Filed 5/5/15 P. v. Boungnarith CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140610
v.
AARON BOUNGNARITH,                                                   (Alameda County
                                                                     Super. Ct. No. C171690)
         Defendant and Appellant.


         A jury found defendant Aaron Boungnarith guilty as charged of two counts of
second degree robbery while impersonating a peace officer (Pen. Code, §§ 211, 538d).
Defendant was sentenced to three years in state prison, that term to be served consecutive
to a ten-year federal sentence. The sole contention he advances on appeal is that the trial
court committed prejudicial error when it granted the prosecution’s in limine motion “to
admit non-percipient witness identification,” specifically allowing the witness to identify
defendant in video surveillance. We affirm.
                                                  THE SETTING
         The trial court’s ruling must be evaluated solely on the basis of what information
was before it at the time. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220;
People v. Welch (1999) 20 Cal.4th 701, 739.) Therefore, there is no need to summarize
the evidence received at the ensuing trial.
         The prosecution’s moving papers below concisely stated the nature and
background of the issue presented to the trial court:




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       “[T]he People seek to introduce testimony from Jantar Phun identifying the
defendant as a participant in the June 23, 2012, and July 1, 2012 robberies of Magic
Fingers Spa [the two charged offenses]. Ms. Phun was not a percipient witness to the
[robberies], but rather identified the defendant through video surveillance.
       “On July 12, 2012, San Mateo Police arrested Jantar Phun for participating in a
robbery of a prostitution house. As a result, San Mateo Police contacted the Berkeley
Police Department due to similar robberies in Berkeley. Sergeants Dave Lindenau and
Frank Landrum responded to the San Mateo Police Department and interviewed
Ms. Phun.
       “During the interview Sergeants Lindenau and Landrum showed Ms. Phun four
surveillance videos of robberies that occurred at the Magic Fingers Spa on June 18, 2012,
June 23, 2012, July 1, 2012, and July 6, 2012. In the videos relating to the June 23, 2012,
and July 1, 2012 robberies, Ms. Phun identified the defendant as one of the suspects.
Ms. Phun also identified Que Bui as another suspect of the two robberies. Ms. Phun said
that Que Bui also goes by the name Joseph. Ms. Phun said the defendant and Que Bui
had been spending time together recently and discussed robbing massage parlors in
Berkeley.
       “During the interview Ms. Phun explained how she was familiar with the
defendant’s appearance. Ms. Phun described the defendant as a ‘cousin’ of her
boyfriend. Ms. Phun said the defendant had long hair, a mustache and looked similar to
her boyfriend Samay. Ms. Phun explained that she was familiar enough with defendant
to know where he lived in Oakland and currently did not have a phone to be contacted.
Moreover, Ms. Phun said that she had seen the defendant as [recently] as the night before
she was interviewed by the Berkeley Police Department.
       “In reviewing the video surveillance interview Ms. Phun was able to identify the
defendant’s distinctive walk and facial features. Additionally, Ms. Phun was able to
distinguish the defendant from her boyfriend by his build and hair.”
       Phun testified at an evidentiary hearing pursuant to Evidence Code section 402
that she has known defendant for 15 years, “since we were kids” (i.e., “teenagers”).


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Defendant did not “look different” at the hearing than he did in June 2012. In 2012 she
saw defendant “probably a couple of times a week,” although they did “not really”
interact.” She saw defendant at the Oakland home of “Joseph.” Phun spoke with
Berkeley police officers “when I got caught for my case in San Mateo.” They showed
her video surveillance tapes. Phun subsequently spoke with the prosecutor and Inspector
Foster. On both occasions Phun identified defendant as depicted on the tapes. At the
hearing Phun was shown photographs (People’s Exhibits 1 & 2) from the tapes which she
identified as depicting defendant.
       Phun testified on cross-examination that in 2012 she used “meth” every day. She
supported this habit by stealing with her boyfriend, Samay Pomsouvanh, who looks a lot
like defendant. When she called defendant a “cousin” of her boyfriend, this did not
indicate a blood relationship, just that Samay and defendant were close friends. When
asked if the man on the tapes was Samay, Phun initially told the Berkeley officers she
could not make an identification from the video tapes. Phun concluded by testifying that
she was “high” at the time she spoke with the Berkeley officers, and did not know who
was depicted on People’s Exhibits 1 and 2.
       Inspector Foster testified that he met with Phun “last week” in the county jail.
When shown People’s Exhibits 1 and 2, Phun “immediately” identified the person
depicted as defendant.
       People’s Exhibits 1 and 2 were received in evidence, as were “the surveillance
tapes from the June 23rd and July 1st incidents,” which the trial court reviewed. Defense
counsel argued that Phun’s testimony at trial would be unnecessary: “I think that an
average person can make an identification from the video that the jurors are going to see.
They don’t need anybody else’s opinion in forming their own as to whether or not the
person depicted is Mr. Boungnarith or not.” Counsel disagreed with the court’s question
whether Phun’s testimony might be “useful to the jury to corroborate their own opinion,”
responding as follows:
       “In this situation, no, it’s not. And it’s not for the very reason that the Court
questioned Mr. Layton [the prosecutor] because there are several different opinions from


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a witness who admits to being under the influence at the time that the opinion was
offered, and who has an obvious interest, bias, or motive to lie at the time that the opinion
was offered. So I think that the opinion . . . is virtually useless. And in fact, if the Court
allows the opinion in, . . . I have a strenuous objection under [Evidence Code
section] 352, because what we do is we create a mini-trial as to the believability,
credibility of Ms. Phun, and then we end up comparing and contrasting
Mr. Boungnarith’s word versus Samay Pomsouvanh, who I think the testimony this
morning was looks very similar to the defendant. And I think I know that the statement
to the Berkeley police was such that she can’t tell them apart on the video, so . . . [¶] . . .
[a]llowing Ms. Phun’s opinion truly muddies [the] water and creates a bunch of other
issues that the Court doesn’t have to do, because the video in and of itself is pretty darn
clear. And . . . the complaining witness has viewed a photo array of Mr. Boungnarith and
said yes, yes, absolutely. So we need an opinion of Ms. Phun for what?”
       And counsel continued: “[I]t ends up portraying Mr. Boungnarith in a negative
light, because this is somebody who he hangs around with, so we’re ending up with a bit
of guilt by association, if not a lot of guilt by association. [¶] And clearly when Ms. Phun
testifies that her boyfriend looks like the defendant, again, we see that that comes back to
a little bit of guilt by association. So, again, I don’t believe that Ms. Phun’s identification
opinion particularly aids the trier of fact in determining the issue of ID in the crime, and it
creates—I don’t want to say insurmountably, but it creates grievous 352 issues based
upon the time that it’s going to take to get into Ms. Phun’s criminal history, to get into the
whole consistent/inconsistent statements, and we create a mini-trial by adding people to
come in to impeach or support her prior testimony, however it comes out.”
       At the conclusion of argument, the court ruled as follows: “I do find that the
witness has sufficient familiarity with Mr. Boungnarith that she could offer her opinion
that Mr. Boungnarith is one of the persons in the June 23 and July 1 incidents as shown in
the respective videos of those incidents. And that that familiarity was near the time of the
portrayal of the videos occurred. The witness was familiar with enough to say that
between the time she had last seen Mr. Boungnarith until today, he has not changed his


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appearance. I do think that the evidence is strongly probative to corroborate evidence
that the jury will see when it views the video, and to that extent . . . the testimony would
aid the trier. Relative to the 352 issues, the question is whether the probative value
strongly outweighs the cumulative nature to have testimony, and I don’t [sic] find that it
does nor do I find that is outweighed by the consideration of undue time. So she may
testify at this trial.”
                                        DISCUSSION
        Defendant aims a number of arguments against this ruling. He does not renew his
claim the testimony was not relevant, because it clearly was: “It is now clearly
established that lay opinion testimony concerning the identity of a robber portrayed in a
surveillance camera photo of a robbery is admissible where the witness has personal
knowledge of the defendant’s appearance at or before the time the photo was taken and
his testimony aids the trier of fact in determining the crucial identity issue. (People v.
Mixon (1982) 129 Cal.App.3d 118; People v. Perry (1976) 60 Cal.App.3d 608.) Where
. . . for any reason the surveillance photo is not conclusive on the identity issue, the
opinion testimony of those persons having knowledge based upon their own perceptions
(Evid. Code, § 800(a)) of defendant’s appearance at or before the time the crime occurred
is admissible on the issue of identity, and such evidence does not usurp or improperly
invade the province of the trier of fact.” (People v. Ingle (1986) 178 Cal.App.3d 505,
513.)
        Defendant does not claim the prosecution failed to establish the foundational
requirements for admission, or that the trial court erroneously found those requirements
satisfied. He does advance a number of arguments why the ruling cannot be sustained
with reference to Evidence Code section 352.1 His specific arguments are prefaced by

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        In his reply brief, defendant asserts for the first time that the trial court’s ruling is
procedurally defective because “the trial court did not perform the required analysis”
under section 352 because “ ‘the record must affirmatively show that the trial judge did in
fact weigh prejudice against probative value.’ ” (Citing People v. Leonard (1983)
34 Cal.3d 183, 187.) We reject this claim because it is untimely. (People v. Tully (2012)
54 Cal.4th 952, 1075.) Even if the claim had been preserved for review, we would reject

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this general characterization: “Phun’s testimony was cumulative on the central issue of
identification, but that was the least of its deficiencies. Her testimony plunged the jury
into a series of confusing and irrelevant issues: (1) her criminal record, activities, and
associations, (2) her use of methamphetamine and its possible effects, and (3) her
relationships with appellant and with Samay Pomsouvanh, whom she identified as her
boyfriend. Moreover, her confusing and contradictory testimony created a highly
prejudicial impression of appellant’s association with a criminal network.”
       Under section 352, “ ‘[t]he trial court has broad discretion both in determining the
relevance of evidence and in assessing whether its prejudicial effect outweighs its
probative value.’ ” (People v. Jones (2011) 51 Cal.4th 346, 373.) “ ‘ “ ‘A trial court’s
decision to admit photographs under Evidence Code section 352 will be upheld on appeal
unless the prejudicial effect of such photographs clearly outweighs their probative
value.’ ” ’ ” (People v. Mills (2010) 48 Cal.4th 158, 191.)
       Apart from the one use of the word “cumulative” quoted above, defendant does
not develop any argument that Ms. Phun’s testimony would be cumulative to other
evidence of defendant’s identity and participation in the charged robberies. The point
thus requires no further consideration. (See Cal. Rules of Court, rule 8.204(a)(1)(B)
[“Each brief must: . . . State each point under a separate heading or subheading
summarizing the point, and support each point by argument, and . . . citation of
authority”]; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may
disregard claims perfunctorily asserted without development and without clear indication
they are intended to be discrete contentions].)
       Defendant’s specific arguments are that Phun’s trial testimony about the identity
of the man depicted on the videotapes was confusing, as was her trial testimony about her


its merits. The rule cited by defendant no longer applies. “ ‘[A] court need not expressly
weigh prejudice against probative value or even expressly state that it has done so, if the
record as a whole shows the court was aware of and performed its balancing functions
under Evidence Code section 352.’ ” (People v. Hinton (2006) 37 Cal.4th 839, 892.)
This record does so show.


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drug use, her trial testimony about Samay, and, lastly, her trial testimony “about her
criminal record and criminal activities and her work as a police informant.” It has
already been established that the court’s pretrial ruling cannot be overturned on the basis
of evidence subsequently received at defendant’s actual trial. (Alcala v. Superior Court,
supra, 43 Cal.4th 1205, 1220; People v. Welch, supra, 20 Cal.4th 701, 739.) Defendant
does not attempt to demonstrate, on the basis of what was known to the trial court at the
time it ruled, that it was an abuse of discretion to grant the prosecution’s in limine
motion. Had defendant made such an attempt, it would not have prevailed.
       “It is surely desirable to avoid confusing the issues or misleading the jury, but it is
most difficult to conceive of relevant evidence . . . that can be condemned on these
grounds alone.” (1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence § 23,
p. 387.) As already established, Phun’s opinion evidence clearly did have relevance.
(People v. Ingle, supra, 178 Cal.App.3d 505, 513; see also People v. Larkins (2011)
199 Cal.App.4th 1059, 1066-1067; 1 Witkin, Cal. Evidence, supra, Opinion Evidence,
§ 6, pp. 614-616.) Such “confusion” as can be discerned from Phun’s testimony at the
hearing is most likely the result of a less than perfect command of the English language
and her hostility to her confinement and enforced presence at the hearing. Even
conceding the existence of confusion in the witness, it would not nullify her testimony.
(See, e.g., People v. Rist (1976) 16 Cal.3d 211, 216 [“Confusion, or lack of clarity and
positiveness goes to the weight, not the admissibility of the testimony”]; People v.
Gonzales (1968) 68 Cal.2d 467, 472 [“Lack of positiveness as to . . . identity went to the
weight and not to the competency of the evidence”].)
       Defendant’s final argument is headed: “Phun’s Testimony Created an Inference of
Guilt By Association.” However, what follows is pretty much a rehash of the earlier
arguments, with particular emphasis on the issues of confusion—and again based on trial
evidence. So, when defendant tells us that “Phun was connected with a criminal gang
that included Samay, Quoc [Bui], and Eddie [Chung], and also included appellant,” and
that this gang “preyed on the helpless,” particularly “sex workers in brothels, . . . some of
them recent immigrants easily cowed by fake ICE or Homeland Security insignia,” it is


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immediately clear she is referring to a raft of matters never mentioned at the hearing. For
each and both of these reasons, defendant’s final argument fails.
                                     DISPOSITION
       The judgment of conviction is affirmed.



                                                 _________________________
                                                 Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




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