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People v. Alexander

California Court of Appeals, First District, Fifth Division

June 25, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
BRYAN ALEXANDER, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
v.
RAY A. FARR, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          Superior Court of the City and County of San Francisco, Nos. SCN220303-01 & SCN220303-02, Hon. Jeffrey S. Ross, Judge.

          Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Alexander.

          Gail E. Chesney, under appointment by the Court of Appeal, for Defendant and Appellant Ray A. Farr.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit and Lisa Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.

          SIMONS, J.

         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.[1] Alexander and Farr subsequently pled guilty to several of the offenses. In the published portion of this opinion we reject appellants' contention the trial court erred in denying their motion to suppress evidence discovered pursuant to their warrantless arrest. We conclude, among other things, the trial court properly admitted the officer's testimony that the videos helped provide probable cause for appellants' arrest. We reject appellants' arguments this testimony constituted hearsay, relied on unauthenticated writings and violated the secondary evidence rule. Further, we determine the information possessed by the officer was sufficiently reliable to justify the arrest. In the unpublished part of this opinion, we reject appellants' claim the trial court erred in calculating conduct credits, and we remand to the trial court to exercise its discretion regarding whether to strike a five-year sentence enhancement imposed on Alexander based on a prior serious felony conviction.

         Background

         In April 2017, appellants were charged in a first amended information with 14 counts of second-degree robbery (Pen. Code, § 211);[2] nine counts of second-degree burglary (§ 459); and one count of receiving stolen property (§ 496, subd. (a)). Farr was charged with two additional counts of second degree robbery; one additional count of second degree burglary; one count of making a criminal threat (§ 422); and one count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The information also alleged that Alexander had suffered three prior prison terms (§ 667.5, subd. (b)) and one prior violent or serious felony conviction (§ 667), and the information alleged that Farr had suffered six prior prison terms (§ 667.5, subd. (b)).

         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.[3]

         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.[4] Alexander was given credit for time served of 2, 002 days, consisting of 1, 741 days in jail and 261 days of conduct credit. The trial court sentenced Farr to 10 years in prison, consisting of five years on count five, one year on count 14, and one year for each of the four prison priors. Like Alexander, Farr was given credit for time served of 2, 002 days, consisting of 1, 741 days in jail and 261 days of conduct credit.

         Both Alexander and Farr appealed.

         Discussion

         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) 48 Cal.4th 691, 719.)

         “ ‘[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) 38 Cal.4th 811, 817.) “ ‘Probable cause exists when the facts known to the arresting officer would persuade someone of “reasonable caution” that the person to be arrested has committed a crime.' ” (Id. at p. 818.) Where an officer makes a warrantless arrest based on a belief they have probable cause to do so, “the officer must testify to the facts or information known to him on which his belief is based” because “the court and not the officer must make the determination whether the officer's belief is based upon reasonable cause.” (People v. Boyles (1955) 45 Cal.2d 652, 656.) The prosecution bears the burden of proving the reasonableness of a warrantless arrest. (People v. Williams (1999) 20 Cal.4th 119');">20 Cal.4th 119, 130.)

         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 police reports regarding all of the incidents and surveillance videos of eight of the incidents. He viewed and compared the videos multiple times. Maguire testified about his investigation of seven of the robberies.

         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 stills from the video, admitted as exhibits seven through ten. Exhibits seven and eight showed the shorter suspect wearing a dark-colored beanie cap and black shoes with white soles. Exhibits nine and ten showed the taller suspect, who had “scruffy” facial hair and was wearing a hooded sweatshirt.

         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 that looked like the getaway car in one of the robbery videos. Maguire searched the vehicle and found a black replica handgun and a dark-colored beanie cap.

         Sergeant Maguire identified five photographs of appellants taken on September 16, 2012, admitted into ...


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