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The People v. Timothy Wayne Sherow et al

May 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TIMOTHY WAYNE SHEROW ET AL., DEFENDANTS AND APPELLANTS.



APPEALS from judgments of the Superior Court of Riverside County, Craig G. Riemer, Judge. (Super. Ct. No. RIF138991)

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed in part, reversed in part.

Timothy Wayne Sherow (Sherow, Sr.,) and Timothy Wayne Sherow, Jr., (Sherow, Jr.,) were charged in the same information.

The charges against Sherow, Sr., were tried to a jury, which found him guilty on nine counts of burglary (Pen. Code, § 459).*fn2 Sherow, Sr., admitted a prior strike and eight prior prison terms. (§§ 667.5, subd. (b), 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The trial court sentenced Sherow, Sr., to 19 years four months in prison.

Sherow, Jr., pled guilty to 27 counts of burglary (§ 459) and 27 counts of receiving stolen property (§ 496, subd. (a)). The trial court sentenced Sherow, Jr., to six years four months in prison.

Sherow, Sr., contends that (1) the trial court erred in admitting surveillance videos showing him stealing DVD's from Walmart and Sam's Club stores; (2) insufficient evidence supports certain of the burglary convictions; and (3) the trial court erred by instructing the jury, with respect to counts 7 through 10, that Sherow, Sr., had the burden to prove a consent defense to burglary by a preponderance of the evidence. We conclude that the third argument has merit. The trial court committed prejudicial instructional error regarding the consent defense to burglary. Accordingly, we reverse the judgment against Sherow, Sr., on counts 7 through 10.

Sherow, Jr., argues that (1) the imposition of a criminal conviction assessment under Government Code section 70373 was invalid on ex post facto grounds; and (2) his presentence conduct credits under section 4019 should be adjusted to reflect the retroactive application of an amendment to section 4019 that became effective after he was sentenced. We reject Sherow, Jr.'s first argument and, as to the second argument, we conclude that the issue of the calculation of his presentence conduct credits should be addressed in the first instance to the trial court.

I

FACTUAL AND PROCEDURAL BACKGROUND

In approximately 2003, Sherow Sr., began engaging in transactions at the AAA Jewelry & Loan pawnshop in Riverside (the pawnshop), which was managed by Robert Stephen Mann. Sherow, Sr., -- always accompanied by a second person -- would bring large quantities of DVD's to the pawnshop to sell. The DVD's were new and in the original shrink-wrap packaging.

In 2007, Detective Charles Payne of the Riverside Police Department became suspicious upon reviewing the pawnshop's records, which showed large transactions involving new DVD's. Detective Payne met with Mann, who showed him a storeroom containing 1,230 new boxed sets of DVD's, most of which Mann purchased from Sherow, Sr., and his associates. Mann had received over $100,000 by reselling the new DVD's brought in by Sherow, Sr., and his associates.

On July 31, 2007, Detective Payne and Police Officer Daniel Cisneros conducted visual surveillance of Sherow, Sr. He was first observed with his sister selling 377 DVD's at the pawnshop for $754. Sherow, Sr., then drove to a Ross store in Riverside, where Officer Cisneros observed him taking clothes off the rack, rolling them up, placing them in his pants and then leaving the store without purchasing the clothes. Officer Cisneros next followed Sherow, Sr., to an AJ Wright store in Riverside where he witnessed Sherow, Sr., steal clothes in the same manner. While Sherow, Sr., was inside a third store, Officer Cisneros placed a tracking device on Sherow, Sr.'s car.

The next day, August 1, 2007, Detective Payne used the tracking device to determine the movement of Sherow, Sr.'s car. Detective Payne determined that the car traveled to a Walmart store in Westminster at 8:46 a.m., a Walmart store in Corona at 9:39 a.m. and a Sam's Club store in Corona at 10:10 a.m. Later that day, Detective Payne observed Sherow, Sr., meet his son Dominique in the parking lot of the pawnshop and hand over a large box of DVD's. Dominique went into the pawnshop with the DVD's and sold 259 DVD's for $518. Dominique emerged a short time later and pulled money out of his pocket, which he divided with Sherow, Sr.

Detective Payne obtained surveillance videos from the Walmart store in Westminster, the Walmart store in Corona and the Sam's Club store in Corona for the time period that the tracking device indicated Sherow, Sr., was in those stores on August 1, 2007. Detective Payne reviewed the videos and observed Sherow, Sr., at each of the stores taking DVD's off the shelves and putting them down his pants.

On August 18, 2007, Detective Payne conducted surveillance of Sherow, Sr., at the pawnshop. He saw Sherow, Sr., enter the pawnshop with a woman he introduced to Mann as his girlfriend. They sold 423 DVD's to Mann for $846.

Police arrested Sherow, Sr., at the pawnshop on September 19, 2007. On that day, Sherow, Sr., entered the pawnshop with 67 boxed sets of DVD's and a homeless man, whom Sherow, Sr., had asked to complete the sales transaction for him using the man's identification.

Sherow, Sr., was charged with several counts of burglary (§ 459). Counts 1 and 2 arose from stealing clothes in the Ross and AJ Wright stores on July 31, 2007. Counts 4, 5 and 6 arose from stealing the DVD's at the Walmart and Sam's Club stores on August 1, 2007.*fn3 Counts 7 through 10 alleged that Sherow, Sr., committed burglary by entering the pawnshop with the intent to commit theft or a felony on July 31, 2007, August 1, 2007, August 18, 2007, and September 10, 2007.

The same information charged Sherow, Jr., with 27 counts of burglary (§ 459) and 27 counts of receiving stolen property (§ 496, subd. (a)).

The jury convicted Sherow, Sr., on counts 1, 2 and 4 through 10. Sherow admitted prior prison terms and a prior strike, and the trial court sentenced Sherow, Sr., to prison for 19 years four months.

Sherow, Jr., pled guilty and the trial court sentenced him to prison for six years four months.

Both Sherow, Jr., and Sherow, Sr., appeal.

II

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion by Admitting Surveillance Videos Into Evidence

We first consider Sherow, Sr.'s argument that the trial court erred in admitting store surveillance videos showing him stealing DVD's.

We apply an abuse of discretion standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla) ["Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence."]; People v. Rowland (1992) 4 Cal.4th 238, 264 [abuse of discretion review applies to ruling on hearsay objection]; People v. Gonzalez (2006) 38 Cal.4th 932, 953 [applying abuse of discretion standard when reviewing trial court's ruling on authentication of videotape].)

The centerpiece of the prosecution's case against Sherow, Sr., on counts 4, 5 and 6 was surveillance videos showing Sherow, Sr., taking DVD's off the shelves at the Walmart stores in Corona and Westminster and the Sam's Club store in Corona and then hiding the DVD's in his pants. The surveillance videos, which were marked, respectively, as exhibits 41, 42 and 44, were played for the jury during the testimony of Detective Payne and were later admitted into evidence by the trial court. The foundation for the admission of the DVD's, however, was provided during the testimony of Laura Guerry, who works for Walmart as an asset protection field investigator.

Defense counsel objected to the admission of the surveillance videos on two grounds. First, the videos contained time and date stamps, which were automatically placed on the videos as they were recording. Defense counsel objected that these time and date stamps constituted hearsay, as they were out-of-court statements offered to prove the truth of the matter asserted. (§ 1200.) The trial court agreed that the time and date stamps were hearsay, but it overruled the hearsay objection on the ground that the business records exception to the hearsay rule applied. (Evid. Code, § 1271.) Second, defense counsel objected to the admission of the surveillance videos on the ground that they had not been properly authenticated. The trial court also overruled that objection, apparently relying on the same evidence that established the applicability of the business records exception to the hearsay rule.*fn4

Although Sherow, Sr.'s argument is not completely clear, he appears to challenge the trial court's evidentiary ruling on the applicability of the business records exception and its ruling on the authentication of the videos. We examine both of those issues in turn.

1. The Court Was Within Its Discretion to Rule that the Business Records Exception to the Hearsay Rule Was Established

The business records exception to the hearsay rule is set forth in Evidence Code section 1271, which provides:

"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

"(a) The writing was made in the regular course of a business;

"(b) The writing was made at or near the time of the act, ...


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