Lead
Following a series of robberies in August and September 2012, a San Francisco police officer reviewed police reports of the crimes and surveillance video of eight of them before arresting defendants and appellants Bryan Alexander and Ray Farr.
In April 2017, appellants were charged in a first amended information with 14 counts of second-degree robbery ( Pen. Code, § 211 );
Prior to the filing of the amended information, Alexander moved under section 1538.5 to suppress evidence discovered pursuant to the warrantless arrest of himself and Farr, and Farr joined in the motion. In June 2016, following a hearing, the trial court denied the motion.
In May 2017, pursuant to a negotiated disposition, Alexander pleaded guilty to three counts of robbery (counts 12, 23, and 26) and admitted a prior conviction for attempted robbery and one prior prison term. Farr pleaded guilty to two counts of robbery (counts 5 and 14) and admitted four prior prison terms.
In June 2017, in accordance with the plea bargain, the trial court sentenced Alexander to 14 years in prison, consisting of four years on count 12, two years on count 23, two years on count 26, five years for the prior conviction of attempted robbery (§ 667, subd. (a)(1)), and one year for the prior prison term.
Both Alexander and Farr appealed.
I. The Trial Court Did Not Err in Denying Appellants' Motion to Suppress
The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." ( U.S. Const., 4th Amend.) Under section 1538.5, subdivision (a)(1)(A), a defendant may move to suppress evidence on the ground that a "search or seizure without a warrant was unreasonable." "A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. [Citation.] 'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' " ( People v. Redd (2010)
" '[A] warrantless arrest by a law [enforcement] officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.' " ( People v. Thompson (2006)
The central issue on appeal is whether the arresting officer's testimony regarding the robbery surveillance videos was admissible and sufficient to establish probable cause for the warrantless arrest of appellants.
A. Sergeant Maguire's Testimony at the Hearing on the Motion to Suppress
San Francisco Police Sergeant Thomas Maguire investigated a series of 10 robberies in August and September 2012. The suspects were two African-American males, one taller and thinner than the other. Maguire obtained
First, a robbery was reported on August 19, 2012, at the San Bruno Cafe. Another police officer, Sergeant Discenza, gave Sergeant Maguire a surveillance video, saying it came from the cafe robbery. The video showed a single robber in a leather jacket. Maguire identified two photographs as stills from the video, admitted as exhibits 1 and 2.
Second, a robbery was reported on August 26, 2012, at a Round Table Pizza on Mission Street. Sergeant Maguire responded to the scene, interviewed witnesses, and viewed surveillance video that showed two African-American male suspects commit a robbery as described by the witnesses. One suspect was taller and thinner than the other. Maguire believed one of the two suspects was also the perpetrator of the San Bruno Cafe robbery.
Third, a robbery was reported on August 28, 2012, at a business called Underdog on Irving Street. Sergeant Maguire went to the location and watched a surveillance video, which showed a sole robbery suspect.
Fourth, a robbery was reported on September 7, 2012, at a Burger King. Sergeant Maguire responded to the scene and watched a surveillance video that showed two African-American male suspects, one taller and thinner than the other. Maguire believed they were the same two suspects he had seen in the video from the Round Table robbery. The shorter and heavier suspect was wearing a brown long-sleeved shirt and black shoes with white soles. Maguire identified two photographs as stills from the video, admitted as exhibits 4 and 5.
Fifth, a robbery was reported on September 10, 2012, at a business called "Uniqlo Services" on Ocean Avenue. Sergeant Maguire obtained the police report and surveillance video. The video showed two African-American male suspects, one taller and thinner than the other. Maguire identified one photograph as a still from the video showing a person who he believed to be the shorter suspect, admitted as exhibit 6. He was wearing black shoes with white soles, like those worn by the shorter suspect in the Burger King robbery.
Sixth, a robbery was reported on September 11, 2012, at a business called "The Hot Tubs" on Van Ness Avenue. Sergeant Maguire obtained the police report and surveillance video of the incident and went to the scene the day after the robbery. The video showed two African-American male suspects, one taller and thinner than the other. Maguire identified four photographs as
Seventh, a robbery was reported on September 14, 2012, at a Subway shop on Polk Street. Sergeant Maguire read the police report and viewed the surveillance video that was collected in the investigation. He also went to the scene and spoke to people who described the incident. The shop looked the same as it did on the video, and the witnesses' description of the robbery matched what he saw in the video. The video showed two African-American male suspects, one taller and thinner than the other. Maguire identified two photographs as stills from the video, admitted as exhibits 11 and 12.
Sergeant Maguire arrested appellants on September 16, 2012. At 5:54 p.m. on that day, he heard a broadcast reporting a robbery at a restaurant called "Sweet Chinito" on Mission Street. The suspects were described as two African-American men, one taller and one shorter. Maguire thought they might be the perpetrators in the robberies he was investigating.
After hearing the broadcast about the Sweet Chinito robbery, Sergeant Maguire went to the area of 7th Street and Market Street, because the dispatch said the victim's cell phones were stolen and stolen cell phones are often sold in that location. He arrived in the general area in an unmarked vehicle about 20 minutes after the broadcast and observed two men cross the street about 12 feet in front of him. He "immediately recognized" them as the suspects in the robberies he had been investigating. Both were African-American, and one was taller and thinner than the other. Maguire noticed the shorter man was wearing black shoes with white soles similar to those he had seen in several videos, as well as a leather jacket which resembled one worn by the suspect in the San Bruno Cafe robbery video. The shorter man's height, weight, build, face, and demeanor also resembled one of the suspects. The taller man was wearing dark pants and boots that resembled clothes worn by a suspect in the videos, and his facial features (including facial hair) and confident manner were similar to a suspect in the videos. Maguire identified Alexander as the shorter man and Farr as the taller man he observed on September 16, 2012.
Sergeant Maguire called for backup, followed appellants for a short distance, and then exited his vehicle and apprehended them at gunpoint. Maguire searched a black bag Farr was carrying and found two cell phones. Maguire asked an officer at the Sweet Chinito restaurant to call the phones that had been stolen, and the phones recovered by Maguire rang. Another officer found car keys on Alexander that were connected to a white Chevy
Sergeant Maguire identified five photographs of appellants taken on September 16, 2012, admitted into evidence as exhibits 13 through 17.
B. The Trial Court's Ruling
Appellants sought an order suppressing all evidence obtained as a result of the warrantless arrest. After argument from counsel, the trial court denied the motion to suppress. The court said it credited Sergeant Maguire's testimony that "he immediately recognized [appellants] as the suspects whom he had viewed on multiple times in multiple videotapes of prior and relatively recent robbery incidents." The court further found that some of the stills from the videos corroborated Maguire's testimony. Although the quality of the images varied, the court observed that the photos of the San Bruno Cafe robbery (exhibits one and two) were "fairly recognizable depictions" of Alexander, and the photos from the robbery at The Hot Tubs (exhibits nine and ten) were "pretty well recognizable depictions" of Farr.
C. Admissibility of Sergeant Maguire's Testimony About the Robbery Videos
Appellants contend the prosecution below failed to prove the surveillance videos that Sergeant Maguire described actually depicted the robberies he was investigating. More narrowly, they contend the prosecution failed to meet its burden on that point because Maguire's testimony connecting the videos to the robberies was based on hearsay. As appellant Alexander puts it, "no person with personal knowledge of any incident testified that the video watched by Maguire accurately depicted it, and no person with personal knowledge testified how any incident was video recorded or how any video watched by Maguire was generated."
In arguing that Sergeant Maguire's testimony about the surveillance videos was inadmissible, appellants correctly observe that the hearsay rule was applicable during the hearing on the motion to suppress. (See Hewitt v. Superior Court (1970)
Appellants then proceed to argue that Sergeant Maguire's assertions that the surveillance videos he viewed corresponded to the robberies under investigation was based on inadmissible hearsay. Appellants' contention is misplaced. It is true that Maguire's testimony was not based on his personal knowledge. Instead, his belief that the videos depicted the robberies was based on information received from witnesses to the robberies and other officers, based on the videos being associated with the cases in police records, or based on receiving the videos from the victims. However, "[i]t is settled ... that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt." ( People v. Boyles , supra ,
More to the point, Sergeant Maguire's testimony was not subject to exclusion under the hearsay rule because, even though it was based on (mostly implied) extra-judicial statements, the testimony was not hearsay because it was offered only to show the information he relied on in deciding to arrest appellants. ( Evid. Code, § 1200.) As explained in People v. King (1956)
In the present case, Sergeant Maguire's testimony about how he obtained the surveillance videos and what he observed in the videos was not admitted to prove the videos depicted the robberies or to prove the content of the videos. Instead, the testimony was admitted to inform the trial court of the basis for Maguire's belief he had probable cause to arrest appellants. As explained below (Part I.D., post ), the prosecution was required to show that information was sufficiently reliable to support an objectively reasonable finding of probable cause.
Appellants also contend the prosecution failed to demonstrate the surveillance videos that Sergeant Maguire described were authentic within the meaning of Evidence Code section 1400, which provides that "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (See also People v. Goldsmith (2014)
Although the prosecution was required to authenticate the videos Sergeant Maguire described in his testimony, "the proof that is necessary to authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and
In Goldsmith , the evidence at issue were photographs generated by a red light traffic camera, "offered as substantive proof of defendant's violation." ( Goldsmith , supra ,
In the present case, Sergeant Maguire's testimony about the surveillance videos was only admitted for the purpose of establishing the information he relied on in arresting appellants.
Appellants also argue their counsel were ineffective in failing to object to Sergeant Maguire's testimony under Evidence Code section 1523, which provides that "oral testimony is not admissible to prove the content of
that appellants were the perpetrators in the videos.
Appellants have not shown the court erred in admitting the testimony of Sergeant Maguire at the hearing on the motion to suppress.
Did the information possessed by Sergeant Maguire support a finding of probable cause to arrest appellants? " 'Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.' [Citation.] '[T]he probable-cause standard' ... 'is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.' [Citation.] ' "[T]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt," ' and 'the belief of guilt must be particularized with respect to the person to be searched or seized....' [Citation.] In determining whether probable cause to make an arrest existed, 'we examine the events leading up to the arrest, and then decide "whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to" probable cause....' " ( People v. Turner (2017)
As explained previously in the context of the authentication analysis (Part I.C., ante ), Sergeant Maguire's testimony established the videos were a trustworthy basis upon which to formulate probable cause for arrest. Although his testimony was not detailed, the videos as described had sufficient indicia of reliability and there is little reason to doubt the videos depicted the robberies under investigation. We need not repeat the analysis here.
Appellants also argue Sergeant Maguire could not make a sufficiently reliable identification of them based on his viewings of the surveillance videos. They rely on People v. Walker (2012)
Appellants also contend the trial court, in upholding the warrantless arrest, could not rely on Sergeant Maguire's testimony about the Sweet Chinito robbery broadcast. They rely on the " Harvey - Madden rule,"
Because the surveillance videos viewed by Sergeant Maguire bore indicia of reliability and because those videos provided a sufficient basis for him to recognize appellants, the warrantless arrest of appellants was objectively reasonable under the Fourth Amendment.
II.-III.
DISPOSITION
The trial court's judgment is affirmed as to appellant Farr. As to appellant Alexander, the case is remanded for the trial court to consider whether to strike the five-year enhancement imposed under section 667, subdivision (a)(1). If the trial court decides not to strike the enhancement, it is directed to correct the abstract of judgment to reflect that the enhancement is pursuant to section 667, subdivision (a)(1), rather than section 667.5, subdivision (a). The clerk of the superior court is ordered to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment as to appellant Alexander is affirmed in all other respects.
I concur.
JONES, P.J.
Notes
By separate order this court has consolidated appellants' appeals for purposes of argument and decision.
All undesignated statutory references are to the Penal Code.
The facts of the robberies to which appellants pleaded guilty are not relevant on appeal.
The abstract of judgment in Alexander's case incorrectly describes the five-year enhancement under section 667, subd. (a)(1) as being under section 667.5, subd. (a), which does not provide for a five-year enhancement. We will direct that the abstract of judgment be corrected on remand.
The trial court, going from its memory, referenced exhibit numbers "10 and 11, or perhaps 11 and 12," but it is clear the court meant exhibits 9 and 10, which clearly depict the same person at the same robbery-exhibits 10 and 11 depict two different robberies and exhibits 11 and 12 depict two different people.
King is cited with approval in another First District decision, People v. Romeo (2015)
We need not decide whether a greater showing of authenticity would be required to admit the videos as substantive evidence at trial, because the videos were relevant to the probable cause determination if they bore indicia of reliability (see Part I.D., post) , even if (for some unlikely reason) the videos did not actually depict the charged robberies. (Cf. Goldsmith, supra , 59 Cal.4th at pp. 265-266, 271-272,
The one exception is exhibits 7 through 10, which depict the robbery at The Hot Tubs. That robbery occurred on September 8, 2012, but the timestamps say September 9. Although the discrepancy is unexplained, that does not undermine the fundamental reliability of the video, given the unlikelihood robberies occurred on two consecutive days. The name "The Hot Tubs" is visible in exhibit seven, so there is no question the video came from that business. Further, even if it were true that robberies occurred at The Hot Tubs on two consecutive days, this would not reduce the relevance of the surveillance video in creating probable cause to arrest the perpetrators of the robbery shown in the video.
We reject appellant Farr's suggestion that his counsel
Appellant Farr also contends the trial court erred in limiting his counsel's cross-examination of Sergeant Maguire. Specifically, his counsel asked Maguire to re-confirm details about the suspects in the surveillance videos, such as that they were "two African-American males, one taller and thinner, and the other shorter and heavier." The prosecutor objected, saying "asked and answered as to these specific videos." The trial court sustained the objection, commenting "It is. Let's move things something along. If there's nothing new to add here or if there's some area or cross-examination that's going to be helpful to me. But it doesn't help me to hear the same testimony over and over again." Later, the court stated, "I think I've heard enough on re-cross from this witness," and Farr's counsel responded, "That's fine." Farr has not shown error. "The control of cross-examination is not only within the discretion of the trial court, but, in the exercise of that discretion, the court may confine cross-examination within reasonable limits and may curtail cross-examination which relates to matters already covered or which are irrelevant." (People v. Beach (1983)
Appellant Alexander's citations to cases regarding testimony at trial identifying a person in a photograph or video as the defendant are inapposite to the probable cause issue in this case. (People v. Larkins (2011)
People v. Harvey (1958)
The result in this case is consistent with the underlying objectives of the probable cause standards. As explained in Brinegar v. United States, supra ,
See footnote *, ante .
Dissenting Opinion
I concur with the majority opinion, except to the extent it remands the matter for Alexander to be resentenced pursuant to Senate Bill 1393 (SB 1393). (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 667.) That issue is not properly before us, because Alexander did not obtain a certificate of probable cause.
It is fundamental that an appellant who challenges the validity of his or her plea must first obtain a certificate of probable cause from the trial court. ( People v. Panizzon (1996)
Here, Alexander's plea was part of an agreement by which the court would impose, and did impose, a specific sentence of 14 years, including five years for his prior conviction of attempted robbery ( Pen. Code, § 667, subd. (a)(1) ). ~(CT 421-422, 439)~ Alexander now wants us to
The majority states in a footnote that Alexander was not required to obtain a certificate of probable cause, theorizing that his request for relief does not really attack the plea's validity. (Maj. opn. ante, part III, fn. 16.) The majority cites People v. Buttram (2003)
The majority also cites People v. Stamps (2019)
The retroactivity analysis of Stamps and Hurlic does not persuade me. It implies that, even though a certificate of probable cause is mandated for attacks on plea bargains reached after the effective date of SB 1393 (or SB 620), no certificate would be needed for attacks against plea bargains reached before the law was even in existence. This would be a curious result, which Stamps and Hurlic do not adequately explain.
In my view, Stamps and Hurlic overstate the consequence of retroactivity. Although a new statute may apply retroactively to cases not yet final, that does not mean that every case not yet final falls within the scope of the new statute. Here, SB 1393 applies retroactively, but there is no indication that it was intended to govern cases in which, as here, the defendant had agreed to a conditional plea that mandated a specific sentence without judicial discretion to change it. (See People v. Segura (2008)
Stamps 's and Hurlic 's primary justification for their retroactivity analysis borrows from the idea that new laws are sometimes incorporated into old plea agreements. ( Stamps,
However, the cases on which Hurlic relied are inapposite. Besides the fact that neither of them addressed the certificate of probable cause requirement, the plea agreements in those cases were deemed to incorporate substantive changes in the law, which the Legislature explicitly made applicable to the defendants. ( Doe, supra ,
This distinction makes a difference, as recently explained in two cases from this appellate district that rejected Hurlic 's and Stamps 's analysis. ( People v. Galindo (2019)
As
Lastly, Hurlic asserted that the more specific and newer legislation (in this case, SB 1393) should prevail over the more general and older Penal Code section 1237.5. ( Hurlic,
The majority's footnote in this case also expresses its agreement with the dissent in Fox , to the effect that Alexander is merely trying to " 'raise issues reserved by the plea agreement.' " (Maj. opn. ante, part III, fn. 16, quoting Fox,
Alexander's insistence that the court should be allowed to change his sentence under SB 1393 attacks the validity of his plea, and his argument cannot be heard without a certificate of probable cause. ( Cal. Rules of Court, rule 8.304(b).)
The majority's footnote in this case also questions whether Alexander's appeal would require a certificate of probable cause even if he is not entitled to a remand for resentencing, because "a conclusion that appellant's statutory interpretation is incorrect does not transform his appeal into an attack on the validity of the plea." (Maj. opn. ante, part III, fn. 16.) My point, however, is not that Alexander needs a certificate of probable cause because he is wrong in his interpretation of the statute, but because his request for relief attacks the validity of his plea.