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Name: People v. Larkins
Case #: E050725
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/04/2011

Lay opinion as to identity of the defendant in videos may be admissible without personal knowledge by the witness of the defendant’s appearance when a comparison photo was taken. Defendant was charged with several burglaries of fitness clubs. At trial, over defendant’s objection, identity evidence was admitted pursuant to Evidence Code section 1101, subdivision (b). A loss prevention manager for one of the businesses testified that he viewed videos of defendant in prior burglaries and arrests and recognized him as the subject in current videos of defendant at the burglarized businesses. The court rejected appellant’s claim that a predicate for the admissibility of lay opinion as to identity of persons in surveillance videos is that the witness testify from personal knowledge of defendant’s appearance at the time a comparison photo is taken. (People v. Mixon (1982) 129 Cal.App.3d 118.) Mixon is distinguishable as defendant there had altered his appearance between the crime and trial and the identity source was a photograph rather than several videos, as was the case here. Further, the degree of knowledge of the subject by the identifier is a matter of weight, not admissibility.