People v. Boungnarith CA1/2

Filed 5/5/15 P. v. Boungnarith CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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”).