Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF150020A Patrick O'Hara, Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On September 9, 2005, an information was filed in the Superior Court of Tulare County charging appellant Robert Mendoza and codefendant Eusevio Campos, Jr. with counts I, III, and IV, second degree robbery (Pen. Code, § 211), with enhancements as to both appellant and Campos that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). As to count I, there were enhancements as to both appellant and Campos for personal use of a firearm (§ 12022.53, subd. (b)), and that a principal personally used a firearm in a gang case (§ 12022.53, subds. (b), (e)(1)). As to counts III and IV, there were enhancements as to appellant for personal use of a firearm (§ 12022.53, subd. (b)), and as to Campos for a principal personally using a firearm in a gang case (§ 12022.53, subds. (b), (e)(1)). As to count IV, it was further alleged that Campos personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Appellant was separately charged with counts II, V, and VI, second degree robbery, with enhancements for personal use of a firearm (§ 12022.53, subd. (b)), and committing the offense for the benefit of a criminal street gang. As to all counts, it was alleged appellant served one prior prison term (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations. Campos entered into a plea agreement prior to trial.
On June 26, 2006, the court bifurcated the prior prison term allegation, and appellant’s jury trial began with motions in limine. On July 5, 2006, appellant was convicted as charged with all enhancements found true. On July 6, 2006, appellant waived a jury trial on the prior prison term allegation and the court found it true.
On August 17, 2006, the court imposed an aggregate term of 45 years 8 months in state prison: as to count I, the midterm of three years, with consecutive terms of 10 years for the firearm enhancement, 10 years for the gang enhancement, and one year for the prior prison term enhancement; and as to each of counts II through VI, consecutive terms of one year (one-third the midterm), plus three years four months for the firearm enhancements (one-third the midterm).
On October 11, 2006, appellant filed a timely notice of appeal.
FACTS
Appellant was convicted of six counts of second degree robbery based on a series of offenses he committed in Tulare County. On appeal, he contends the court improperly permitted police officers to testify about their review of the surveillance videotapes and their identifications of appellant from those tapes, and that the court should have excluded evidence that appellant assaulted an associate who turned in the weapon believed to have been used in the robberies. We will affirm.
Count I—7-11 Store
On July 13, 2005, at approximately 3:55 a.m., Samuel Brown was working as the night clerk at the 7-11 store on South Lover’s Lane in Visalia. There was a customer and a delivery person in the store at that time. Brown testified the store’s doors burst open, and “two masked men brandishing weapons came in and robbed me.” Both men wore caps and “old-fashioned style” red bandanas over their faces. One man was taller than the other. The tall man had a very large caliber pistol, pointed the weapon at Brown, and demanded money. The smaller man ran to the delivery person and forcibly pushed him on the floor at gunpoint.
Brown testified the tall man appeared Hispanic, about five feet ten inches tall, with a medium build and olive skin. The tall man wore a red hat which said “‘Visalia’ or something similar to that.” Brown could not tell if the tall man’s head was shaved because of the hat, but the side of his face appeared to be shaved. Brown was a hunter and familiar with weapons, and described the tall man’s gun as a large caliber semi-automatic weapon, in a bulky style similar to a Ruger, with a stainless steel or nickel barrel, and black or gray outer markings. The tall gunman was “[p]retty large. Intimidating,” and “much taller” than the smaller man. The smaller man also had a weapon but Brown could not describe it.
The prosecution theory was that appellant was the tall gunman wearing the red “Visalia” hat.
Brown testified there was a lot of yelling and the tall man demanded money. Brown gave him the entire cash drawer from the register, which contained over $100. The two men left the store with the money.
At trial, Brown testified he could not identify anyone because the suspects wore hats and bandanas, but appellant was about the same height and physical stature as the tall gunman. The store’s surveillance videotape was played for the jury, and Brown narrated the tape and pointed out the locations of the customer, the delivery person, and himself in the store, and the locations and actions of the two robbery suspects.
Count II—Raul Rodriguez
Raul Rodriguez was an ice cream vendor and pushed his handcart on the streets of Visalia. On July 13, 2005, around 6:00 p.m. or 7:00 p.m., Rodriguez was pushing his cart near Turner Street and Houston Avenue, and it was still daylight. A brown car drove past him, performed a U-turn, and drove toward him. There was a driver and passenger in the car.
A young man emerged from the passenger side of the brown car and approached Rodriguez. The man’s face was not covered and he was not wearing a cap. The man was holding a handgun and pulled something back on it. He pointed it at Rodriguez’s chest and said, in English, “‘Give me your fucking money.’” Rodriguez testified the man had a look of hate toward him. Rodriguez was afraid he was going to be shot, and he gave the man all the money in his pockets; he was not sure how much he gave the man. The man pushed away Rodriguez’s cart, got back in the passenger side of the car, and the car left the area.
Rodriguez was very scared after the incident, but he did not report it to the police because he was in the country illegally, and he thought the police would not believe him. Rodriguez believed that on a previous occasion, he had seen the suspect with other young men at another house as he walked through a neighborhood with his cart.
Count III—Valero Gas Station
On July 14, 2005, Rex Lavrar was the clerk at the Valero gas station on Noble in Visalia. At approximately 1:40 a.m., the business had slowed down so Lavrar sat down to eat something. Lavrar was looking out the front window when he saw two masked men enter the store. Both men wore western-style bandanas tied around their faces, “folded and quartered and pulled over their face kind of like the stagecoach robbers of the old west in westerns.” Lavrar testified one man was taller than the other. The tall man appeared Hispanic, and wore a long-sleeve shirt, a red hat which said “Visalia,” and held a gun. Lavrar testified the weapon was “definitely” a semi-automatic weapon, and that it had a shiny muzzle. Lavrar could not tell if the tall man’s head was shaved because of the hat.
Lavrar testified the tall man walked around the counter, pointed the gun in Lavrar’s face, and told him to open the cash drawer. Lavrar attempted to open the register but it was a new machine and he hit the wrong button. The tall man pointed the gun at him and kept saying, “‘Open the drawer.’” Lavrar tried again, opened the register, and handed over the entire cash drawer, which contained from $40 to $100. The shorter man grabbed an armful of cigarette cartons and the suspects left the store.
At trial, the store’s surveillance videotape and still photographs were introduced, and Lavrar identified himself, the locations and actions of the two suspects in the store, and which suspect had the gun. Lavrar pointed out the semi-automatic handgun’s shiny muzzle and the back of the taller man’s head were visible on the videotape. Lavrar testified the videotape was not the best quality, the store now had better cameras, and the robbery occurred when they were in transition between the different systems.
Count IV—Rozi Chevron Mini-Mart
On July 18, 2005, Mike Hammudeh was the cashier at the Rozi Chevron Mini-Mart on South Lovers Lane in Visalia. Around 7:20 p.m., two men pushed open the doors so hard that Hammudeh thought the glass doors were going to break. Hammudeh looked up and saw two Hispanic men with red bandanas over their faces. One man was taller than the other. The smaller man walked in first, and the taller man had a gun.
Hammudeh thought the tall man’s gun was a large caliber weapon, with a black handle frame and chrome tip. Hammudeh testified he heard the tall man “load” the gun as he walked into the store. The tall man wore a black hat and had a tattoo on his neck. The smaller man was not wearing a hat, and he had a long knife in his left hand.
The prosecution theory was that appellant was the tall man wearing the black hat.
Hammudeh testified the smaller man said, “‘Give me the money, motherfucker.’” The tall man pointed his gun at Hammudeh’s head. Hammudeh was frightened and told them to take whatever they wanted and not hurt him. The smaller man jumped behind the counter and kicked the lottery machine. The smaller man pointed to the register with his knife, broke it, and took the entire cash drawer, which contained cash and checks. The two men left the store and Hammudeh looked outside. He saw the men leave in a brown Toyota Camry, which had apparently been parked on the side of the store.
At trial, the store’s surveillance videotape and still photographs were introduced into evidence. Hammudeh examined the videotape and photographs, and pointed out his location, the locations of other employees and customers, and the locations and actions of the two suspects.
At trial, Hammudeh was asked if appellant looked consistent with the tall gunman. Hammudeh replied he spent more time with the smaller man. Hammudeh asked if appellant could stand up in the courtroom, and appellant did as directed. Hammudeh hesitated and said it was very hard to say.
“Q. So can you or can you not say that’s the man who robbed me?
“A. The way how I see it in the picture and I try to compare right away, I could say.
“Q. You could what?
“A. Yes, I could say, yes.
“Q. Yes what?
“A. Yes, it’s very close as what I see it.
“Q. Close?
“A. Yes.
“Q. But is this the man?
“A. That’s the man.
“Q. Why do you say that?
“A. I say that because I feel it as soon as I walk in, as soon as the way how I look at him.” (Italics added.)
Hammudeh testified he recognized appellant based on his physical features. “Just believe me, if something happened to you, you will remember everything.” Hammudeh believed he had seen appellant at the store on a previous occasion and remembered his face. Hammudeh testified he did not notice tattoos on appellant’s hands, face, or back of his head during the robbery.
Count V—The Second Robbery of Raul Rodriguez
On July 27, 2005, around 6:00 p.m. or 7:00 p.m., Raul Rodriguez was pushing his ice cream cart at Houston Avenue and Giddings Street, near a school, when a pickup truck appeared. The truck drove past him, performed a U-turn, and stopped close to him. The truck was brown or gray, with a dent on the right passenger side, and the license plate said, “SURROZ.” The truck’s occupants were a driver, a front seat passenger, and one person in the back of the truck.
Rodriguez testified a young man got out of the truck’s passenger side, with a red bandana over the lower part of his face; he was not wearing a hat. The man pointed a handgun right at Rodriguez’s chest and said, “‘Give me your fucking money.’” Rodriguez testified the man stood right in front of him, Rodriguez looked into the man’s eyes, and realized he was the same man who robbed him a few days earlier. Rodriguez testified the man seemed to have the same handgun as in the first robbery. Rodriguez was again afraid and gave him all the money from his pockets. Rodriguez did not know how much money he gave the man. The man walked backwards to the truck, got back into the passenger side, and the vehicle left the area.
Rodriguez testified that some neighbors saw the incident and called the police. Rodriguez told the police about both robberies and described the suspect. Rodriguez testified he looked directly into the man’s face, and recognized him as the same person who robbed him earlier that month, based on his looks and voice. Rodriguez testified the robber also had a shaved head. “[T]his had never happened to me before. Never. The first time it happened, his look I kept it in my mind. It stayed in my mind. It was the same look the second time.”
On the morning of August 6, 2006, Rodriguez went to the Visalia Police Department and looked through a “thick” three-ring binder of photographs of Norteno gang members. Rodriguez had gone through several pages of photographs when he turned to appellant’s picture. An officer noticed that Rodriguez became fearful and scared when he looked at appellant’s picture, and Rodriguez identified appellant as the man who robbed him on both occasions. Rodriguez testified he became very scared when he recognized appellant’s photograph.
At trial, Rodriguez again identified appellant and testified he was “[v]ery, very sure” appellant was the man who robbed him twice, and he was scared of appellant. Rodriguez was so frightened by both robberies that he left the United States and returned to his family in Mexico. He appeared for trial with the hope that “someone can be saved from this” and “to say what happened to me,” and intended to return home to Mexico.
Rodriguez reviewed a photograph of appellant with a shaved head, and testified that appellant looked like that when appellant robbed him. Rodriguez acknowledged the photographs of appellant showed tattoos on his neck, the back of his head, and dots on his face. Rodriguez testified he did not notice the tattoos in the photographs until they were pointed out to him, but conceded he could see those tattoos as he looked at appellant in the courtroom. Rodriguez further testified he never noticed any tattoos during the robberies because he focused on appellant’s looks, eyes, and the gun, and he never saw the back of appellant’s head. “Look, this gentleman comes and stands in front of me. I see him with a lot of hate. Now, what is going to draw the attention to this gentleman?” Rodriguez also explained that it seemed to him that all young men have tattoos. “If you see that on a daily basis, you just don’t pay attention to that if you see it in every person.”
Count VI—Cigarettes 4 Less
Saleema Hirani owned and worked at Cigarettes 4 Less on West Noble Avenue in Visalia. Around 6:40 p.m. on July 27, 2005, two Hispanic men rushed into the store. The first man pointed a black handgun at Hirani’s face, and said, “‘Bitch, give me the fucking money.’” The gunman wore a red baseball cap, a red and white checkered shirt, dark pants, and had a red bandana over his face. She could not remember if there was any writing on the red baseball cap.
Hirani was shocked and ran behind the counter to open the register. Hirani pulled cash out of the register, but the gunman said to hand over the entire cash drawer. She handed him the cash drawer and he dropped some of the money. Hirani testified she did not look at the second man but described him as the “fat guy,” who was much heavier than the gunman. The second man grabbed three or four lighters from the front counter. The men left with about $30 to $40 in the cash drawer.
Jason Scott was at a nearby store, and saw the suspects run out of Cigarettes 4 Less while holding a cash register drawer. They had red bandanas over their faces, and at least one person had a gun. Scott testified they jumped into a full-size silver Dodge pickup truck and sped away. Scott noticed a big dent “on the passenger side behind the front door.” Scott tried to get the license plate, “but it still had the Surroz, the Dodge dealership plates were still on it.”
At trial, Hirani was asked if appellant reminded her of the suspect. Hirani testified appellant was not “the fat guy.” She thought appellant’s height was “exactly the same” as the tall man. She could not say that appellant was the tall gunman because “it happened so quickly. And he had the bandanas on, so I can’t tell anything.” She did not notice any tattoos on the robber.
As we will explain post, Detective Randy Lentzner reviewed the surveillance tape of this robbery but Ms. Hirani did not know how to save that segment of the videotape, and it was mistakenly erased and thus not introduced at trial.
The Investigation
On July 27, 2005, the police recovered a Dodge Ram truck which had been abandoned near Houston Avenue in Visalia. The truck had a dent on the right passenger side. It had been stolen around July 25, 2005. The owner testified he bought the brand new truck about one month earlier and it did not have the dent when it was stolen. The stolen truck matched the description of the vehicle used by the suspects in the Cigarettes 4 Less robbery. The vehicle was found less than a block from appellant’s house, and it contained clothing which did not belong to the vehicle’s owner.
As noted ante, on August 6, 2005, Rodriguez identified appellant from a book of photographs as the man who robbed him on both occasions. Rodriguez also reviewed a photograph of the stolen Dodge pickup truck, and identified it as the same vehicle used by appellant during the second robbery of his ice cream cart on July 27, 2005. Since the stolen truck had also been used in the Cigarettes 4 Less robbery, Rodriguez’s identification led the investigators to focus on appellant for the other robberies. The police also learned that on January 6, 2005, an officer conducted an unrelated traffic stop in Visalia and the occupants of the vehicle were appellant, Eusevio Campos, and Hector Navarro. All three men were known members of the Nortenos.
On August 7 or 8, 2005, Detective Lentzner, who was investigating the robberies, asked Sergeant Mike Marquez of the Farmersville Police Department to review the surveillance videotapes of the robberies at 7-11 (count I), Valero gas (count III), and Rozi Chevron (count IV), to determine if he could identify the two robbery suspects. Marquez testified he recognized appellant and Campos as the robbers.
Recovery of the Gun
As the investigation focused on appellant, the police recovered the gun believed to have been used in the robberies based on an incident between appellant’s associates and Erik Gonzales. On August 6, 2005, Gonzales and Landon Kennedy drove to the house where appellant lived with his parents, girlfriend, and brother, Richard, on West Connelly in Visalia. They intended to buy drugs there. About a week earlier, Gonzales had a major misunderstanding with appellant because appellant’s girlfriend falsely accused Gonzales of hitting on her, and appellant’s associate, Joe “Heavy D” Dominguez, beat him up. Gonzales also had a prior disagreement with Richard about drugs.
Gonzales testified that when they arrived at appellant’s house, Dominguez and appellant’s brother, Richard walked out to greet them. They told Gonzales to go inside the house. Gonzales was suspicious because of the prior incidents, stayed in the car and rolled up the window, and told Kennedy to also close his window. Dominguez approached the passenger side, where Gonzales was sitting, and broke the window with a gun. Dominguez pushed his hand through the shattered window and a fight started. Kennedy threw the car into reverse and drove back to Gonzales’s house.
Gonzales testified that when they reached his house, they discovered that Dominguez’s nine-millimeter handgun had fallen on the floor of the driver’s seat during the fight. Gonzales had previously seen Richard Mendoza with that gun—“Richard always had it”—but never saw appellant with it. Gonzales’s mother was upset about the gun, called the police department, and turned it over to an officer. Gonzales testified he never intended to testify against anyone, and he could not stop his mother from turning over the gun. Afterwards, however, she received threatening calls at the house.
Detective Lentzner testified the gun was a Ruger nine-millimeter semi-automatic handgun. It had been reported stolen and the police could not recover any fingerprints from it. Lentzner compared the Ruger nine-millimeter handgun to the weapons he observed on the three surveillance videotapes from 7-11, Valero, and Rozi Chevron, and believed the handgun had the same distinctive characteristics as the weapon used by the robbers.
Search of Appellant’s House and Arrest of Suspects
On August 11, 2005, police officers went to the residence on West Connelly, where appellant lived with his family, to execute a search warrant. Appellant was arrested for the robberies, and his brother, Richard, was arrested for an unrelated matter. Appellant was five feet nine inches tall, weighed about 130 pounds, and was “very, very lean.” Richard was five feet ten inches tall and weighed 190 pounds. Eusevio Campos was arrested the same day.
During the arresting officer’s testimony, the prosecutor called Richard Mendoza to appear in the courtroom, had appellant and Richard stand next to each other, and the officer testified they looked the same as they did when they were arrested. It was also noted that Richard did not have tattoos on his hand or the back of his head, but appellant had a tattoo on the back of his head.
When appellant was arrested, he had tattoos of “Visa” on the back of his head, “Cyclone” on the left side of his neck, and four dots by his left eye. Appellant did not have a tattoo of “N” on his left hand when he was arrested, and apparently acquired such a tattoo while he was in custody, which indicated he was still affiliated with the Nortenos.
The house was searched and the following items were found: two red hats which said “Visalia” in the northwest bedroom, red hats in the living room, and a black hat inside an ice chest in the living room. An officer testified the red hats found in the living room and northwest bedroom were slightly different from each other. “Some of them said Visalia. Some of them said Visa, V-i-s-a. Some of them have white dots on top. Some of them don’t.”
In the southwest bedroom, there were two red and white button-up collar shirts; one shirt had a larger plaid pattern than the other shirt. There was cash in a dresser drawer in the southwest bedroom, a gun cleaning kit under the bed in the southwest bedroom, appellant’s identification card in the southwest bedroom, a red bandana in the northwest bedroom, something with the word “Cyclone” written on it, and a flannel jacket in the northwest bedroom.
Gonzales’s Encounter with Appellant
In May 2006, appellant and Gonzales were both in custody at the Bob Wiley Detention Facility in Tulare County. When Gonzales first arrived in appellant’s unit, appellant called Gonzales over to him. Gonzales intended to explain about the gun and assure appellant that he was not a “rat,” but appellant did not want to hear about it. Appellant asked if Gonzales knew his brother, and Gonzales said yes. They were talking through the door, and appellant hit Gonzales in the head with a piece of cardboard.
On May 28, 2006, about a week after the cardboard incident, appellant and Gonzales were part of a larger group of shackled inmates being escorted back to their unit. While they were in the sallyport, appellant attempted to shake Gonzales’s hand. Gonzales thought appellant was “being a man” and decided to stick out his hand in return. Appellant reached up and slashed Gonzales below the left ear with a small razor. Appellant did not say anything to Gonzales as he slashed him. Appellant stepped back, and three other inmates stepped in and assaulted Gonzales. The officers separated the men and found a small razor on the floor.
As we will discuss in section II, post, appellant contends the court should have granted his motion to exclude Gonzales’s testimony about the slashing as irrelevant and prejudicial. The prosecutor advised the court that there was a pending case against appellant for assault with great bodily injury (§ 245) based on the slashing.
Gonzales testified that appellant slashed him “[b]ecause I was a rat” and turned in the handgun, which led to the search of appellant’s house and his arrest. Gonzales said he did not have a deal with the district attorney to testify against appellant. He had four prior burglary convictions in 2006 and described himself as a “northern dropout,” which meant that other gang members had an “[a]utomatic green light” to beat him up.
Sergeant Marquez’s Testimony
As set forth ante, Sergeant Marquez reviewed the surveillance videotapes from 7-11, Valero, and Rozi Chevron, and determined the two robbery suspects were appellant and Eusevio Campos. At trial, Sergeant Marquez explained the nature of his prior contacts with both men and the reasons for his identifications. Marquez testified he had approximately 60 prior contacts with appellant and was familiar with his clothing, demeanor, mannerisms, and physical characteristics, particularly his “large protruding ears and recessed eyes that sit a little further back in the eye socket.” Marquez explained that appellant walked “with a little bit of a lazy foot,” and “appears most of the time to be solemn, avoids eye contact.” He normally wore clothes which were “overly large” for his body frame. Appellant “kind of walks with a gimp” and “postures himself with one of his legs kind of slanted in, inward.”
Sergeant Marquez also had about 40 to 50 prior contacts with Eusevio Campos, and was familiar with his mannerisms and physical appearance. Campos had “a little bit of a receding hairline that sits up with a rather large forehead.” Campos also had thick eyebrows and “a little longer of a neck.”
As to the videotape from Rozi Chevron, Marquez testified that he recognized Campos as one of the suspects, based on his receding hairline, large forehead, ears, and distinctive eyebrows. Marquez recognized appellant as the other suspect, based on his distinctive walk, where he was not quite favoring his right leg, but “kind of trying to kick that leg out a little bit as he’s walking,” which was the same “gimp that [appellant] has displayed while walking either to me or from me on any of my contacts.” Marquez also identified a tattoo on the back of the suspect’s head, in the open area of the baseball cap, consistent with appellant’s tattoo of “Visa.”
Sergeant Marquez also testified about his review of the videotape of the 7-11 robbery. He recognized appellant as one of the robbers based on his posture, position of his legs, and baggy clothes. Appellant was “cocking” his leg and it was “turned in just a little bit. Cocking it in at the knee, and the rest of the foot comes out now, and he’s like getting ready to take a step.” Appellant had “kind of a solemn posture” where he bends his knees and “kind of cows in a little bit, bends his knees and he kind of slumps forward while looking at you.” Marquez identified the other suspect as Campos.
As to the videotape of the Valero robbery, Marquez identified appellant as one of the suspects based on his large ears “and the deep recessed eye sockets in this picture,” along with his posture and position of his feet. “He’s kind of got his foot bent, and he’s kind of cocked a little bit.” Marquez also recognized appellant based on “the slant of the nose area from the forehead.” Marquez recognized the other suspect as Campos based on his receding hairline, large forehead, and large ears.
Sergeant Marquez testified he was “[v]ery comfortable” with his identifications of appellant from the videotapes “[b]ecause I know [him]. I’ve known [him] for many, many years.” “I’m a hundred percent sure.” Marquez testified he had no animosity toward appellant or Campos and they came from “good, decent families,” but “a crime was committed.”
On cross-examination, defense counsel tried to impeach Marquez with his August 2005 report about the videotapes, in which he wrote that one suspect “‘[c]ould possibly be’” appellant, compared with his trial testimony that he was a hundred percent sure appellant was the suspect.
“Q. Why did your opinion go from could possibly be the guy to a hundred percent sure it’s the guy?
“A. Just a matter of opinion, sir.”
On redirect-examination, the prosecutor noted that in the same report, Marquez had written that based on the videotapes, “‘one of the two suspects was, in fact’” appellant. Marquez testified he was sure of his identifications when he originally watched the videotapes, and still sure at trial.
Also on cross-examination, defense counsel asked Marquez about the exact nature of his prior contacts with appellant. Marquez testified the incidents were consensual encounters during dispatches, and he also made contact with appellant as he was walking down the street, running, or hanging out with a large group. While appellant had a lazy foot or gimp, Marquez had never “paid attention” to whether his right or left leg was the weak one, but he had chased appellant on one occasion and appellant was able to run pretty fast. Marquez had once tried to take a picture of appellant and advised him to straighten up, but appellant said that he could not. Based on all his years of prior knowledge and contacts, Marquez assumed appellant had a disability. Marquez conceded he did not have any medical training on body movement, but his testimony was based on his past experiences and observations of appellant.
Detective Lentzner’s Testimony
As noted ante, the prosecution introduced the surveillance videotapes from 7-11 (count I), Valero (count III), and Razi Chevron (count IV), but the surveillance tape from Cigarettes 4 Less (count VI), was accidentally erased. Hirani, the owner of Cigarettes 4 Less, testified her store had a surveillance camera, but she had just bought the store shortly before the robbery and did not know how to use or rewind the tape. Shortly after the robbery, Hirani called the previous owner, learned how to replay the videotape, and then contacted Detective Lentzner and showed him the videotape of the robbery. Hirani watched the tape with Detective Lentzner, and testified Lentzner took notes and repeatedly ran the tape forward and back to review certain scenes. Hirani testified she did not know how to save the robbery sequence on the videotape, and that footage was accidentally taped over and not saved.
Detective Lentzner similarly testified he went to the store to watch the surveillance videotape with Hirani. Lentzner took notes of his observations while he watched the videotape, and subsequently prepared a report from those notes. Lentzner did not know how to download the robbery video onto a disk, and Hirani told him that it would stay on the disk for 10 days. Lentzner returned to the store six days later with someone who knew how to preserve the sequence, but it had already been taped over.
Since the videotape had been accidentally erased, the prosecution called Detective Lentzner to testify from his report about his review of that tape. Lentzner testified the videotape showed Hirani restocking shelves when the two suspects entered the store. One suspect wore a red and white plaid, short-sleeve shirt with a button-up collar, which was similar to the plaid shirts found at appellant’s house, but Lentzner could not determine whether the plaid pattern was large or small. This same suspect wore a baseball cap with white lettering which seemed to say “Visalia,” and his face was covered with a red bandana. This suspect had a “blue tannish or black” semi-automatic handgun with a shiny chrome tip, “[v]ery consistent” with Hirani’s description of the shiny barrel “sticking out of the very front.”
Lentzner had reviewed the three videotapes from the other robberies, and he “had no doubt whatsoever” that the suspect who wore the baseball cap at Cigarettes 4 Less was the same person who wore the same type of cap in the videotapes of the other three robberies. “It was absolutely the same person. Just weight, the build, mannerisms, the MO, the Modis Operandi of the whole robbery going down, I had no doubt whatsoever that was the same person.” Lentzner also believed that suspect’s red bandana was “[e]xactly” like the red bandana found in appellant’s house.
Lentzner testified that after appellant was arrested, he discovered appellant had the “Visa” tattoo on the back of his head. He again reviewed the surveillance tapes from the three robberies, and realized there “definitely” were dark “marks” on the back of the suspect’s head that were not clear, but were consistent with appellant’s tattoo.
As we will discuss in section I, post, appellant objected to Lentzner’s testimony about the tattoo on the back of appellant’s head and argued Lentzner was not qualified as a forensic expert, and the jury could determine the nature of the image on the back of the suspect’s head. The court overruled the objection and found Lentzner’s testimony was properly admitted as a witness’s lay opinion.
On cross-examination, Lentzner was asked if he could differentiate between appellant and his brother, Richard. Lentzner testified there was a 60-pound weight differential between the brothers, and it was “pretty obvious” the taller suspect did not look like Richard.
Lentzner also testified about the second suspect in the Cigarettes 4 Less videotape, and described him as about five feet eight or nine inches tall, about 250 pounds, and a heavy set person. The second suspect was not wearing a red bandana or mask over his face, but he was wearing a button-up shirt and pulled the collar to cover his face up to his nose. Lentnzer testified that Eusevio Campos had a thin build and was a little shorter than the second suspect. Lentzner testified it “very easy to tell” that Campos was not the second suspect in Cigarettes 4 Less, and that suspect was never identified or apprehended.
Lentzner also testified about his review of the videotapes from the three stores, which had been introduced into evidence, and testified the image of the gun was “most clear” during the robbery at Rozi Chevron. Lentzner testified the videotapes showed the upper receiver was white metal, the pin above the trigger guard was chrome, the hammer was chrome, and there was a little chrome piece sticking out on the tip of the firearm, which was the guide rod. Lentzner testified the gun depicted in the videotapes was “[v]ery, very close” to the Ruger nine-millimeter semi-automatic handgun recovered in this case. “To me, barring comparison with the serial numbers, it is the identical gun, in my opinion.”
Additional Prosecution Evidence
At trial, the witnesses were shown various pieces of evidence recovered during the investigation and asked to compare these things with their observations of the robbery suspects, particularly the red bandana, a red baseball cap which said “Visalia”, and the Rugar nine-millimeter semiautomatic handgun. As to count I, the 7-11 robbery, Samuel Brown testified that, the red cap with “Visalia” was “very similar, if not exactly” the red hat worn by the tall suspect. Brown testified the nine-millimeter semi-automatic handgun looked “very similar” and “almost exactly” like the tall man’s weapon. Brown testified the red bandana found in appellant’s house was “exactly” the same type of “old-fashioned style” red bandana like those worn by both suspects.
As to count III, the Valero robbery, Rex Lavrar identified the red bandana as an exact match of the bandanas worn by the two robbers; the nine-millimeter semi-automatic weapon as “basically” similar to the taller man’s handgun, particularly the shiny muzzle; and the red cap which said “Visalia” as “exactly” like the taller man’s hat.
As to count IV, the Rozi Chevron robbery, Mike Hammudeh testified the nine millimeter semi-automatic handgun was “very close” and “looked like” the tall man’s gun.
Raul Rodriguez, the ice cream vendor (counts II and V), testified the nine-millimeter handgun was similar to the weapon used during both robberies, and the slide was consistent with the piece the robber pulled back during the first robbery. Rodriguez reviewed a photograph of the stolen Dodge pickup truck and testified it was the vehicle appellant used during the second robbery. Rodriguez identified the red bandana as similar to the robber’s bandana.
As to count VI, Cigarettes 4 Less, Hirani identified the red bandana as similar to the gunman’s red bandana. Hirani testified the nine-millimeter handgun did not look like the tall robber’s handgun because the robber’s weapon was a little bit longer. Jason Scott, the witness outside the store, testified the red bandana was similar to the robbers’ red bandanas. Scott testified the stolen Dodge pickup truck looked like the truck that sped away from the store, particularly because of the truck’s color and location of the dent. “I guess if there’s an identical silver truck with a dent like that. I guess there could be two of those.”
Gang Evidence
Visalia Police Officer Luma Fahoum, a member of special gang enhancement unit, testified as the prosecution’s gang expert. Fahoum testified the Nortenos are a predominantly Hispanic male criminal street gang in Tulare County, which identifies with the color red, the number 14, and the letter N. There are about 500 to 700 Nortenos in Visalia. North Side Visalia (NSV) is the predominant subset for Nortenos in Visalia and had at least 300 members. The word “Visa” on gang paraphernalia is short for “Visalia.” Officer Fahoum testified to documentation of prior offenses committed by Norteno and NSV members in Tulare County, including vandalism, grand theft auto, robbery, attempted murder, drive-by shootings, and murder. The Nortenos’ main rivals are the Surenos, who claim the color blue, the number 13, and the letter M.
Officer Fahoum testified appellant was a member of NSV and Nortenos, based on his prior contacts with the police department, appellant’s tattoos, clothing, associations, and admissions. His gang monikor was “Cyclone.” Appellant had tattoos of “Cyclone” on his neck, and four dots on the left hand and one dot on the right. His “Visa” tattoo on the back of his head was short for “Visalia,” but the “S” was crossed out to show disrespect to the letter “S” and the rival Surenos. During his prior contacts with the police, appellant was wearing a red shirt, red belt, and red shoes, and also found in possession of a red bandana, which represented him flying his gang colors. Officer Fahoum was not familiar with appellant’s brother.
Officer Fahoum testified that Eusevio Campos was a member of Varrio Farmas Catorce, a Norteno gang in Farmersville, based on his known associates, gang tattoos, and previous admissions. Appellant and Campos were with another Norteno member during the unrelated traffic stop in January 2005.
Officer Fahoum also testified to his opinion that the robberies herein were gang-related and committed for the benefit of the Nortenos: two gang members or associates acted in tandem, they were wearing gang colors and advertising their gang membership, and the offenses tended to intimidate the victims and public, so that witnesses were less likely to interfere with the gang’s criminal activities. The robberies also generated revenue typically used for the gang’s financial benefit. Officer Fahoum testified the two robberies of the same ice cream vendor, which were committed only by appellant, also were committed for the benefit of the Nortenos based on the vicious nature of the incident, the use of the gun, the showing of gang colors, and the intimidation of the victim.
Appellant and Eusevio Campos were jointly charged with the robberies, and Campos entered into a separate plea agreement. Appellant was convicted of counts I through VI, second degree robbery, with the firearm and gang enhancements found true. On appeal, he raises several issues about the surveillance videotapes. He contends the court should have excluded Sergeant Marquez’s testimony about his review of the three surveillance videotapes, and his identification of appellant and Campos as the two robbers depicted on those tapes. He also contends the court should have excluded the testimony of Lentzner and Marquez, that the videotapes showed the tattoo on the back of appellant’s head, and Lentzner’s testimony that the handgun depicted on the three surveillance videotapes was similar to the semi-automatic handgun recovered in this case.
Appellant further argues the court should have excluded Detective Lentzner’s testimony about his review of the surveillance videotape from Cigarettes 4 Less, and argues that such testimony violated his Sixth Amendment confrontation rights and Crawford v. Washington (2004) 541 U.S. 36 (Crawford), because the videotape had been destroyed and was not available for review during trial.
Appellant next argues that Erik Gonzales’s testimony about being slashed in jail should have been excluded as irrelevant and prejudicial. Appellant raises a general claim of ineffective assistance as to any of these issues not preserved by defense counsel, and that the imposition of consecutive terms violated Cunningham v. California (2007) 547 U.S. ___ [127 S.Ct. 856] (Cunningham), and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
DISCUSSION
I.
TESTIMONY ABOUT THE THREE SURVEILLANCE TAPES
Appellant raises several challenges to the testimony about the three surveillance tapes from 7-11, Valero, and Rozi Chevron. Appellant contends the court improperly allowed Sergeant Marquez to testify about his review of the three surveillance tapes and his opinion that appellant and Campos were the two robbery suspects; Marquez and Detective Lentzner to testify that the videotapes showed a dark spot on the back of the tall gunman’s head consistent with appellant’s “Visa” tattoo; and Lentzner to testify that the handgun recovered in this case was an exact match of the weapon depicted in the three videotapes.
A. Background
Prior to trial, appellant objected to the prosecution’s intent to call Sergeant Marquez to testify about his identification of appellant from the three surveillance videotapes, and argued the identification of suspects on the videotapes was a factual question which should be left to the jury. The prosecutor replied that Sergeant Marquez would testify that he recognized appellant based on his personal knowledge and familiarity with him. The court believed Sergeant Marquez could testify as a lay witness based on his personal knowledge of appellant, but granted appellant’s request for an in camera hearing to determine the nature and extent of Sergeant Marquez’s contacts with appellant.
At the in camera hearing, Sergeant Marquez testified he lived in Farmersville and had known appellant for nine and one-half years. While they did not grow up together, they had matured together and Marquez had a lot of contact with him through elementary and junior high school. Marquez became a police officer in 1997, and had about 60 contacts with appellant since that time. Marquez explained the nature of those contacts:
“Just being unruly. The times that I had contact with him, I was on patrol for a short time, and I could see that he was starting to go towards gang activity, not coming home, running away from home, disobeying his parents.”
Marquez had arrested appellant a few times.
Marquez testified that he had reviewed the surveillance videotapes from the various stores, and had identified appellant as one of the robbery suspects “[t]hrough his distinctive appearance, his facial appearance. He has large protruding ears and his eyes are recessed into the sockets of his eyes. He’s not a very hard character to pick out.” Appellant always wore clothes that were baggy and too big for him. Appellant walked with “somewhat of a limp foot or of a lazy foot type ... of stride and the kind of way that he positions his leg when he’s standing.” Marquez also observed a sequence when he could see a tattoo on the back of the suspect’s head, consistent with the tattoo on the back of appellant’s head. Marquez testified he was able to observe appellant’s distinctive characteristics on the videotapes, which strengthened his opinion that appellant was one of the suspects. “I just know him.” Marquez conceded appellant’s brother also had “[s]omewhat” large ears.
The court overruled appellant’s objections and found Sergeant Marquez could testify as a lay witness based on his personal knowledge of appellant, pursuant to People v. Mixon (1982) 129 Cal.App.3d 118 (Mixon) and People v. Perry (1976) 60 Cal.App.3d 608 (Perry).
“And in this particular case if you have anybody, and I don’t care if it’s an officer or anybody, relative, who can look at that tape and say that, in my opinion, is or isn’t the defendant, generally that is of some relevance.”
However, the court admonished the prosecutor not to ask Sergeant Marquez about appellant’s prior arrests or criminal activities, which would be irrelevant and prejudicial.
The prosecutor requested to ask Sergeant Marquez about his identification of appellant’s accomplice as Eusevio Campos, based on his observation of the videotapes, and that he would tie together appellant and Campos to the robberies. The court found that evidence admissible but excluded any references to the ultimate disposition of Campos’s case.
During trial, Sergeant Marquez testified as set forth ante, about his familiarity with the physical appearances and mannerisms of both appellant and Eusevio Campos. Defense counsel objected and requested a sidebar, and argued Marquez’s testimony about Campos was going beyond the scope of both the in camera hearing and Detective Lentzner’s report about Marquez’s observations. The court replied that it had ruled that Marquez could also testify about Campos based on his personal knowledge of his appearance. The prosecutor stated that Detective Lentzner’s report contained Marquez’s observations and identifications of both appellant and Campos from the videotapes, and had been included in the discovery given to the defense.
Defense counsel realized he had a copy of that report, but argued that Sergeant Marquez’s testimony at the in camera hearing failed to lay a sufficient foundation for his personal knowledge of Campos, and that the jury should make the determination of whether Campos was depicted in the videotapes. The court overruled counsel’s objections:
“Two people commit a robbery. The prosecutors are well within—it would just make common sense to try to identify both alleged robbers and then try to say that independently of an eyewitness identification they are connected. It’s just evidence. I don’t see any problem with it. If he knows him, he can identify him.”
During Sergeant Marquez’s testimony, defense counsel objected to his opinion that the suspects were appellant and Campos. The court overruled the objection and instructed the jury:
“[T]his is a lay opinion, ladies and gentlemen, what this officer believes. He’s not an expert more than you are as far as identification, but he’s testified that he knows these individuals.”
When Sergeant Marquez testified he was very sure about his identifications of appellant from the videotape, appellant objected to Marquez giving a legal conclusion. The court asked Marquez, “How sure are you?” Marquez replied, “A hundred percent, Your Honor.” The court overruled appellant’s objection.
B. Sergeant Marquez’s Identification Testimony
A witness must have personal knowledge of a subject for the testimony about it to be admissible unless the witness is testifying as an expert. (Evid. Code, § 702, subd. (a).) Evidence Code section 800 provides: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” (Evid. Code, § 800, subds. (a), (b).) “Lay opinion testimony is admissible where no particular scientific knowledge is required, or as ‘a matter of practical necessity when the matters ... observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.’ [Citations.]” (People v. Williams (1988) 44 Cal.3d 883, 915.)
The identity of the perpetrator of an offense whose image was caught on film or videotape is a proper subject for lay opinion testimony. (People v. Ingle (1986) 178 Cal.App.3d 505, 513; Perry, supra, 60 Cal.App.3d at pp. 614-615.) There are “two predicates for the admissibility of lay opinion testimony as to the identity of persons depicted in surveillance photographs: (1) that the witness testify from personal knowledge of the defendant’s appearance at or before the time the photo was taken; and (2) that the testimony aid the trier of fact in determining the crucial identity issue.” (Mixon, supra, 129 Cal.App.3d at p. 128.)
Such testimony “does not invade the province of the trier of fact, but rather is submitted as an aid in the determination of the ultimate question of the identity of the culprit and the defendant’s guilt or innocence.” (Perry, supra, 60 Cal.App.3d at p. 615.) The testimony can aid the trier of fact if the photograph is unclear, the defendant’s appearance has changed, “or where for any reason the surveillance photo is not conclusive on the identity issue.” (People v. Ingle, supra, 178 Cal.App.3d at p. 513; Mixon, supra, 129 Cal.App.3d at p. 131.)
Another concern is whether testimony by law enforcement officers that they had prior knowledge of the defendant “will ‘increase the possibility of prejudice to the defendant in that he [is] presented as a person subject to a certain degree of police scrutiny.’ [Citation.]” (Mixon, supra, 129 Cal.App.3d at p. 129.) However, the potential for prejudice will be minimized, and the evidence will be admissible, if the “foundational facts supporting the officers’ knowledge are established outside the jury’s presence.” (Id. at pp. 132-133.)
Generally, the admission of such lay opinion testimony by a law enforcement officer is within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. (Mixon, supra, 129 Cal.App.3d at p. 127.) The court must make certain the probative value of the evidence is not outweighed by the prejudice that arises from the inference that the defendant is known to police. (Evid. Code, § 352; Mixon, supra, 129 Cal.App.3d at p. 129.)
“‘... [U]se of lay opinion identification by policemen or parole officers is not to be encouraged, and should be used only if no other adequate identification testimony is available to the prosecution.’ [Citation.] [¶] This opinion should not be interpreted to stand for the proposition that if non law enforcement testimony is available, law enforcement identification testimony must be excluded. The trial courts, in weighing possible prejudice, must determine if the non law enforcement testimony available is ‘adequate.’ The prosecution should not be forced to rely on testimony that is weak simply because it comes from an individual not involved in law enforcement. The trial judge maintains the discretion to determine if the prejudicial effect of the officer’s testimony substantially outweighs its probative value (Evid. Code, § 352), and such a discretionary ruling will be overturned only if there is a clear abuse of discretion.” (Mixon, supra, 129 Cal.App.3d at pp. 134-135, italics in original.)
We will not disturb a trial court’s exercise of discretion under Evidence Code section 352 except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Jones (1998) 17 Cal.4th 279, 304.)
In Mixon, two police officers identified the defendant as the subject partially depicted in a surveillance photograph of a robbery. The officers’ personal knowledge of the defendant was explored at a hearing outside the presence of the jury. One of the officers had seen the defendant numerous times in his 10 years on the police force, including two weeks before the robbery, had been within speaking distance of the defendant several times and was familiar with his features, but had not conversed with him. (Mixon, supra, 129 Cal.App.3d at pp. 129-130.) The other officer became acquainted with the defendant about eight years before the hearing and had seen him “‘quite a few’” times, although not very often in the year preceding the robbery; he had been the defendant’s counselor at CYA and had spoken to him face-to-face for periods of up to two hours. Both officers quickly identified the subject in the photograph as the defendant. (Mixon, supra, 129 Cal.App.3d at p. 130.)
Mixon held the prosecution had established a personal knowledge foundation for the officers’ identification based on their prior contacts with the defendant, and the testimony could be useful to the jury because it could aid in identifying the partially depicted subject in the surveillance photograph. (Mixon, supra, 129 Cal.App.3d at pp. 131-132.) While the jury also had the defendant’s booking photograph for comparison, “the officers’ testimony was nonetheless helpful in that their previously acquired familiarity with [the defendant’s] features could aid identification of the partially depicted subject in the surveillance photo. Moreover, a ‘mug shot’ reveals its subject in only two poses in a particular lighting; the officers—particularly Officer Burks—had seen [the defendant] in a variety of contexts both indoors and outdoors and could aid the jury in identifying the person in the surveillance photo, taken at a downward angle in somewhat weaker lighting and of a partially obscured subject. Further, the jury took both the surveillance and arrest photos, along with the other exhibits, into the jury room and could easily have made the comparison suggested by [the defendant].” (Id. at pp. 131-132.)
As in Mixon, the trial court herein properly admitted Sergeant Marquez’s identification testimony as to appellant and Campos, as to both foundational personal knowledge and aiding the jury. Marquez set forth his lengthy acquaintance and familiarity with both men, and his personal knowledge of their distinctive physical and facial characteristics. The witnesses herein repeatedly commented that the videotapes were not the best quality, such that Marquez’s testimony aided the jury’s identification of the two men depicted in the videotapes. Marquez had seen appellant and Campos in a variety of contexts and different situations, such that his identification testimony was more probative than if the jury simply reviewed mugshot photographs. (See Mixon, supra, 129 Cal.App.3d at pp. 131-132.) Moreover, Marquez went into great detail as he explained the reasons he identified the men as appellant and Campos, and pointed out their distinctive physical characteristics to the jury. In addition, the jury requested to watch all the videotapes during deliberations, which indicates the jury did not simply accept Marquez’s testimony but reviewed the videotapes to determine the factual issues for themselves.
Appellant asserts Marquez’s identification of Campos was inflammatory and prejudicial because it led the jury to conclude he was guilty by association. While Marquez identified Campos as the accomplice in the 7-11, Valero, and Rozi Chevron robberies, Detective Lentnzer testified that the second suspect in the Cigarettes 4 Less videotape did not match Campos’s description and Campos was clearly not the other suspect in that crime. In addition, it was undisputed that Raul Rodriguez was confronted by a single gunman, and the prosecution never sought to tie Campos to either of the Rodriguez robberies. Thus, Marquez’s identification of Campos was strictly limited to his appearance in the three surveillance videotapes, Marquez similarly identified appellant as the other robber in those tapes, and there was no effort to tie appellant to those robberies simply by his association with Campos.
Appellant complains that the jury herein could have been improperly influenced by Sergeant Marquez’s testimony since he was an officer and he described the nature of his prior law enforcement contacts with appellant. As in Mixon, the foundational facts herein were established at the in camera hearing—that Marquez had known appellant since they were both young and continued to have contacts with him after he became an officer. During the trial, the prosecutor did not raise the exact nature of Marquez’s contacts before the jury. During cross-examination, however, defense counsel asked Marquez for details about his prior law enforcement contacts with appellant. While appellant may assert that such questions constituted ineffective assistance, the entirety of counsel’s cross-examination questions reveals a clear tactical purpose—to undermine Marquez’s claims that he recognized appellant on the videotapes based on his alleged disability. Marquez admitted most of his contacts with appellant occurred in group settings, he never “paid attention” to whether appellant’s right or left leg was the weak one, he simply assumed appellant had a disability, and he conceded he did not have any medical training on body movement. Counsel did not address Marquez’s lifelong acquaintance with appellant, as set forth in the in camera hearing, most likely to avoid bolstering the credibility of Marquez’s personal knowledge of appellant’s physical and facial characteristics.
The trial court thus properly found a sufficient foundation to admit Sergeant Marquez’s opinion testimony as to both appellant and Campos, such evidence aided the trier of fact given the poor quality of the videotapes and the lack of eyewitnesses identifications to the three convenience store robberies, and the probative nature of the evidence outweighed any prejudicial effect.
C. Further Testimony about the Surveillance Videotapes
Appellant raises the same challenges to additional testimony from Sergeant Marquez and Detective Lentzner about their review of the three surveillance videotapes of the 7-11, Valero, and Rozi Chevron robberies—that they saw a dark area on the back of the suspect’s head that was consistent with appellant’s tattoo, and Lentzner’s testimony that the robbery weapon shown in the videotapes was the same nine-millimeter handgun recovered in this case. Appellant argues these issues were factual questions which should have been left to the jury, and there was a strong likelihood the jurors would have simply accepted the officers’ testimony without making their own factual determinations.
As with his challenge to Sergeant Marquez’s identification testimony, appellant’s arguments on these points are also merit less because the officers relied on their own personal knowledge of the issues, and their testimony was helpful to the jury because the videotapes were not the best quality. Both Marquez and Lentzner had personal knowledge of the “Visa” tattoo on the back of appellant’s head. Marquez and Lentzner offered this testimony while playing the videotapes to the jury, and explaining exactly what they were looking at which resembled the tattoo on the back of appellant’s head. None of the witnesses noticed such a tattoo on the back of the tall gunman’s head, most likely because he always wore some type of cap and bandana tied around his head which could have obscured the area.
As for the tall robber’s weapon, the eyewitnesses described a weapon with a slide and distinctive silver or chrome features on the trigger, top, and tip. Detective Lentzner again relied on his personal knowledge and demonstrated to the jury the reasons why the semi-automatic weapon recovered in this case was identical to the weapon depicted in the surveillance videotapes, and played back the videotapes to point out the corresponding chrome features of the robber’s handgun.
Appellant asserts the officers’ identification testimony on these points was prejudicial. However, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The court did not abuse its discretion in admitting this evidence given the strong probative value.
II.
DETECTIVE LENTZNER’S TESTIMONY ABOUT THE CIGARETTES 4 LESS VIDEOTAPE
As explained ante, Detective Lentzner reviewed the surveillance videotape of the robbery at Cigarettes 4 Less and prepared a report about his observations, but the tape was accidentally erased prior to trial and thus not introduced before the jury. Appellant contends the court improperly permitted Lentzner to testify about his observations of that videotape, and his testimony violated the confrontation clause and Crawford, because the tape was erased and there was no evidence that appellant could use to cross-examine the reliability of Lentzner’s account of what he saw on the tape.
A. Background
During the pretrial motions, appellant moved to exclude Detective Lentzner’s testimony about his review of the Cigarettes 4 Less videotape, which had been accidentally erased. Appellant argued Lentzner’s testimony was hearsay because the clerk was the percipient witness and could provide the best description of the incident. Appellant also argued Lentzner’s testimony would be prejudicial since the tape did not exist, and “[h]e can pretty much give whatever version he wants of what he saw.” “He can’t even review [the tape] to refresh his recollection. So I have limited cross-examination abilities there. It’s probably not the best evidence.” (Italics added.)
The prosecutor explained the circumstances surrounding the erased videotape, Lentzner took notes when he reviewed the tape with the clerk, and Lentzner’s testimony was the best evidence since the tape was accidentally erased. The prosecutor argued Lentzner’s testimony would not be hearsay because “there are no words [on the tape] asserted for the truth of the matter.”
The court held that Lentzner could testify as to his review of the Cigarettes 4 Less videotape.
“I think that the issue then is whether or not it would be somehow inappropriate to have somebody see a tape that was later destroyed and be able to testify as to what he saw in that tape. [¶] I don’t see any particular reason that that can’t be done. He’s a witness. He saw a tape. There can be a foundation laid that the tape was a tape of that incident, and then he can describe what he saw on the tape. I’ll allow it.”
B. Analysis
In Crawford, the United States Supreme Court held that a declarant’s testimonial hearsay is inadmissible under the confrontation clause unless the declarant is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 68.) Only “‘testimonial statements’” cause “the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” (Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 2273].) As to testimonial statements, “the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial.” (People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14, italics in original.)
Appellant’s Crawford argument is based on the premise that all the surveillance videotapes in this case were writings, statements, and thus hearsay, and the surviving videotapes were admissible pursuant to the business records exception to the hearsay rule. Appellant takes this argument to the next level and asserts the Cigarettes 4 Less videotape was similarly a hearsay “statement,” the videotape was a “testimonial statement” because the surveillance cameras were installed to capture possible criminal activity in the store, the videotape was erased and not introduced at trial, Lentzner’s testimony about the tape amounted to his “interpretation” and “reciting someone else’s statement of what occurred at the store, and who did it,” and Lentzner’s testimony about the hearsay testimonial statement (the videotape) violated Crawford since the tape was not available to support cross-examination. Appellant asserts “there was no meaningful ability to cross-examine on this because the surveillance tape, effectively here the ‘declarant,’ was destroyed. In effect, Officer Lentzner could have said anything in describing the tape, with no mechanism for the defense to test the veracity of his statements.”
Appellant is correct that a videotape is equivalent to a “writing” for purposes of the Evidence Code. (Evid. Code, § 250; People v. Rich (1988) 45 Cal.3d 1036, 1086, fn. 12.) However, appellant’s Crawford argument is based upon a false premise—that the surveillance videotapes of the robberies were “writings” and thus “statements” within the meaning of the hearsay rule. Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), italics added.) Evidence Code section 225 defines a “[s]tatement” as “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” Nonverbal conduct may only qualify as a “statement” if the conduct was intended by the declarant as a substitute for oral expression. (See, e.g., In re Dorinda A. (1992) 10 Cal.App.4th 1657, 1663; People v. Clark (1970) 6 Cal.App.3d 658, 668.)
“For purposes of the hearsay rule, conduct is assertive if the actor at the time intended the conduct to convey a particular meaning to another person. [Citation.] For example, a nod of the head in response to a question calling for a yes-or-no answer, or a gesture pointing to a particular person when asked to identify a perpetrator, are examples of assertive conduct.” (People v. Jurado (2006) 38 Cal.4th 72, 129.)
Thus, “silence (i.e., passive nonverbal behavior) may amount to a ‘statement’ if it is intended so to be.” (People v. Meza (1987) 188 Cal.App.3d 1631, 1646.) An individual’s reaction to a question asked by the police could constitute assertive conduct and, therefore, a statement within the meaning of Evidence Code section 225. (In re Paul T. (1971) 15 Cal.App.3d 886, 892; People v. Clark, supra, 6 Cal.App.3d at p. 668 [admissibility of wife’s emotional reaction to question asked of her husband during police interrogation]; People v. Snow (1987) 44 Cal.3d 216, 227-228 [defendant’s lack of emotional reaction to the news that the only witness against him had just been murdered not hearsay and admissible as probative of knowledge]; People v. Mayfield (1972) 23 Cal.App.3d 236, 240 [declarant’s conduct of pointing to a photograph in response to a question is assertive conduct and hearsay], reversed on other grounds in People v. Hernandez (2004) 33 Cal.4th 1040, 1052, fn. 3.)
The surveillance videotapes of the robberies, including the erased tape from Cigarettes 4 Less, do not consist of hearsay statements, and thus do not trigger Crawford’s analysis of testimonial hearsay. There was no evidence the videotapes had soundtracks with audio statements, or that the suspects displayed nonverbal assertive conduct intended as statements. Instead, the tapes constituted demonstrative evidence:
“Evidence is defined as ‘testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.’ (Evid. Code, § 140.) Photographs and videotapes are demonstrative evidence, depicting what the camera sees. (See People v. Carpenter (1997) 15 Cal.4th 312, 385-386; see also People v. Carter (1957) 48 Cal.2d 737, 751.) They are not testimonial and they are not hearsay, that is, ‘evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated....’ (Evid. Code, § 1200.)” (People v. Cooper (2007) 148 Cal.App.4th 731, 746, italics added.)
We thus conclude that the surveillance videotapes of the robberies were demonstrative evidence. The tapes did not contain nonverbal assertive conduct or testimonial statements being offered for the truth of the matter, and Crawford’s Sixth Amendment analysis is not implicated by the admission of nonhearsay. (People v. Mendoza (2007) 42 Cal.4th 686, 698.) The trial court properly permitted Detective Lentnzer to testify about his review of the Cigarettes 4 Less videotape, he was subject to extensive cross-examination as to exactly what he observed on that tape, and appellant’s confrontation rights were not violated by the admission of his testimony in the absence of the videotape.
III.
ASSAULT OF ERIK GONZALES
Appellant contends the court should have excluded Gonzales’s testimony about the incident when appellant slashed him in jail because it was only relevant as inadmissible propensity evidence, the assault was attenuated from the charges in this case, and the evidence was inflammatory and prejudicial.
A. Background
Prior to trial, the prosecution moved to introduce Gonzales’s testimony about the jail assault because it tied appellant to the nine-millimeter handgun found in Gonzales’s car. The prosecutor argued the evidence was relevant because appellant tried to discourage Gonzales from testifying against him. Appellant objected and argued Gonzales’s connection to this case, and the alleged retaliation for turning in the gun, were not clearly shown, too attenuated, and prejudicial. The prosecutor replied the nine-millimeter handgun was connected to appellant’s residence, and it matched the weapon depicted in the surveillance videotapes.
The court noted the prosecutor’s offer of proof was that the surveillance videotapes depicted the nine-millimeter handgun, and that gun was connected to appellant’s house. The court found that appellant’s attempt to intimidate Gonzales was “certainly relevant evidence” and probative, and outweighed any prejudicial effect. “Based upon the seriousness of the witness intimidation, I think it’s something that the jury should be able to weigh. So I’ll allow that.”
The jury herein was instructed pursuant to CALCRIM No. 371:
“If the defendant tried to hide evidence or discourage somebody from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt can not prove guilt by itself.”
B. Analysis
CALCRIM No. 371 makes clear to the jury that certain types of conduct on defendant’s part “could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224 [referring to former CALJIC No. 2.06].) “‘[I]n order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference.’ [Citation.]” (People v. Hart (1999) 20 Cal.4th 546, 620; People v. Wilson (2005) 36 Cal.4th 309, 330.) There need only be some evidence, not conclusive evidence, of the facts giving rise to the inference. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.) “The cautionary nature of the instruction[] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.” (People v. Jackson, supra, 13 Cal.4th at p. 1224.)
Appellant asserts Gonzales’s testimony about the slashing constituted inadmissible propensity evidence, and was not relevant or probative for any other purpose. However, Gonzales’s testimony about the slashing was highly relevant evidence from which the jury could infer that appellant was trying to suppress his testimony about the handgun. Gonzales admitted he had a prior misunderstanding with appellant, but testified that appellant slashed him because he was a “rat” for turning in the handgun that Dominguez accidentally dropped into the car, which appellant believed led to the search of his house and arrest. Such evidence thus raised the inference that appellant attacked Gonzales in an effort to prevent him from testifying about the gun.
Appellant argues the handgun itself was not connected to the robberies, and the assault upon Gonzales was the only evidence which linked the handgun to appellant. However, the gun was not attenuated from appellant’s involvement in these robberies. The evidence established that Dominguez was one of appellant’s associates, he emerged from appellant’s house in possession of that weapon and accidentally dropped it in the car during the fight with Gonzales, the incident occurred within days of the last robbery, the weapon was a Ruger nine-millimeter semi-automatic handgun with a chrome hammer and a chrome-like tip, it was almost an exact match of the weapon observed in the robbery videotapes, and, more importantly, it matched the description provided by the 7-11 clerk, Samuel Brown, who testified the tall robber had a large caliber semi-automatic weapon, in a bulky style similar to a Ruger, with a stainless steel or nickel barrel, and black or gray outer markings.
Appellant asserts Gonzales’s testimony about the slashing was prejudicial and attenuated from the issues in this case. However, all evidence that tends to prove guilt is prejudicial. “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.” (People v. Yu (1983) 143 Cal.App.3d 358, 377.) The section is not designed to avoid the prejudice or damage to a defense that naturally flows from relevant probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) Gonzales’s testimony was highly probative because it tended to show appellant assaulted him because of his role in turning in the handgun to the police, and the jury was properly instructed as to the admissible inferences from such evidence. The court was not required to exclude that evidence simply because it was damaging.
Appellant raises an ineffective assistance claim as to any of the appellate issues in this case which were not preserved for review by defense counsel. Given defense counsel’s objections as to the videotapes and Gonzales’s testimony, we need not reach the ineffective assistance issues.
IV.
CONSECUTIVE SENTENCES
Appellant contends the court improperly imposed consecutive sentences in violation of his Sixth Amendment right to a jury trial, Cunningham, and Blakely. In his reply brief, appellant acknowledges this issue was resolved against him in People v. Black (2007) 41 Cal.4th 799, 821-823 (imposition of consecutive sentences does not violate the Sixth Amendment, Cunningham, or Blakely), but raises the issue to preserve it for further review. We note that this issue was resolved in Black, and acknowledge appellant’s preservation of this issue for possible further review.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J., DAWSON, J.