PEOPLE v. FERGUSON

No. E047477.

THE PEOPLE, Plaintiff and Respondent, v. KATHLEEN FERGUSON, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Vincent P. LaPietra and Tami Hennick, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS OPINION

MILLER, J.

A jury convicted defendant Kathleen Ferguson of two counts of forgery (counts 1 & 2—Pen. Code, § 470, subd. (d)). The court sentenced defendant to the aggravated term of three years on count 1, but stayed imposition of sentence on count 2 pursuant to section 654.1

On appeal, defendant raises five issues: (1) the trial court erred by not holding an evidentiary hearing to determine whether juror misconduct had occurred; (2) the trial court erred by not permitting defense counsel to impeach the testifying police detective with evidence of his and his partner's character traits for aggressiveness; (3) the trial court erred by refusing to give defendant's requested pinpoint jury instructions; (4) the trial court erred by denying defendant's motions to appoint new counsel; and (5) the chain of custody regarding exhibit No. 2 was insufficiently established requiring reversal of the judgment. We hold all defendant's contentions unavailing and, therefore, affirm the judgment in full.

FACTUAL AND PROCEDURAL HISTORY

On November 6, 2007, at approximately 5:40 p.m., the victim arrived at a gym in Fontana. She parked her car, locked it, and went inside to exercise. Around 7:20 p.m. she returned to her car. As she pulled out of her parking space, an alarm came on indicating that the passenger-side door was open. She closed the door and reached over to grab her purse from the passenger-side floorboard where she had left it underneath her gym bag. The purse was gone. She reparked the car, went back into the gym, called the police, and informed them that her car had been broken into and her purse stolen.

While waiting for the police to arrive she called her various credit card companies to report her cards stolen. Officials at Chase informed her that there had been activity on her Chase credit card. Two fraudulent purchases were reported to Chase using the victim's credit card at a Target in Apple Valley in the amounts of $129.29 and $126.50 on November 6, 2007, occurring respectively at 7:01 and 7:02 p.m.

Sometime in late November or early December 2007, Katerra Roe, the executive team lead in assets protection for the Target store on Bear Valley Road in Apple Valley, and Erica McKimmons, the senior assets protection team lead at the same store, were contacted by a Fontana Police detective. The detective requested that they look up a credit card transaction that occurred in their store; he gave Roe the credit card number and the owner's name. Roe input the number and name into their computer database; it came up with two transactions that occurred on November 6, 2007, at approximately 7:00 p.m. Among the data retrieved was an electronic journal roll of the transactions, essentially receipts which listed the date, store number, register, transaction number, merchandise purchased, and manner in which the merchandise was paid for; a video obtained from a camera located above the register showing the transactions as they occurred; and a video that showed the customer exit the store with the merchandise reflected on the electronic journal roll.

McKimmons burned a copy of the video feed onto a DVD for the detective. McKimmons testified that although you could not see the customer's face in the transaction video, you could see what items of clothing the customer was wearing; the exit camera showed the same individual exiting the store. At trial, the video was played for the jury while Roe narrated. The jury also requested a computer to view the video during its deliberations. McKimmons also copied and pasted four still photographs from the exit video onto a one-paged Microsoft Word document and printed it out for the detective.2 McKimmons testified that their computer system also showed that only one person had purchased the particular "big box item" seen in the exit video that day; that purchase had occurred only seconds before the person on the video exited the store.

Fontana Police Detective Burton testified that in November of 2007, he was assigned to investigate the instant case. As part of his investigation, he and Detective Ohler went to defendant's home. They informed defendant that they were investigating the theft of property taken from a vehicle in Fontana, one item of which was a credit card later used at the Target in Apple Valley. They informed her they had reason to believe that she was involved. They took defendant to her bedroom where they questioned her and searched the home for items taken from the vehicle.

After approximately 10 minutes, Detective Ohler read defendant her Miranda rights. She appeared to understand and agreed to continue speaking with them. The other detective showed the still photographs obtained from Target to defendant. Defendant initially denied that she was in the photographs, that she knew the other individuals in the photographs, or that she was in any way involved. However, she later admitted that she was one of the individuals in the photographs. Nevertheless, she never admitted to any wrongdoing.

DISCUSSION

A. JUROR MISCONDUCT

Defendant contends the court erred in declining to hold an evidentiary hearing to determine whether juror misconduct was committed when defense counsel called to the court's attention an alleged conversation occurring between two jurors outside the presence of the remainder of the jury. To the extent that we might find determinative the fact that defense counsel failed to adequately raise the issue, defendant maintains counsel was constitutionally ineffective. We disagree with both contentions.

Defendant's argument centers on the following colloquy:

"[Defense Counsel]: I mentioned to the Court yesterday about how I had overheard a couple of jurors talking. It . . . seemed to me they were talking about the case outside the other jurors. I don't know if the Court addressed that or not. "The Court: Well, I think we talked about it and decided that we were just going to let it go. "[Defense Counsel]: Was that the Court's decision? "The Court: Well, I think that's what we said on the record. "[Prosecutor]: I wasn't here. "The Court: Did we discuss that on the record? "[Defense Counsel]: No. "The Court: Well, you didn't bring it up. Now the jury has a verdict. I'm going to go ahead and— "[Defense Counsel]: Okay. I'm just putting on the record that I mentioned it. "The Court: Okay. And I think I was thinking that you were going to, that we were going to assemble and talk about it, and we never did. "[Defense Counsel]: And we never had a chance to reassemble. "The Court: Well, we had a chance, but nobody asked to do it. At any rate, I will go ahead and take a verdict, and if you feel that should be addressed afterwards, we can. "[Defense Counsel]: Okay."

Defense counsel apparently never subsequently raised the issue.

Defendant bears the burden of establishing juror misconduct. (People v. Stanley (1995) 10 Cal.4th 764, 836.) When there are issues of fact concerning juror misconduct, the trial court may, in its discretion, conduct an evidentiary hearing to resolve disputed facts. (People v. Hedgecock (1990) 51 Cal.3d 395, 415, 419; People v. Williams (1997) 16 Cal.4th 635, 686.) The court may call jurors to testify at the hearing. (Hedgecock, at p. 418.) However, it is defendant's burden to show misconduct before a hearing will be required. (Stanley, at p. 836.) A hearing must be held "whenever the court is put on notice that good cause to discharge a juror may exist." (People v. Burgener (1986) 41 Cal.3d 505, 518-519, overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743.) Good cause may be found when "improper or external influences . . . [are] brought to bear on a juror . . . ." (Burgener, at p. 518; see also People v. Kaurish (1990) 52 Cal.3d 648, 694; see also People v. Majors (1998) 18 Cal.4th 385, 425 ["Absent concrete evidence as to the content of the jurors' discussions or the nature of their opinions, the record fails to establish misconduct."].)

The trial court acted within its discretion by electing not to hold an evidentiary hearing regarding the matter. The record reflects that counsel never requested an evidentiary hearing or any other further inquiry into the matter. The court's response indicates that counsel had ample opportunity to do so. Indeed, during the above quoted dialogue, counsel still had an opportunity to request further inquiry if warranted. This he failed to do. Moreover, counsel never unequivocally indicated that he suspected any actual juror misconduct; rather, his statement that "it seemed to me they were talking about the case outside the other jurors" was so tentative and tenuous as to amount to little more than speculation.

To prevail on his claim of ineffective assistance of counsel, defendant must demonstrate both deficient performance as well as prejudice. (People v. Osband (1996) 13 Cal.4th 622, 670.) Claims of ineffective assistance of counsel are typically more appropriately addressed in petitions for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) However, where it is clear from the record that there is no satisfactory explanation for counsel's allegedly deficient action, the claim may properly be addressed on appeal. (Id. at p. 266.) Where all the facts underlying defendant's claim of ineffective assistance of counsel are undisputed, resolution by the appellate court without resort to an evidentiary hearing is proper. (People v. Frierson (1979) 25 Cal.3d 142, 160.)

Here, the record is insufficiently clear to indicate any deficient performance on the part of defense counsel in declining to request further inquiry into the matter. As noted above, counsel's concern regarding any impropriety was ambiguous at best; he never expressly indicated any suspicion of actual juror misconduct. (See People v. Majors, supra, 18 Cal.4th at p. 425 ["`[W]hen jurors are observed to be talking among themselves it will not be presumed that the act involves impropriety . . . .'"].)

Furthermore, defense counsel had demonstrated proficiency in dealing with potential juror misconduct on two prior occasions in this case alone. At one point during a break in the trial the bailiff indicated that one of the jurors had asked him if the juror could ask him questions regarding the evidence in the case. The bailiff replied that the juror could not. The juror then asked the bailiff if he could ask him general questions regarding evidence not directly related to the instant case. The bailiff responded in the negative. Defense counsel indicated that he was concerned and requested that the juror be excused. The juror was excused.

On another occasion a concern was raised when some of the witnesses were heard talking in front of members of the jury. There was also concern regarding whether the jurors themselves were inappropriately discussing the case amongst themselves. After the court conducted a brief inquiry with the persons who overheard the discussions, defense counsel stated that he believed nothing of consequence was discussed; thus, defense counsel concluded that no juror misconduct had taken place and no remedial action need be taken.

Therefore, the circumstances clearly reflect that had defense counsel had any legitimate concern regarding juror misconduct in this instance, he knew how to and would have sought further action.

Finally, we note the jury was repeatedly admonished not to discuss the case amongst themselves until deliberations and only then in the presence of all the jurors. Barring any evidence to the contrary, we presume the jury followed the court's instructions. (See People v. Harris (1994) 9 Cal.4th 407, 426; People v. Frank (1990) 51 Cal.3d 718, 728 [general rule is that on appeal we must assume the jury followed the court's instructions and admonitions].)

B. IMPEACHMENT EVIDENCE

Defendant contends the court erred by not admitting evidence of both the interrogating detectives' propensity for aggressive or violent behavior. She contends the evidence was relevant to establish that her admission that she was the individual in the photographs was induced through coercive measures. We hold the court acted within its discretion in determining that the proffered evidence was more prejudicial than probative.

At an Evidence Code section 402 hearing, Detective Burton testified that he and his partner were permitted inside the home by defendant's children and a maintenance person on the property; defendant was not at home when they arrived. They began a cursory search of the home before defendant returned, 10 minutes later. When she arrived, they asked that she accompany them to her bedroom; she did so. They continued to search for items in the bedroom; they did not search the entire home. The detective testified that they were in the bedroom for a total of 30 minutes. After 10 minutes in the bedroom, the detective's partner read defendant her Miranda rights. Sometime thereafter, they handcuffed defendant. They interviewed her regarding her involvement in the fraudulent credit card activity at the Apple Valley Target. They asked her about the stolen purse and showed her the still photographs from the Target surveillance camera. At the end of the interview, they escorted her to the dining room and uncuffed her.

The detective denied ever using foul language or calling defendant a liar during the interrogation. He denied telling any of the children to get out of the bedroom or blocking the window with a pillow so that no one could see in. He did not recall either of them informing the children that their mother was going to jail. Although there were times when their voices got loud in order to talk over defendant, he denied that they yelled at her. The detective stated that defendant did not appear to be under any stress or duress.

On cross-examination, defense counsel asked the detective if he was familiar with a particular individual. The prosecution objected on the grounds of relevance. Defense counsel replied, "I believe [Detective Burton] is named as a defendant in a civil lawsuit where he has been named along with [Detective Ohler], as an excessive force lawsuit, and this fellow . . . ended up dying." Defense counsel indicated that he intended to impeach the detective with the information regarding the civil case. The court sustained the objection. Defense counsel requested that he be allowed to provide an offer of proof; the court acquiesced. Defense counsel then stated, "It was my intention to impeach the officer with information I have received about this kind of behavior in the past where these officers have gone into people's homes and used . . . excessive force and up to and including, you know, physical beatings. And I'm going off of a civil case that is—I believe it's actually settled, there was a settlement, but it was my intention to impeach the officer with that information." The court replied that "you can't impeach him with a settlement in a civil lawsuit. So, I'll sustain the objection." In addition, the court found, "[w]e would have to try that case. We would have to call the witnesses in that case to establish if it was in any way similar to this, and this trial is going to take long enough without trying that case also."

Later, upon defendant's motion to exclude defendant's admission, the court denied the request finding that "[t]here's a sketchy innuendo of possible overbearing conduct but it's not very clear, and what effect that may have had on [defendant] is not clear. [¶] So, I'll deny the—I'll find that there's no showing that the statements were a result of coercion, and I'll note that she was given Miranda rights before she made the admissions." The People subsequently requested that the defense be barred from making reference to any cases regarding Detective Burton. The court granted the request stating "Your witnesses would have no way of knowing that. That's not appropriate impeachment, so we won't reference that."

At trial, Detective Burton testified that after defendant arrived there were a total of three children at the home. They arranged to have the children taken to a neighbor's house while they conducted defendant's interrogation. During the interview, they handcuffed defendant and sat her on the ground; however, she never complained about being in pain. They never yelled at her, called her names, or cursed. Nevertheless, at one point, defendant was crying. Although the detectives became upset with defendant because she continued to deny being the individual in the photographs, they never got angry with her. None of the children ever tried to enter the bedroom during the interview; he never told any of the children to leave the bedroom. They never covered the window to the bedroom so that no one could see in. Although they searched the bedroom, they did not make a mess; when they first entered there was already "clothing, a lot of bags of receipts and paperwork and things like that stacked up all along the parameters of the bedroom. One side of the bed was almost completely filled with clothing [and] there was stuff all over the room."

Defendant called her three children, a neighbor, and a neighbor's child's friend to the stand. One of defendant's daughters testified that when her mother arrived, the detectives asked her mother if she wanted them to put the cuffs on her right now in front of her children. Defendant's daughter remained in the house and heard a man's voice yelling and calling her mother a liar. Her brother tried to enter the room, but was prohibited from doing so.

Defendant's son testified that the detective took defendant into the room and closed the door. Defendant's son stood at the door listening. He opened the door and peeked in, but the detectives shut the door on him.

Defendant's other daughter testified that she looked in the bedroom window and saw her mother handcuffed on her knees on the floor. One of the detectives blocked her view with a pillow. A neighbor's child's friend testified that she went to defendant's bedroom door and heard two men cussing and defendant crying. One of the detectives said "Stop F-ing lying to us. You know that you're in the picture. Why do you keep on lying? Why are you doing this? Why are you lying?" "They were using the `F' word a lot," "they [used] the `B' word on her one time." When defendant exited the room she looked scared, appeared as if she had been crying, and had red wrists, which looked "bad." Defendant's neighbor testified that she heard a man inside the bedroom calling defendant a liar; defendant was crying. After the detectives left, the room looked "torn apart."

At the close of evidence, the court denied defendant's motion to exclude defendant's inculpatory statements for the jury's consideration. During defense counsel's closing argument, he argued at length that defendant's admission that she was one of the individuals in the photograph was coerced by the detectives' behavior.

Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Even if relevant, the trial court has discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Because the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, its exercise of that discretion must not be disturbed on appeal 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.)

Here, the court acted within its discretion in determining that the evidence proffered by defendant was more prejudicial than probative. As the People note, Evidence Code sections 787 and 1101 specifically prohibit the admission of specific instances of a witnesses' prior conduct or character to prove current conduct in conformity therewith. Regardless, defendant's offer of proof had little to no probative value in proving that defendant's admission was coerced by the detectives' behavior. Her offer of proof reflected only that the detectives had been sued and that they had settled a case that involved the use of excessive force that resulted in an individual's death. Nothing in that offer of proof indicated that either detective sought to elicit a confession or admission from the alleged decedent, actually did elicit such an admission, or had admitted any fault in the matter. Thus, the offer of proof established, at best, an extremely tenuous link with the contention in this case that the detectives had coerced defendant's admission. Indeed, even crediting all of defendant's witnesses' testimonies at trial, the only suggestion of any, let alone excessive, force was an attenuated implication that the detectives had placed the handcuffs too tightly on defendant. The core of defendant's theory of coercion centered around their overbearing manner, not violence.

Moreover, the weak probative value of the evidence was strongly outweighed by the danger that it would consume an undue amount of time, confuse the issues, and mislead the jury. The primary issue at trial was whether defendant was the individual in the photographs and in the video. Although defendant's admission bore on this issue, both the parties and the court repeatedly recognized that resolution of the issue would be made by the jury's determination of whether defendant was, in fact, the individual shown in the video and photographs. The issue at trial was not whether the detectives were bad people, but whether defendant was the depicted individual. Thus, defendant's admission was not the central issue in the context of the trial.

Likewise, the court correctly found that proving the detectives had a propensity to act aggressively and/or violently would involve a mini trial which would simply consume an unwarranted amount of time.

Finally, defendant was permitted sufficient latitude to develop her theory that the admission was coerced. She presented the testimonies of five witnesses to support her contention and argued at length during her closing that the admission was coerced. The jury simply found that defendant was the individual depicted in the photographs and video or disbelieved defendant's contention that her admission was coerced.

Defendant characterizes her argument in terms of Pitchess3 proceedings, i.e., she notes that evidence that is typically derived pursuant to a Pitchess motion is automatically admissible to impeach a testifying officer regardless of how obtained. She cites People v. Castain (1981) 122 Cal.App.3d 138 (Castain) to support her contention that evidence of the misbehavior of a testifying officer is admissible even if not obtained pursuant to a Pitchess motion.4 Contrariwise, the People contend that evidence of police misbehavior is admissible only if obtained pursuant to Pitchess proceedings. We disagree with both parties. Pitchess proceedings are concerned with the discovery of evidence, not its admissibility.

Defendant's evidence regarding the detectives' alleged penchant for excessive force had already been discovered; hence, her concern lay with its admissibility. As such, the trial court correctly determined its admissibility pursuant to an Evidence Code section 352 relevance analysis. Similarly, defendant's argument that the evidence was admissible pursuant to Evidence Code section 1103 fails. As the People note, Evidence Code section 1103 permits admission of "evidence of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted . . ." or the defendant himself or herself. (Id. at subds. (a) & (b), italics added.) The testifying detective was neither the defendant nor the victim of the crime for which defendant was being prosecuted; hence, any impeachment evidence against him was not admissible pursuant to that section.

C. PINPOINT JURY INSTRUCTIONS

Defendant contends the court deprived her of her federal constitutional right to a fair trial by refusing to instruct the jury with her requested pinpoint instructions. We disagree.

At the close of evidence, but prior to closing statements, defendant requested that the court instruct the jury with one or both of two proposed pinpoint instructions.5 Proposed instruction number one read: "You have heard evidence that the defendant made oral or written statements before trial. You must decide whether or not the defendant made any such/of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such a statements [sic]. You may consider any evidence of coercion in deciding how much importance to give such statements. [¶] [You must consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded.]" Proposed instruction number 2 reads: "You may consider any evidence or coercion when considering what importance to place on any out of court statement made by the defendant." The trial court denied the request: "I think the the pinpoint instructions that you're requesting, Proposed No. 1 and No. 2, suggest to the jury that there was coercion, and the evidence does not—the law on the evidence doesn't require the giving of that instruction. You are free to argue that the statement's not reliable for whatever reasons you deem appropriate, and I'll not give [Proposed] Instruction 1 or 2."

A defendant is entitled to jury instructions that "`pinpoint'" his or her theory of the case only upon his or her request. (People v. Saille (1991) 54 Cal.3d 1103, 1119; People v. Wright (1988) 45 Cal.3d 1126, 1135-1136; People v. Wharton (1991) 53 Cal.3d 522, 570.) However, a court need not give a requested pinpoint instruction if it merely duplicates other instructions already being given. (People v. Coffman (2004) 34 Cal.4th 1, 99.)

The correctness of jury instructions is reviewed on an independent basis. (People v. Griffin (2004) 33 Cal.4th 536, 593; People v. Posey (2004) 32 Cal.4th 193, 218.) When a trial court errs in refusing to give a pinpoint instruction, the error is reviewed under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Earp (1999) 20 Cal.4th 826, 886-887.)

We find that the court committed no error of law in refusing to give either or both of the instructions as requested. The court instructed the jury with CALCRIM No. 358. CALCRIM No. 358 informed the jury that it must "consider with caution evidence of a defendant's oral statement unless it was written or otherwise recorded." Likewise, it conveyed that it was up to the jury to decide how much importance to give such a statement. The court also instructed the jury with CALCRIM No. 302, which provided that the jury must resolve any conflict in the evidence. Thus, defendant's pinpoint instructions were essentially duplicative, because the jury was informed that it was required to determine the circumstances under which defendant's statement was made, the veracity of the admission, and ultimately, how much weight to lend it. That determination necessarily included a conclusion as to whether the admission was coerced.

Even if the court erred in refusing to instruct the jury as requested, defendant suffered no prejudice. Indeed, defendant had ample opportunity to exhort the jury to carefully review the circumstances of defendant's admission; defendant's entire case was built upon the notion that defendant's statement had been coerced, and that she was not the individual depicted in the video or photographs. The jury was instructed that it must find the prosecution had proven its case beyond a reasonable doubt. "Under these circumstances, it is not reasonably probable that had the jury been given defendant's proposed pinpoint instruction, it would have come to any different conclusion in this case. [Citation.]" (People v. Earp, supra, 20 Cal.4th at p. 887.)

D. MARSDEN REQUESTS

Defendant contends the court abused its discretion by denying her requests for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant maintains that there was a breakdown in communication between defendant and defense counsel requiring the appointment of new counsel. We disagree.

"`The rule is well settled. "`When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would "substantially impair" the defendant's right to effective assistance of counsel.' [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 487-488.)

Here, there is simply nothing in the record that reflects there was a breakdown in communication between defense counsel and defendant such that her constitutional right to effective representation was threatened. The court held two separate Marsden hearings at defendant's request: one on October 10, 2009, and the other on November 3, 2008. Prior to both hearings, defendant filed written motions in propria persona.6 The first written motion dealt exclusively with defense counsel's alleged failure to take certain actions deemed requisite by defendant, i.e., defense counsel's purported failure to adequately perform his duties. At the hearing, defendant began by stating, "You know, I like [defense counsel] very much, and this has been very difficult for me. It's like I'm going nowhere. We don't have good communication. Any time we seem to sit down and discuss my case we're talking about other things, nothing about—I mean, nothing has been filed on my behalf by [defense counsel] at all from the beginning to the end. It's been very difficult for me." She continued, "And I do like him very much and I'm sure he's a good attorney. It's just there's some kind of problem between the two of us. I don't know if I've insulted him, my personality is a little bit too much for him. I don't know what it is, but I've never had to file papers in a court. I've never felt so insecure regarding an attorney as I have been with [defense counsel]. I'm not sure if he's the district attorney or my attorney, and it's been difficult for me."

Defense counsel responded "I—from that it doesn't sound like we have a conflict so I will try to be—I will try to be more reassuring towards her, but ultimately I'm paid to represent her, not to make her feel good." Defense counsel then outlined all the steps he had taken to investigate the matter and prepare for trial. Ultimately, defense counsel deemed any miscommunication a matter of differing concepts of trial tactics, the resolution of which properly lay in his domain. The court asked defense counsel if he could continue to work with defendant; he replied that he could. The court asked defendant if she believed that she could continue to work with defense counsel; she replied that she could. Defendant twice reiterated that she liked defense counsel. The court finally concluded "Why don't we do this: After we're done here, why don't you talk with him for a little while and get your—you know, communicate, because it sounds like to me that that's the problem, is that you're not communicating, okay? Is that okay." Defendant acquiesced. The court denied defendant's Marsden motion.

At the second hearing, defendant again delineated the obligatory duties she believed defense counsel failed to perform. Nevertheless, she admitted that she had spoken with defense counsel "quite often." She stated that she had "nothing personal against" him. Defense counsel responded by again noting all the efforts he had made on her behalf. He simply concluded that they disagreed about the proper method of putting on her defense. The court noted that it "[s]ounds like what you're telling me is you don't have a problem with [defense counsel] as an attorney, you have a problem with the tactical decisions and the way he views the case and is preparing the case; is that correct?" Defendant replied that she believed that defense counsel had not "done one thing for me." The court concluded that "the issues that you have raised are questions of trial tactics" and that since she was still "getting along with him, I don't see a basis for relieving him as your attorney." Defendant rejoined, "I haven't been getting along with him. We've had arguments in the courtroom in open court several times again yesterday. Every conversation we do have turns into an argument."

It is clear from the record that defendant's bases for attempting to relieve defense counsel were founded on his failure to see the case the way she saw it. However, a disagreement over trial tactics is insufficient to compel discharge of appointed counsel. (People v. Cole (2004) 33 Cal.4th 1158, 1192.) "`[D]efendant does not have the right to present a defense of [her] own choosing, but merely the right to an adequate and competent defense.' [Citation.]" (Ibid.) Here, defense counsel properly and adequately responded to each of defendant's concerns; he established that he had, indeed, appropriately investigated and prepared the case for trial. "A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney." (People v. Smith (2003) 30 Cal.4th 581, 606.) "Defendant did not show that defense counsel did anything to cause any breakdown in their relationship. `[A] defendant may not force the substitution of counsel by [her] own conduct that manufactures a conflict.' [Citation.]" (Ibid.) Defendant failed to demonstrate that there was an irreconcilable conflict, which would result in ineffective representation. The court acted within its discretion in denying defendant's Marsden motions.

E. CHAIN OF CUSTODY/FOUNDATION

Defendant contends that the court erred in permitting admission of exhibit No. 2, the four photographic stills taken from the exit video, because the People failed to establish that the chain of custody was sufficiently established to reliably conclude the evidence was not altered. We hold defendant's contention unavailing.

After the Evidence Code Section 402 hearing, defendant objected to the admission of exhibit No. 2 on the ground that it was altered; the time and date stamp had been removed. The court found exhibit No. 2 admissible: "[T]here may be some difference between what you call the original, which is the image that's produced from the hard drive, and what's been printed out. The moving party, or the proffering party has sufficiently accounted for the alteration or appearance, so I don't think there's a problem. But, under [Evidence Code sections] 1552 and 1553, there's a sufficient foundation laid."

At trial, defendant objected to the admission of exhibit No. 1, the register camera's video, on the same grounds. However, she never objected to the admissibility of exhibit No. 2. To the extent defendant could be found to have forfeited the issue by failing to object to the admission of exhibit No. 2 during trial, we find that she adequately preserved the issue by objecting to its admission prior to trial.

In a chain of custody claim, "`[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.' [Citations.]" (People v. Diaz, supra, 3 Cal.4th at p. 559; see also Méndez, Cal. Evidence (1993) § 13.05, p. 237 ["While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering."].)

"A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent." (Evid. Code, § 1553.) "The trial court's exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion. [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 134.)

Here, ample evidence supported the court's determination that exhibit No. 2 was what it purported to be; thus, the court acted within its discretion by admitting it. Both Roe and McKimmons testified at the Evidence Code section 402 hearing that they were trained on, familiar with, and frequently used the surveillance equipment at Target. As to exhibit No. 2, McKimmons testified that when they called up the video for the transaction at issue, they also called up the video feed from the exit camera: "So when [defendant] leaves the register, [defendant] approaches the exit doors, and that's when we saved these pictures, from when [defendant is] exiting the store." "So we opened up the camera from that transaction, the exit doors, and you can see all the merchandise that was purchased inside the transaction and the people that were standing at the exit at the store." McKimmons testified that the items shown purchased in the video feed from the camera at the register and the electronic journal role matched the items shown in exhibit No. 2: "You can see the—there's a baby item inside of a box, and then I believe it's a car seat, and then diapers. You can see the same boxes that were rang up inside of our system. You can look at those items to see when they're purchased and to see if any other people had purchased those items that day. And on that day, nobody else purchased those items, so only the person who rang up at that time could have walked out with them."

McKimmons testified that the original video feed of the exit camera had the time and date stamp on it. It was taken on November 6, 2007, at approximately 7:00 p.m. The detective "came in and viewed [the original] because the one that was put into evidence didn't have a time stamp. So they came in and looked at ours to make sure it was the correct video." The still photographs were obtained from the video by copying and pasting. The time and date stamp is not on exhibit No. 2 because that information does not transfer when they make a copy. Nevertheless, McKimmons testified that the series of photographs depicted in exhibit No. 2 is "an accurate and fair description of persons exiting the Apple Valley Target on Bear Valley Road on November 6, 2007, at approximately 7:00 p.m."

Likewise, as discussed above, both McKimmons and Roe testified at trial regarding the exhibits. Both Roe and McKimmons explained that the reason the time and date stamp did not carry over onto the copy of the video was because the store's software system produces it. When they copy over that information to make it accessible to all computers they lose the time and date stamp. At trial, McKimmons testified even further in depth regarding how she generated the photographic stills: she copied and pasted them into Microsoft Word and printed them out. McKimmons again testified that the individuals seen on the register camera's video purchasing the items with the victim's credit card were the same people seen leaving the store in the video from the exit camera. Only one person purchased that particular big box item seen in exhibit No. 2 on that day. She again testified that the series of photographs were a fair and accurate depiction of the people leaving the Apple Valley Target on November 6, 2007, at approximately 7:00 p.m.

The fact that the time and date stamp were missing from the photographs and the video does not support defendant's implicit contention that the exhibits were tampered with, e.g., by portraying defendant at the store at a different time. Indeed, as found by the trial court, the lack of a time and date stamp on the photographs was more than adequately explained by the loss prevention officers. As the court further found regarding the video, the missing time and date stamp would go to the weight of the evidence, not its admissibility. Roe, McKimmons, and the detective all watched the video feeds from both cameras in its original form prior to making the copies. McKimmons testified twice as to how she produced the photographic stills. She twice testified that they were what they purported be. The trial court could conclude with reasonable certainty that no alteration of evidence had occurred.

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment reflecting that imposition of sentence on count 2 was stayed pursuant to Penal Code section 654 and to forward it to the appropriate prison authorities. As so modified, the judgment is affirmed.

We concur.

HOLLENHORST, Acting P. J.

KING, J.

FootNotes


1. The abstract of judgment incorrectly reflects that the court imposed one-third the midterm consecutively on count 2 without indicating the sentence was stayed. We shall, therefore, order the trial court to correct the abstract of judgment.
2. The four still photographs show three individuals who appear to be exiting the store together.
3. Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess).
4. Contrary to defendant's contention, Castain does not support her argument. In Castain, prior to trial, defendant sought "discovery of information about past complaints of excessive force by [the testifying officer]. In an in camera proceeding from which the prosecutor, the defendant, and defense counsel were excluded, the trial court examined the police department files on four such complaints. The court ordered disclosure of information about two of the complaints . . . ." (Castain, supra, 122 Cal.App.3d at p. 144.) Thus, the impeachment evidence used in Castain was obtained pursuant to Pitchess proceedings. Here, defendant never sought in camera review of the detective's personnel records. Rather, she apparently came by the information regarding the civil suit in some other manner.
5. The record is unclear as to whether defendant requested that both instructions be given, or only one; and, if the latter, which one she preferred.
6. The second written motion is not a part of the record on appeal.

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