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Name: People v. Sherow
Case #: D056988
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/09/2011
Subsequent History: Rehrg granted, mod. opn issued 6/28/11: 196 CA4th 1296

The trial court acted within its discretion in admitting surveillance videos under the business records exception to the hearsay rule. The Sherows, Jr. and Sr., were convicted of numerous counts of burglary and sentenced to prison. The prosecution sought to admit store surveillance videos which showed Sherow, Sr. shoplifting merchandise. The defense objected to the date/time stamp on the videos as inadmissible hearsay and asserted the videos were not properly authenticated. The trial court admitted the videos under the business records exception to the hearsay rule (Evid. Code, section 1271). The Court of Appeal found it is sufficient to have the videos authenticated by a qualified witness who is familiar with their mode of preparation, their identity, and the sources of the information such that the witness can testify as to their trustworthiness. The witness need not be present at every transaction to establish the business records exception; he or she need only be familiar with the procedures followed to create the record.
The video surveillance was properly authenticated. A video is considered a writing which must be authenticated to be admissible (Evid. Code, section 1401, subd. (a)). This authentication is established by testimony that it actually depicts what it purports to show. The investigator’s testimony was sufficient for this purpose, as the trial court reasonably determined she was familiar with the stores depicted in the videos.
The trial court erred in instructing the jury on the consent defense to burglary. Defense counsel argued the consent defense to burglary applied to the counts which charged Sherow, Sr. with burglary of a pawnshop by entering it to sell stolen property, based on evidence the pawnshop owner knew the defendant was selling stolen DVD’s and consented to him entering the store for that purpose. The court instructed the jury that Sherow had to prove consent by a preponderance of the evidence. However, the “affirmative defense of consent involves an element of burglary” which only requires a defendant to raise a reasonable doubt as to the facts underlying the defense. This is because the consent defense to burglary, “based on the occupant’s consent to the defendant’s entry into the building for the purpose of committing a felony, relates to the defendant’s guilt or innocence and is not entirely collateral to the elements of burglary.” Without deciding the standard which applies, the Court of Appeal held the instructional error prejudicial. There was circumstantial evidence that the pawnshop owner knew or should have known the DVD’s were stolen; had the jury been properly instructed there is a reasonable probability the jury would have found a reasonable doubt as to the underlying facts of the defense.