, he decided to "wait there till they passed." Crespin denied that he was under any tarp. He did not learn that his arrest was for robbery until he was in the patrol car.
Crespin testified that he did not even know appellant on July 13 and first met him some time after his arrest for the robbery, when they were in a holding tank. (Lugo testified that she had never seen Crespin.)
During cross-examination, Crespin admitted a prior residential burglary conviction. He denied that any of his tattoos, including the SGV tattoo, were gang-related. His SGV tattoo stood for San Gabriel Valley, where he grew up. He denied knowing that appellant had any SGV tattoo.
Crespin's investigator, Edward Acosta, a former police officer, opined that there were flaws in the investigation of Wasit's robbery. He testified that police are taught to read a written admonition to witnesses, and Geisler failed to do so in this case. Among other things, Acosta also cited the failure of Salcido to photograph Wasit's wallet before removing it from the ivy where Salcido found it.
Juan Heredia testified that two or three years before trial, Camacho took $150 from him during a traffic stop. Camacho laughed when Heredia asked him about the money. Heredia filed a complaint against Camacho.
Prosecution Rebuttal Evidence
Deputy Luis Mrad worked with Camacho a few years before trial. Heredia looked familiar to Mrad. Mrad recalled a complaint similar to that described by Heredia. Camacho did not pocket any money or laugh during the incident that Mrad associated with that complaint.
Duran testified that appellant had an SGV tattoo behind his right ear, in addition to that on his wrist. Crespin had an SGV tattoo on his abdomen.
The parties stipulated that if appellant and Crespin were found guilty, it would be a second degree robbery. (The information charged them with second degree robbery.)
DISCUSSION
Appellant contends that the trial court erred by admitting an undated, unauthenticated MySpace photograph purporting to depict him holding a gun. We agree.
Only relevant evidence is admissible. (Evid. Code, § 350; People v. Lucas (1995) 12 Cal.4th 415, 466.) A trial court's ruling regarding the admissibility of evidence is reviewed for an abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 444-445.)
The MySpace exhibit at issue here constitutes a "writing" under Evidence Code section 250. (People v. Beckley (2010) 185 Cal.App.4th 509, 514.) A writing is relevant only if it is shown to be authentic, since, without proof of authenticity, the writing has no tendency in reason to prove or disprove a fact at issue in the case. (Beckley, supra, at p. 518.) Although a printout necessarily was used at trial, it is presumed to be an accurate representation of the web page Camacho found on the internet. (Evid. Code, § 1552, subd. (a); Beckley, supra, at p. 517.)
A photograph or other writing may be authenticated by "the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is[.]" (Evid. Code, § 1400.) Two kinds of evidence are generally used to authenticate a photograph, including: (1) the testimony of a person who was present at the time a film was made, who can aver that it accurately depicts what it purports to show; or (2) expert testimony, indicating that the photograph is not a composite or fake. (People v. Bowley (1963) 59 Cal.2d 855, 859-860.) Expert testimony may be used when the picture is probative in itself, that is, when it "'speak[s] for itself.'" (Id. at p. 860.)
Respondent argues that the admission of the MySpace photograph was proper, relying on People v. Doggett (1948) 83 Cal.App.2d 405, and other inapposite cases. In Doggett, the court upheld the admission of a photograph that showed defendants committing a crime, although the people who were present when the photograph was taken did not testify as to its authenticity. However, other evidence was introduced to establish when and where the photograph was taken, and that the people depicted in the photograph were the defendants. In addition, an expert testified that the photograph had not been altered. That was deemed sufficient to establish the authenticity of the photograph. (Id. at pp. 409-410.)
Here, in contrast to Doggett, there was no testimony about when or where the MySpace photograph was taken, and Camacho could not say who took it. He testified that he found that photograph on the internet, and recognized appellant as the man depicted holding a gun in that photograph. No expert testified that the picture was not a composite or faked photograph. "Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when Doggett and Bowley were decided. Recent experience shows that digital photographs can be changed to produce false images. [Citation.]" (Beckley, supra, 185 Cal.App.4th at p. 515.)
Lugo, who lived with appellant, testified that the printout of the MySpace photograph was too small to recognize anyone. After viewing a fuzzy enlargement of that photograph, she stated that she did not know anyone in it. Wasit testified that the person holding a gun in the MySpace photograph was appellant. However, he gave that testimony almost immediately after hearing the prosecutor advise the court that the MySpace photograph depicted appellant holding a gun.
The trial court heard argument concerning the admissibility of the MySpace photograph several times throughout trial. Appellant consistently objected to its lack of relevance and the absence of evidence to authenticate it. The prosecution relied largely upon Camacho's familiarity with appellant and his identification of the man depicted with the gun in the MySpace photograph as appellant. It also stressed that appellant was wearing a gray t-shirt in the MySpace photograph which could be the same shirt he wore on the night of the robbery. The prosecution further argued that the MySpace photograph was relevant to impeach Lugo's testimony that appellant had no access to guns.
The trial court observed that the undated MySpace photograph was recent enough to be relevant because it depicted an adult, rather than a child, holding a gun. The court found that the MySpace photograph was relevant to resolve a credibility issue raised by conflicting testimony from Lugo and Camacho concerning the identity of the man depicted holding a gun, and admitted it into evidence.
Prejudice
We conclude that the trial court erred by admitting the MySpace photograph without sufficient evidence to sustain a finding that it is an accurate depiction of appellant holding a gun. Having decided that the court erred, we turn to the question of whether the error was prejudicial.
Appellant presented an inconclusive alibi defense for the 10:00 p.m. July 13, 2009 robbery. Lugo testified that she and appellant were walking to the liquor store at around 10:00 p.m. on July 13. However, she acknowledged that on July 14, 2009, she told Detective Duran that she had last seen appellant on July 13 at 9:00 p.m.
In arguing that the prosecution presented weak identification evidence, appellant stresses variations between his appearance on the night of the robbery and Wasit's description of the armed suspect. For example, the suspect wore a black shirt and a bandanna, and used a gun. Appellant did not have any black shirt, bandanna or gun at the time of his arrest, within 30 minutes of the robbery. The jury could reasonably have inferred that appellant had ample opportunity to throw or give away those items in the interval between the robbery and his arrest.
Wasit identified appellant on the night of the robbery, at the preliminary hearing, and at trial. Wasit had an opportunity to observe appellant before and during the robbery. Although the bandanna covered the bottom half of appellant's face, Wasit based his identification on appellant's "eyebrows, his... hair, build and everything."
About 20 to 30 minutes after the robbery, Chi located appellant in the dumpster area of Yes Plaza, relatively close to the robbery location. Appellant's demeanor and appearance were suspicious--he looked in both directions as he walked from the dumpster area, and he did not comply with Chi's orders. Chi saw grass and dirt on appellant's face and shirt. A slope with grass and other plants lay between the dumpster area and Wasit's apartment complex. On the day after the robbery, a detective recovered Wasit's wallet about 50 feet east of the Yes Plaza dumpster area.
On this record, we conclude that the erroneous admission of a fuzzy MySpace photograph depicting a man identified as appellant holding a gun or a replica was harmless under either People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 21.)
DISPOSITION
The judgment is affirmed. On remand, the trial court is directed to correct the abstract of judgment to reflect the proper citation for the firearm use enhancement. (§ 12022.53, subd. (b).)
We concur: GILBERT, P.J., YEGAN, J.