Filed 6/23/21 P. v. Rowe CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B303972
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA088186)
v.
KENNETH LEE ROWE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Thomas Rubinson, Judge. Affirmed.
Rudolph J. Alejo, under appointment by Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
After being robbed at gunpoint, Samuel A. identified two
men in a photographic array as his assailants. One of those men,
appellant Kenneth Rowe, was convicted of the robbery. Rowe
now appeals, and argues the trial court prejudicially erred in
excluding evidence of the second suspect’s cell phone records.
According to Rowe, these records would have shown that the
second suspect was not in the vicinity when the crime took place,
and therefore, the victim had incorrectly identified that suspect
as one of the robbers. Rowe argues that this incorrect
identification would have, in turn, cast doubt on the victim’s
identification of Rowe. We conclude the trial court acted within
its discretion in excluding this evidence. We also reject Rowe’s
claims of ineffective assistance of counsel and instructional error.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Robbery
Just after midnight on April 10, 2018, Samuel A. was
walking across a residential street when two men approached
him and drew handguns. One of those men, whom the victim
would later identify as Rowe, placed his gun about an inch from
the victim’s forehead and demanded his belongings. The second
man stood a few feet behind Rowe. The victim handed over his
laptop, wallet, phone, watch and bag. Rowe and his accomplice
then walked backward, still aiming their guns at the victim,
before jumping into an idling silver car. As the car drove away,
the victim saw the vehicle license plate. He then reported the
crime and the license plate to a 911 operator.
2. The Investigation and Resulting Charges
The police matched the license plate to a silver Nissan
registered to Rowe’s grandmother. The police had previously
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cited Rowe while he was driving that car. Detectives showed the
victim several six-pack photographic arrays, one of which
included Rowe’s photo. The victim identified Rowe and another
man as the robbers. Rowe was charged with one count of robbery
(Pen. Code, § 211)1 with personal use of a firearm (§ 12022.53,
subd. (b)). He pled not guilty.
3. Trial
a. The Prosecution’s Case
The victim testified about the details of the robbery: Rowe
stood right in front of him while holding a gun to the victim’s
head. It took about 30 seconds for the robbers to strip the victim
of his belongings. The victim was “pretty confident” he had
correctly identified the robbers in the six-packs the police showed
to him. When identifying Rowe’s accomplice, the victim had
written on the six-pack: “This image looks closest to the shorter
suspect.” However, when cross-examined by defense counsel, he
testified that Rowe was actually the shorter of the two.
An LAPD Officer testified that within hours of the robbery
he went to the residence associated with the license plate the
victim reported. Rowe lived at that house, and the silver Nissan
was parked out front. The officer witnessed Rowe exit the house
and get into the driver’s seat before arresting him. LAPD
Detective Peter Barba then executed a search warrant for the
Rowe residence and found a handgun behind a sofa.2
1 All further undesignated statutory references are to the
Penal Code.
2 Rowe’s prints were not found on the handgun.
3
b. Defense Case
Rowe’s girlfriend testified that she was with him at the
beach during the time of the robbery. She claimed she had
recorded several videos of them together. The videos were played
for the jury and depicted timestamps between 12:00 a.m. and
2:00 a.m. on April 10, 2018, which covered the time of the
robbery. The defense also called an expert witness who testified
generally about eyewitness memory identification.
Rowe proffered the phone records of the second suspect
identified by the victim—Jahlil Burgess. Those records tended to
show that Burgess’s phone was nowhere near the robbery when it
took place. The court sustained the prosecution’s objection on
lack of foundation.
c. The Prosecution’s Rebuttal
In rebuttal, Detective Barba testified that when he
interviewed Rowe’s girlfriend the day of the robbery, she claimed
not to have seen Rowe in a month. A police license plate reader
had also registered a scan of Rowe’s car about two miles away
from the crime scene at about 2:22 a.m. on the day of the robbery,
April 10, 2018. A computer forensic specialist testified that the
metadata on the girlfriend’s videos was incomplete, and he was
unable to determine when the videos were created. He
demonstrated how the timestamp displayed on the videos could
be fabricated by adjusting the phone’s time and date settings.
d. Judgment
The jury convicted Rowe as charged and found the firearm
enhancement to be true. The court struck the enhancement and
sentenced Rowe to the upper term of five years. He timely
appealed.
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DISCUSSION
1. Exclusion of the Second Suspect’s Cell Phone Records
Rowe argues the trial court prejudicially abused its
discretion and violated his right to due process when it excluded
the second suspect’s cell phone records.
a. Trial Court Proceedings
The prosecution initially charged both Rowe and Burgess
with robbery. However, when subpoenaed cell phone records
showed that Burgess’s phone “was pinging off the towers in
Palmdale” — far from the vicinity of the crime — the prosecution
dismissed the charge against him.
At trial, defense counsel announced her intent to call
Burgess’s attorney, Tiomkin,3 as a witness to authenticate the
cell phone records and testify that the records indicated Burgess’s
phone was not close to the scene of the crime at the time of the
robbery. Defense counsel argued that this evidence showed the
victim misidentified Burgess, which would undermine the
reliability of the victim’s identification of Rowe as the other
robber. The prosecutor objected to the proposed testimony on the
ground that Tiomkin was not qualified to lay a foundation for the
phone records. The court agreed and denied defense counsel’s
request to allow Tiomkin to testify for the purpose of
authenticating and admitting the phone records. No evidence of
Burgess’s whereabouts at the time of the robbery or the dismissal
of the charge against him was admitted.
3 The record does not disclose the Tiomkin’s first name.
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b. The Trial Court Acted Within Its Discretion in Excluding
Tiomkin’s Testimony
The issue before us is whether the trial court erred in
concluding that the phone records were not properly
authenticated. At times in his appellate briefing, Rowe paints a
broader landscape, suggesting the trial court erred in not
allowing evidence of the significance of the phone records,
Burgess’s location at the time of the robbery, and possible
misidentification of Burgess by the victim. That is not what the
trial court did. The court acknowledged the significance of the
line of inquiry. It sustained the People’s objection only on the
limited point that the defense could not properly lay a foundation
for the introduction of the specific phone records. The People did
not object on grounds of relevancy; nor did the trial court find the
evidence irrelevant.
The argument that Rowe actually makes is that the trial
court erred in concluding that Tiomkin could not adequately
authenticate Burgess’s phone records. According to Rowe,
Tiomkin needed only to testify that he had earlier subpoenaed
the records and they arrived with the custodian of records’
affidavit establishing their authenticity. Rowe argues he was
prejudiced by the court’s exclusion of Burgess’s phone records
because this evidence would have undermined the reliability of
both of the victim’s identifications. Respondent argues that
defense counsel did not offer evidence the records were in fact
accompanied by an affidavit, and the trial court did not err in
concluding Tiomkin was not qualified to authenticate the
documents.
Evidence Code section 1271 provides an exception to the
hearsay rule for business records. The business records exception
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requires a foundational showing that: the writing was made
(1) in the regular course of business; (2) at or near the time of the
act, condition, or event; (3) the custodian or other qualified
witness testifies to its identity and mode of preparation; and
(4) the sources of information, mode, and method and time of
preparation were such as to indicate its trustworthiness. (Evid.
Code, § 1271.) Records obtained by a subpoena may be admitted
without live testimony if the records are produced by the
custodian of records or other qualified witness, together with an
affidavit certifying their authenticity. (Evid. Code, § 1560, subd.
(b).) We review for abuse of discretion a trial court’s decision as
to whether a party has laid a proper foundation for the admission
of records under the business records exception to the hearsay
rule. (People v. Zavala (2013) 216 Cal.App.4th 242, 245–246;
Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 319.)
There is no serious dispute that Tiomkin was not qualified
to authenticate Burgess’s phone records: he was neither a
custodian of records nor did he have any direct knowledge of the
preparation of these records. Rather, Rowe in essence argues the
trial court should have taken Tiomkin’s word and assumed that
the records were produced with an affidavit by a custodian of
records establishing their authenticity. Rowe contends, “When a
defendant issues a subpoena for non-party business records,
Evidence Code section 1560, subdivision (b) requires the third
party to return the requested records to the clerk of the court,
along with an affidavit authenticating the reliability of those
records pursuant to Evidence Code section 1561.” Although Rowe
may be correct that when he received the records they were
accompanied by the required affidavit, defense counsel did not
assert that an affidavit was available and would be provided with
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the records. Rowe’s argument reduces to: Tiomkin received
these records; they were good enough to convince the District
Attorney to drop the charge against Burgess; so they are good
enough to introduce in Rowe’s trial. Not surprisingly, nothing in
Evidence Code sections 1271 or 1561, nor any authority cited by
Rowe supports such a rule.4 We conclude the trial court acted
within its discretion in sustaining the objection that defense
counsel had not demonstrated that Tiomkin could adequately
authenticate the phone records.5
Rowe also argues that the exclusion of Burgess’s phone
records deprived him of his constitutional right to present a
defense. The exclusion of evidence under state evidentiary rules
ordinarily does not violate a defendant’s due process rights, “ ‘if
the exculpatory value of the excluded evidence is tangential, or
cumulative of other evidence admitted at trial . . . .’ [Citation.]”
(People v. Edwards (2013) 57 Cal.4th 658, 760.) Here, Burgess’s
4 Nothing in the record suggests that Rowe’s counsel asked
for a continuance in order to subpoena Burgess’s phone records.
On the contrary, during colloquy among court and counsel,
Rowe’s counsel said, “I have no way of introducing evidence
regarding the former codefendant’s cell phone information.”
5 Rowe does not discuss that determining the general
location of a cell phone at the time of a particular call based on
historical cell site data is a proper subject of expert testimony.
(See, e.g., People v. Garlinger (2016) 247 Cal.App.4th 1185, 1192
[the trial court accepted a detective as an expert in cell phone
data analysis, allowing the detective to testify as to the “vicinity
of the phone,” when the detective had attended training on “cell
phone record analysis,” had analyzed call detail records at least
40 times, and had testified as an expert on call detail records in 4
cases].) Tiomkin was not qualified as an expert.
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phone records were tangential to Rowe’s defense. Rowe’s primary
defense was his girlfriend’s alibi evidence. If the jury had
believed the alibi defense, it would have undoubtedly found Rowe
not guilty and the claimed misidentification of Burgess would
have been beside the point. Even without the phone records,
defense counsel was still able to challenge the victim’s
identification of him based on inconsistencies in the victim’s
descriptions of the suspects — for example, defense counsel
questioned the victim about his claim that the two suspects
looked similar and about the victim’s initial description of Rowe
as the taller robber and subsequent concession that Rowe was the
shorter robber. (See People v. Bradford (1997) 15 Cal.4th 1229,
1325 [the trial court’s ruling did not deny defendant’s right to
present a defense, but merely rejected certain evidence
concerning the defense].) The exclusion of this evidence did not
deprive Rowe of the ability to present a defense.
2. Ineffective Assistance of Counsel
Rowe contends that counsel rendered ineffective assistance
by eliciting testimony from the victim about his identification of a
second suspect once the trial court had ruled that Burgess’s
phone records would be inadmissible. Respondent argues that
counsel had a tactical reason for her actions, and there was no
prejudice. Thus, Rowe failed to establish either of the two
elements of ineffective assistance of counsel.
A “ ‘defendant claiming a violation of the federal
constitutional right to effective assistance of counsel must satisfy
a two-pronged showing: that counsel’s performance was
deficient, and that the defendant was prejudiced, that is, there is
a reasonable probability the outcome would have been different
were it not for the deficient performance.’ [Citations.]” (People v.
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Woodruff (2018) 5 Cal.5th 697, 736.) We presume “that counsel’s
conduct falls within the wide range of reasonable professional
assistance. . . .” (In re Long (2020) 10 Cal.5th 764, 773.)
“Whether counsel’s performance was deficient, and whether any
deficiency prejudiced defendant, are mixed questions of law and
fact subject to our independent review.” (In re Gay (2020)
8 Cal.5th 1059, 1073.)
Here, although Rowe contends that defense counsel “could
have no tactical reason” for introducing the second identification
“without ensuring she would be able to prove that second
identification was false,” the record shows the opposite. Counsel
sought to challenge the victim’s reliability as an eyewitness.
Counsel told the trial court that, while she understood that she
was not allowed to introduce “the former codefendant’s cell phone
information,” she still intended to question the victim
“about his identification of the two people he claimed
robbed him.” The victim had made “mistakes from the very
beginning” regarding his identifications, and “that’s
relevant to [the] argument, that this person identifying Mr.
Rowe picked the wrong person.” “[T]here are two people
that come at [the victim] with guns and he gives
descriptions of what they are wearing, he gives descriptions
of their height . . . and those change over time.”
Counsel then proceeded to challenge the victim’s testimony that
the two suspects “looked alike.” Counsel invited the jury to
consider the two photos of the suspects the victim circled in the
six-packs, and argued the suspects did not look alike, and the
victim had not accurately identified the suspects. We cannot say
on this record that counsel’s decision to elicit testimony about the
identification of a second suspect was ineffective assistance.
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3. CALCRIM No. 315
Rowe argues the trial court erred in instructing the jury
with CALCRIM No. 315 on eyewitness identification evidence.
This instruction directs the jury to consider, among other things,
“how certain” an eyewitness was when he “made an
identification.” Rowe contends the error violated his state and
federal constitutional right to due process, citing to case law
noting that scientific studies have found “a weak correlation
between witness certainty and accuracy . . . .” (See People v.
Sanchez (2016) 63 Cal.4th 411, 462 (Sanchez).)
Rowe did not object to the instruction or request that the
trial court modify CALCRIM No. 315 to remove the challenged
language. The Attorney General argues Rowe has forfeited this
claim. (See Sanchez, supra, 63 Cal.4th at p. 461 [“If defendant
had wanted the court to modify the instruction, he should have
requested it. The trial court has no sua sponte duty to do so.”];
see also People v. Rodriguez (2019) 40 Cal.App.5th 194, 199–200
[“Rodriguez argues CALCRIM No. 315 violates his Fourteenth
Amendment due process rights because it tells the jury to
consider eyewitness certainty. Rodriguez’s counsel did not object
at trial. This is forfeiture.”].)
Rowe argues there was no forfeiture because it would have
been futile to object before the trial court. (See People v. Gomez
(2018) 6 Cal.5th 243, 286–287 [“Reviewing courts have
traditionally excused parties for failing to raise an issue at trial
where an objection would have been futile . . . .”].)
At the time of trial in this case, the Supreme Court had
upheld the inclusion of the certainty factor in CALJIC No. 2.92,
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the predecessor to CALCRIM No. 315.6 (Sanchez, supra,
63 Cal.4th at p. 462; People v. Rangel (2016) 62 Cal.4th 1192,
1215 [no forfeiture where the governing law at the time of trial
“afforded scant grounds for objection.”].) However, the question
of the continued inclusion of the certainty of eyewitness
identification in CALCRIM 315 had been pending before our
Supreme Court for over a year before trial in this case. The issue
remained pending at the time of trial. (See People v. Lemcke
(June 21, 2018, G054241) [nonpub. opn.], review granted Oct. 10,
2018, S250108.).) Under these circumstances, we conclude Rowe
forfeited the argument by not objecting.7
6 Although the Supreme Court analyzed CALJIC No. 2.92, it
cited to similar language used in CALCRIM No. 315. (See
Sanchez, supra, 63 Cal.4th at p. 461.)
7 While this appeal was pending, the Supreme Court filed its
opinion in People v. Lemcke, holding that CALCRIM No. 315 did
not violate the defendant’s due process rights despite empirical
research showing that confidence in a witness identification is
generally not a reliable indicator of accuracy. (People v. Lemcke
(2021) 11 Cal.5th 644.) However, the Court recognized the risk
that the instruction “will prompt jurors to infer that an
eyewitness’s certainty in an identification is generally a reliable
indicator of accuracy.” (Id. at p. 680.) Accordingly, utilizing its
supervisory powers, the Court directed that, except when a
defendant asks for the instruction, “trial courts to omit the
certainty factor from CALCRIM No. 315 until the Judicial
Council has the opportunity to consider how the language might
be better worded to minimize juror confusion on this point.”
(Ibid.)
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4. Cumulative Error
Rowe contends his conviction must be reversed for
cumulative error. Because we have found no error, there are no
errors to accumulate. (People v. Reed (2018) 4 Cal.5th 989, 1018.)
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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