Filed 9/29/17 P. v. Chavez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Robert Chavez was convicted of two counts of petty theft under Penal Code section 490.2[1] for taking merchandise from a Fry’s Electronics store on May 23, 2015, and May 25, 2015. On appeal, he seeks reversal of the conviction based on the May 23 theft. His sole contention is that the court erred in denying his motion under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) because the police failed to preserve an allegedly exculpatory surveillance video of the May 23 incident. We affirm.

BACKGROUND

Following a jury trial, Chavez was convicted of four of the five counts against him. He was found not guilty of making criminal threats, but convicted of battery (§ 242/243, subd. (a), count 2); obstructing a police officer in the performance of his duties (§ 148, subd. (a)(1), count 4); and petty theft (§ 490.2, counts 3 and 5). Count 3 was for taking property from Fry’s Electronics on May 25, 2015, and count 5 related to a separate theft from the same store on May 23, 2015. Conviction for the May 23 petty theft is the sole focus of Chavez’s appeal.

Fry’s Electronics is a retail store with a location in Concord (“Fry’s”). There are approximately 100 security cameras positioned throughout the store, including some outside. Digital video recorders continuously record and save the store’s surveillance video, which is date and time stamped. If video is not saved, it automatically gets recorded over after 15 or 30 days. The surveillance system is operated and monitored by the store’s loss prevention officers, including Dillon Armistead and Byron Pineda, both of whom worked at the store in May 2015.

On May 23, 2015, the alarm was triggered for an emergency exit at the rear of the store, farthest from the store’s main entrance. The emergency exit is not a customer exit, and a big red sign is posted on the door with warnings. Loss prevention officers are also notified when the door is opened. As he arrived to work that morning, Armistead saw the alert and went outside to investigate who had gone through the emergency exit. He saw Chavez leaving the building and followed him for some distance. However, Armistead “didn’t see any merchandise in his [possession]” and “didn’t see anything in his hand,” so he returned to the store to review surveillance video. After doing so he became “a hundred percent sure what it was that [Chavez] took, . . . went [to the sales floor] and actually . . . found the empty packages where [Chavez] was.” These included empty boxes for a Net10 wireless cell phone and Klipsch-brand headphones, which Armistead kept.

Pineda also reviewed the surveillance video that day and “noticed someone had taken merchandise and then exited the emergency exit door.” He was able to determine “[a] pair of headphones and a prepaid cell phone” had been taken. Pineda took a screen shot from the day’s footage and prepared a “Be on the Lookout” report, referred to as a “B.O.L. Report,” an internal document Fry’s used to identify persons who required continuous surveillance in the store. He noted in the B.O.L. Report Chavez concealed a Net10 wireless phone and Klipsch headphones and included a still shot of Chavez from the surveillance video.

Neither Armistead nor Pineda prepared a theft report or reported the incident to the police. Nor did they copy or save the May 23 surveillance video. Pineda said it was not Fry’s practice to save video related to B.O.L. incidents. Armistead explained the store generated one or two B.O.L.s every day, and it was not practical to save every B.O.L. video. “Usually we don’t need it. . . . Usually it doesn’t turn into a case honestly,” he added. Accordingly, consistent with the store’s surveillance video retention practices, the video surveillance footage from May 23 was recorded over.

Two days later, on May 25, 2015, while monitoring the security cameras from the video surveillance room, Armistead saw Chavez in the store again. Through the store’s surveillance system, Armistead watched Chavez enter the headphones aisle. There, he selected a pair of “Beats by Dre”-brand headphones. The headphones were inside a clear clamshell plastic box used as an antitheft device. He moved the headphones to the next aisle and attempted unsuccessfully to unlock the clamshell box. He then pulled out a small razor to open the box, but that, too, did not unlock the box. He temporarily left the headphones, grabbed a backpack for sale elsewhere in the store, and returned to the Beats headphones. He put the headphones, still in the clamshell box, in the backpack.

While Armistead manned the cameras, Pineda covered the sales floor to conduct floor surveillance of the situation. Pineda caught sight of Chavez after he deposited the headphones into the backpack and proceeded to the store’s rear emergency exit, the same door he exited a couple days earlier. Armistead continued to track Chavez from the surveillance room. Chavez opened the emergency exit, notwithstanding the posted warnings, and ran out of the store. The alarm sounded.

Armistead maintained sight of Chavez outside via the store’s exterior security cameras. He saw Chavez run to a nearby street. Pineda followed him. They each called the Concord Police Department to report the incident, and Armistead provided police with a description of Chavez and his location. Out of safety concerns, Armistead joined Pineda outside to assist. Pineda had followed Chavez to a nearby apartment complex where Pineda had seen Chavez hide behind a car.

Eventually, Chavez came out of the apartment complex, passing Armistead and Pineda. Armistead told him to drop the backpack. Again, Chavez ran. Armistead called the police with a further update, and he and Pineda followed Chavez into another parking lot where they lost sight of him. Approximately 15 minutes later, after an officer gave chase to apprehend Chavez, Concord police called Armistead and Pineda and told them someone who matched the description Armistead had been located.

When the two arrived where Chavez had been detained, they spoke with Officer Scott Smith. Separately, they identified Chavez to Officer Smith as the person who had taken merchandise from Fry’s. Officer Lee Lawrence, another officer dispatched to the scene, had handcuffed Chavez. During his search of Chavez, Officer Lawrence observed that Chavez was wearing ear buds that were attached to a cell phone or some kind of music player. Chavez was talkative throughout his arrest. Officer Lawrence heard Chavez ask, “ ‘All of this for stealing?’ ” and mention, “ ‘Prop. 47, bro. It’s a misdemeanor bro.’ ” Chavez also told the officers that they should release him on a citation instead of arresting him based on Proposition 47. According to Officer Lawrence, Chavez further said he would return to Fry’s and anything that he wanted in Concord was free because he would steal it. He also offered to sell Officer Lawrence a brand-new pair of Beats headphones for a hundred dollars. He commented, “ ‘I could open up a Beats store.’ ” He also stated he was at Fry’s the day before and had stolen three more sets of headphones but did not specify any brand or model. Chavez never made reference to Klipsch headphones or a cell phone, which were taken from Fry’s two days earlier.

Officer Lawrence eventually opened the backpack that Chavez had dropped in the process of being arrested. He saw a large plastic security case inside of which was a brand new pair of Beats headphones with a Fry’s price tag. The backpack was returned to Armistead and Pineda. Armistead recognized the backpack and Beats headphones as the ones Chavez took. The police also gave Armistead and Pineda a cell phone and Klipsch headphones that had also been in Chavez’s possession. The cell phone was the same brand as the one that had been taken from the store on May 23. Armistead called another loss prevention officer at the store to compare the unique IMEI code and serial number on the phone with the empty package he had found and saved at the store from the May 23 incident. The code and the serial number matched, and he confirmed the match when he returned to the store. Based on the corresponding packaging and the matching IMEI and serial numbers, Armistead concluded the phone was the one that had been stolen on May 23. While the Klipsch headphones had no serial number, they matched the exact model, color, and packaging of the one that had been stolen on May 23, as well. Armistead testified that Chavez did not have any permission to take Fry’s property on either May 23 or May 25.

While there was no surveillance video from May 23, the surveillance video from May 25 capturing all of Armistead’s observations was copied and converted into a DVD that was published to the jury and marked and admitted into evidence. Chavez did not testify. The defense called no witnesses and presented no evidence.

DISCUSSION

Prior to trial, Chavez filed a Trombetta motion in limine seeking to exclude any reference to and any testimony relying on the May 23 video surveillance. He argued that despite knowing of the video’s existence, the police took no steps to ensure it was preserved. Finding that the Trombetta criteria had not been met, the trial court denied the motion. Chavez now contends the trial court erred and argues his right to due process was violated because he was unable to review the May 23 surveillance video and cross-examine Armistead and Pineda on its contents. We disagree.

Police officers have no duty to “ ‘gather up everything which might eventually prove useful to the defense.’ ” (People v. Hogan (1982) 31 Cal.3d 815, 851, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) Instead, due process imposes “a duty on the state to preserve ‘evidence that might be expected to play a significant role in the suspect’s defense.’ ” (People v. Montes (2014) 58 Cal.4th 809, 837 (Montes); Trombetta, supra, 467 U.S. at p. 488.) Under this standard, due process requires evidence to be preserved if it satisfies a two-part test: (1) the evidence had exculpatory value that was apparent before the evidence was lost or destroyed; and (2) the nature of the evidence is such that the defendant would be unable to obtain comparable evidence by other reasonably available means. (People v. Roybal (1998) 19 Cal.4th 481, 510 (Roybal).) “A trial court’s ruling on a Trombetta motion is upheld on appeal if a reviewing court finds substantial evidence supporting the ruling.” (Montes, supra, 58 Cal.4th at p. 837.) The trial court’s ruling was proper here.

First, there was substantial evidence that the May 23 surveillance video was not exculpatory for Chavez. The video placed Chavez in the store that day before Armistead witnessed him leaving from the store’s emergency exit. Pineda was able to grab a still shot from the video of Chavez’s image for identification purposes for his B.O.L. Report. In addition, both Armistead and Pineda testified that they were able to determine merchandise had been stolen after viewing the May 23 surveillance video. After reviewing the video, Armistead stated he was “a hundred percent sure what it was that [Chavez] took . . . . [He] went [to the sales floor] and actually . . . found the empty packages where [Chavez] was.” Pineda testified that he reviewed the May 23 surveillance video and “noticed someone had taken merchandise” and that he was able to determine headphones and a prepaid cell phone had been taken. That the Net10 phone and Klipsch headphones retrieved from Chavez by police two days later matched exactly the items stolen on May 23 makes the video even more incriminating for Chavez. There are no facts in this record from which the court could conclude the video had apparent exculpatory value.

Second, there was also substantial evidence that Chavez was able to “obtain comparable evidence by other reasonably available means.” (Trombetta, supra, 467 U.S. at p. 489.) Again, both Armistead and Pineda, who had reviewed the May 23 surveillance video, testified at trial, and their testimony was “comparable evidence” reasonably available to Chavez. Each loss prevention officer was asked about what they saw on the May 23 video, and both were subject to cross-examination by Chavez’s counsel on the video’s contents. Defense counsel had the opportunity to ask both witnesses what merchandise they saw Chavez leave with, if any, in an effort to build on Armistead’s percipient testimony.

Chavez argues both Trombetta criteria were met here. Not so. As to the first prong, Chavez contends that the May 23 video “had significant exculpatory value” based on Armistead’s testimony that when Armistead went outside that day he saw no merchandise in Chavez’s possession. Extrapolating from this testimony, Chavez asserts that notwithstanding Armistead’s and Pineda’s testimony that they had observed Pineda “picking up items from store shelves” in the video, “[t]he missing video would have visually confirmed [Armistead’s] observation that when [Chavez] left the store on May 23, 2015, he had nothing in his possession, thereby negating the petty theft allegation in count 5.” This suggestion is speculative in light of the fact that Chavez was found two days later outside the store with the same items that were found missing on May 23. Further, Chavez takes Armistead’s testimony too far. There is nothing in the record to indicate Armistead’s view was unobstructed or his assessment complete, especially since Chavez concealed the merchandise, as noted in the B.O.L. Report, and Chavez was never searched on May 23.

As to the second prong, Chavez argues that Armistead’s and Pineda’s testimony about the missing video “in no way could substitute for the visual proof that [Chavez] had no [Fry’s] merchandise in his possession when he left the . . . store on May 23, 2015.” Again, Chavez overstates the significance of what the video may have depicted. Armistead’s testimony that he saw Chavez with no Fry’s merchandise on May 23 as he ran from the store was not based on the video surveillance, but was percipient testimony. Even if there was some indication that the May 23 video footage was consistent with Armistead’s percipient observations, there is no requirement under Trombetta that a defendant has access to evidence identical to the lost or destroyed evidence. Trombetta requires only that the substitute evidence be comparable, and percipient witness testimony of events has routinely been considered a comparable substitute. (See, e.g., People v. Walker (1988) 47 Cal.3d 605, 638.)

Failure to preserve the May 23 surveillance video was not a violation of Chavez’s due process rights.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Jenkins, J.