Our office has represented many people accused of shoplifting, trespassing, public urination, public intoxication outside a store, theft crimes in parking lots and violent crimes in public places. Often a security camera film captures the events. Often the film provides our clients a defense or impeaches the claims written in a police report.
In 50 Words or Less: Store security video evidence, without any in-person identification, can be used to convict you. When showing the video, the prosecution needs to lay a proper foundation for what is shown by establishing that the video accurately represents a certain location at a certain time.
In the following case, such security camera films critically hurt defendant.
Over a twenty-one-month period in 2008 and 2009, Defendant Randy Alan Larkins allegedly broke into over a dozen gym lockers at a Southern California Bally’s, 24 Hour Fitness, and L.A. Fitness. When arrested, he was found in possession of twelve membership cards that were not issued to him for Bally’s and 24 Hour Fitness, mail that was not his own, driver’s licenses that were not his and dozens of credit cards that were not his own. He probably also had a few sweaty socks and t-shirts.
Larkins was charged with and subsequently convicted of five counts of second degree commercial burglary (California Penal Code § 459), four counts of receiving stolen property (California Penal Code § 496(a)) and one count of identity theft (California Penal Code § 530.5(a)).
Larkins challenged the testimony of one witness whose testimony the prosecution offered under California Evidence Code § 1101(b) to show identity, intent and knowledge. The witness was a 24 Hour Fitness loss prevention manager whose testimony identified Larkins at a Montclair 24 Hour Fitness. The witness testified that he had never seen Larkins in person, but had seen twenty to thirty security videos with defendant in them and that based on such videos, he could also place Larkins in the Montclair gym on certain dates and times.
Larkins challenged the adequacy of the foundation for the loss prevention manager’s testimony and thus his conviction in the trial court. Since he had never seen Larkins face to face or in person, Larkins argued that the loss prevention manager really could not credibly identify Larkins, let alone on a video.
Larkins did not argue that his appearance had changed over time, as might be possible when almost two years had passed. Larkins also did not argue that the twenty or thirty security videos were filmed from afar or of such low quality that identification of Larkins was difficult. He also did not challenge the dates when the alleged videos were taken.
Larkins only seemed to insist that California law should impose a requirement that every witness seeking to identify a witness must have seen the subject in person prior to identifying him or her on video. The implication was that without a person-to-person view, the identification of him was unreliable because it was speculative.
The Fourth Appellate District Court of Appeal, in an opinion issued on Thursday, October 6, 2011 (People v. Randy Allan Larkins
(2011 DJDAR 105024)), seemed annoyed at Larkins’ appeal. It sarcastically stated that:
We do not doubt that a star-struck young lady who has seen
pictures of Justin Bieber in magazines could easily identify
him were she to see him on a video, on television or in person.
The court of appeal further noted that the loss prevention manager could observe Larkins’ distinguishing characteristics, such as his posture, gait and body movements. In each video, Larkins was seen entering a certain club with a backpack over his shoulder, proceeding directly to the men’s locker room, emerging two to three minutes later and leaving the club, presumably with a more full backpack containing items stolen from inside the gym lockers.
Putting a nail in the coffin, the appellate court ended its opinion by commenting that its opinion was but a small fraction of the enormous evidence against Larkins. It stated that even if the trial court had abused its discretion in admitting the loss prevention manager’s opinion, the appellate court would not reverse.
For more information about shoplifting and vandalism, click on the following articles:
- What Is Shoplifting and Its Defenses?
- What Is a Motion for Civil Compromise?
- Immigration Consequences of a Conviction for Shoplifting
For case summaries of selected theft cases our firm has handled, click here
Greg Hill & Associates