ALTO Webinar: 1
By Brian Weisberg
July 1, 2022
0:00 / 27:34
Alana Matthews00:00

My name is Alana Matthews. I'm the director of training here at the Prosecutor's Alliance, the first of its kind law enforcement association here to support reform- minded prosecutors and allies in the community. We are happy to welcome you to this special training with regard to prosecution strategies for retail theft and organized retail crime.

Welcome everybody from all over and with that, I will turn it over to Ms. Carrion.

Xochitl Carrion00:29

Thank you, Ms. Matthews. It's a pleasure to be here. My name is Xochitl Carrion. I am an Alto Staff Attorney just recently from departing the San Francisco District Attorney where I was a prosecutor for six plus years. I was able to get a vast experience in different fields of law starting from the ground up from misdemeanors to juvenile, domestic violence, as well as serious violent felonies, and our independent investigation bureau.

Prior to that, I was a civil attorney. I did transactional and litigation, in the fields of affordable housing, redevelopment, community economic development, municipal law, government law, et cetera. So it's an honor to be here. I'm very excited to be joined by all of the prosecutors and all the people that are interested in this very important crime that's really devastating a lot of our communities throughout California. So I appreciate your time. I know how incredibly busy you are and I'm excited to get started.

Great. And first thing I wanted to do is provide an overview of key theft and organized retail crime, evidence codes, penal code provisions. It'll be throughout the entire presentation. There will be citations in the presentation. In this one, I identified the key theft, organized retail crime, penal code sections, their exposure, as well as the CALCRIM. So you can easily go to them.

As you see, we have robbery, looting, burglary for closed commercial buildings, it's the second degree. Shoplifting, we have that one, and we still don't have a lot of information in terms of how it's combining with organized regional crime.

We have the 484, 487(a), 487(b)(3) , 490.4. And 490.4, as you all know is a brand new law that came into effect this year. And of course we have our penal code section 496.

Now, I left penal code section 496(a) it's not necessarily charged all the time. One of the reasons is because it's very difficult to prove in tests.

So let's go right into some of the key issues when looking at building your investigation, as well as your case in prosecution. What are the things that you want to know?

It's really important obviously to know the codes because, many times some of these cases are not vertical. So that means that the person who is booking or making the decisions of charging isn't the assigned attorney. So as the assigned prosecutor, you want to make sure to review the complaint and review the facts closely. Speak to your manager in the event that you see something, or you have an additional piece of evidence that comes throughout the prosecution so you can go ahead and amend and add more charges.

Of course, there is a weighing and balancing factor that comes in charging. So it's always important to reach out to your supervisor because there may be a more detailed discussion as to why specific charges are listed in the complaint and some are not.

Now these key provisions actually focus on the thefts themselves. It's important to keep in mind. There are plenty of other very serious crimes. For example, criminal threats, penal code section 4, 2, 2. we have assault with GBI. with weapons and they can become a very kind of loaded complaint. So there is a lot of analysis that takes into, charging decisions of what is the appropriate charge for that particular defendant, given criminal history, et cetera, all of those things.

So what are some of the unique issues emotionally and legally, as you may know, as prosecutors, the public may have a lot of expectations of what is it that they're going to have. They have Perry Mason for those that are a little bit more mature and they have, ally McBeal, they have, there is so much law, right?

Law and orders, images of what prosecutors do and people don't understand what that is. So a lot of times it's a lot of basic education of what is the. what is the parameters of the law and what are our ethical duties? We have very strong and important ethical duties that we need to abide by, including Brady, disc discovery, disclosure rules.

so we need to do a lot of education to the public community. And especially sometimes our witnesses and victims who are reluctant or fearful of coming to testify. The other issue is that there's a wide range of retail theft and organized retail crime. it can vary between the person who comes in and just steals candy, goes into a store and steals candy, or it's somebody that is working with, organizing, but other people stealing a lot things, more, a repeat offender, a more sophisticated offender, that has a fencing operation.

And those are a huge ref to some books. Especially when it comes to retail crime, there tends to be surveillance videos. So the response is look, you caught it on video slam dunk, but as prosecutors, we know that's not as a previous prosecutor. it's so soon. as previous prosecutor, I know, and as you, as current prosecutors know that it's not a slam dunk, there's a lot of different evidentiary hurdles that we need to, follow through on making sure that we overcome them and provide the context that is needed for a jury to truly understand what happened in the incident that may have only taken 30 seconds to one minute to actually the entire thing to have.

So one of the key things that we have and to deal with is proving intent, right? And what are, what do we look at to prove intent? First, we look at the victims and witnesses, impressions, and statements. those can be, recorded. Those can be written down, many different corporations, death, many different companies have loss prevention officers, and they have an internal process for reporting.

So they may have a loss prevention officer make down, write down statements and be able to, in addition to verbally make statements to the police. So we want to make sure that we have the whole body of statements available to us. So as a prosecutor, you want to find out, is there other statements that are not part of what the police collected?

Is there any internal statements that the company takes as part of its own safety, precautions, and procedures that you have access to? Now we also, of course, look at words, written, bearable and gestures. We want the statements by the defendant before, during and after the crime. it is not about the 30, 40 seconds.

One minute incident. It is an entire picture that we're trying to present to the public and tour jurors. The most obvious is ID. We, especially with, COVID in the pandemic and people wearing masks. It's been very important to not only rely on facial features and a person's face, which is the first thing you think of it, but their gates, their clothes, the way that they speak.

Is there something, any tattoos? What is it about that person that differentiates them from all the other people there? We also want to look at the recordings of incidents. Surveillance videos are. phone recordings, nine one one calls a body-worn camera. If your jurisdiction in California, we have body-worn cameras, thankfully, as well as the context, what's the date, time location, the path of travel to and from.

And we'll talk about that a little bit more. When I go into surveillance videos a little bit more, we also want to look at the surrounding circumstance. Is this meeting, is there something, is there a verdict that just came in that has inflamed the passions of the community that they are going and, into a community and, looting, We had people who had are advantageous was that moving to people that express their frustrations with the political system in different ways. So we want to make sure that we keep that in mind, because we don't want to forget that there are specific charges for looting. We also want to look at the particular selection in.

Are these repeat offenders? Are these cross offenders? They go from one place and then walk down the street a couple blocks and hit up a whole bunch of places. Or do they target a specific company? like one of my clients, Walgreens. Do they go just to Walgreen's stores and make stops or do they go to different businesses?

Do they go for a specific, item? there are individuals, usually there's nicknames or monikers that are used. It's like the candy man. The rainbow goes, there's all these different ways of identifying who these people are in groupings based on what they wear or what they are taking. We also want to keep in mind the victimology and the physiological effects of any victim of crime.

And I'll talk about that a little bit more upward when it comes down to it. We want all the evidence. We want to see everything, any evidence of the intent to commit. Now looking at the evidence, what type of evidence? What's our sources of meth minutes. Number one, of course we want documented incidents prior contacts with law enforcement.

that of course can be introduced through evidence code 1101 B to show the behavior, lack of motive, lack of mistake, knowledge, all of those things. We want to see patterns of conduct. So if they're working in a team, for example, there's a nickname for one offender. I know it's called the key man.

This individual goes in, has a fake, he unlocks, opens the locks and then walks out and then 30 minutes to an hour later, their co-conspirator here, ends up walking in opening the, where they unlocked things and then taking things out. so that's, we want to figure out what's their emo, how do they get.

Social media posts and blogs are huge. I and my colleagues are also were able to assist, the Oakland police department, after, the November 19th, leadings and, Beth's retail, fashion, organized retail crime that occurred in San Francisco. Soon thereafter, people are posting on social media saying, Hey, at two o'clock, we want you to hit up this store.

In this case, it was Walgreens. We were able to work with all the Walgreens stores and shut them down. The, Oakland police department was wonderful and had, a reporting on officers sent to every location. And we were able to stop an event from happening where no one got hurt, no one got stupid. There was no stolen items and, Our staff, right?

Like the victims and the witnesses to us, which are staff members and consumers and community members. Weren't traumatized by being part of something that can be so scary. internet searches, browser history, freaking websites. We can always do deep dives on those. And, the phone dumps. We also want to look with any associations and affiliations with other retail or organized retail crime suspects.

Another key point is talking to friends, family, neighbors, coworkers, acquaintances, any prior complaints against assess SPECT, including want to do civil searches to find out if there's any fraud or anything that can be used as a crime of moral turpitude kind of misconduct. We want to also look if there's lawsuits protective orders.

And of course I mentioned 1101 B I used 1101 B repeatedly when I, prosecuted cases. And it was an opportunity when I was not able to revive the case. Meaning you have a past incident that now because of the current incident, you can revive it because now there has established identification that in the first incident or the prior incidents, it wasn't clear.

And now you're able to put together a more robust package, right? Of what details this criminal history for this defendant in terms of retail. Now, how do we go about introducing key evidences and the evidence code and hurdles of admissibility. I always recommend everyone to make their exhibit lists from the get-go.

You want your exhibit list to include your witnesses, your codes. What's going to be the tack on that with some maybe response to that. keep in mind, I use that, for a long, I used more for longer prelims, two day prelims, et cetera. as well as for trial, keep in mind. If you do want to give it to the clerk, maybe to make their life easier.

If you give anything to the clerk, AKA the court, you need to give it immediately to defense counsel. So if you have a two day prelim, you want, I want to hold off on that because then you're basically giving out your train of thought, right? It's your work product of what evidence of what you're going to prepare.

and obviously in, Trials. it's a different situation. You've had a lot of opportunities to do pretrial motions and bet that through outside the presence of the jury. So we want to talk about surveillance videos, ways of obtaining and introducing them at prelim as well as trial.

There are different ways that surveillance videos gets in the hands of prosecutors. One of the most general ways is that the police officer gets their own work cell phone and then records the video from that is being played on a surveillance screen or computer on a television. we also can get the original video if staff immediately, no.

Where it is, how to access it, how to download it. usually it, at the time of the incident, the reporting officer may not get the original video, but they will get enough to be able to present that to the prosecution, to make a charging decision. Investigators will then come through and get the original video from staff and identify who the custodian of records when it comes to, specific companies that usually is the store manager that tends to be the custodian of records.

A lot of folks think that it's a larger national company that you need to get the national person, but you actually don't. You need the person that is responsible at that time for the, Recording. They're the ones that are going to have the information of, if there's any discrepancies with the timestamp, daylight savings, if there's been a change, why aren't there?

if there's any issues with the video, they will be able to explain the reason why, oh, we forgot to change this it's 20, 21, but it's actually happened 2020, whatever minor things can happen. There'll be the ones that have hold or the holders of that information. Now, when a video's and available, we always try to work with the inspector as soon as possible here at Alto, basically assisting them in getting the best evidence to the prosecutors.

and one of the things that the inspector may do is perform a prop one 15 video interview. It's very important to keep in mind. This is, has to be a verbal interview. There are prop one 15 forms that are using. to facilitate that interview, but that in and of itself is not evidence. it is really the verbal information you can ask for a stipulation from defense to enter that stipulate, that prop one 15 is true and correct.

And everything in that prop one 15 is authentic and true and correct, and rely on that. But you still want to make sure that your record is clear to avoid any attacks in a pro 9, 9, 5 motion, which attacks the charges, specified in an information. Now, what do you do when you don't have a video or a Prop 115 interview, you really want to make sure you get those victims and witnesses and testimony in.

You want to make sure the officer's prepared and has had a chance to review their body worn camera. Especially now with the courts opening up after COVID. We have a lot of officers who were constantly being re subpoenaed, and there's a lot of continuances. So you want to make sure to develop that good relationship with your officers to make sure that you know what their schedule is, and you have the opportunity if necessary and if possible, to prepare coverage for a colleague and, or, write a motion to continue if necessary.

Now it's also important to come into to realize that video evidence goes to weight and not admissibility. And, one of the things that has been very confusing that I've talked to many different folks about is what does that mean? Especially for newer attorneys. These are terms that sometimes are thrown out or said, oh, you'll have a more senior prosecutor said, oh, don't worry.

It goes to, it goes to wheat. And what does that mean? So admissibility is the evidence code allow is the evidence allowed via the evidence code? That's what that is. Is there provisions whether they're hearsay exceptions or there's other framework to allow that evidence in contrast weight is what is the significance that should be given to that piece of evidence?

and one of the arguments that I've made in different, trials is that, your honor, I understand that this is admissible. This is the defendant's mother. This is the defendant, significant other, their testimony should have less weight because of they have a personal relationship and are biased and have reasons to be able to, be dishonest directly or to really minimize the situation because they might not have her seen that person or are they just wanting to cover up.

So we want to make sure to make those arguments, authenticity is you first have to also introduce whether it's true and fact factual, whether it's correct. Does it accurately depict the incident or the fact that you are trying to be. it's also, when you get those issues about not having a video or using maybe the police officers, video, if you have a witness, they can authenticate it by saying that was me.

I'm the victim. That's me right there in the corner. You see me talking to in the other video. So when you ask for video from your inspector, it's important to not just request the video of the exact incident. You want to make sure you get a time-span before and after now I say all of these things with the caveat of, I recognize that prosecutors have a lot of work and they have a lot of cases.

So it is an overview of all the things you can do. but you want to really focus on that video. This is you want to prioritize. Because the video can help in establishing the path of looking at the path of travel, not just only inside the store, but outside the store. Because then again, if you have, arguments such as unconsciousness, lack of intent, all of those things, you can see that behavior that would contradict, Are they having conversations with your people? Are they, stopping to do other, things? are they actually acting erratic? Does that mean that they're not criminal liable or they didn't have intent? Not all the time. So you want to have kind of that deep dive analysis. Let's see. So what are the theories of admissibility?

There are 10, you want the direct evidence of the crime, right? those would be of course, statements, video, circumstantial evidence, things, leading up things that were missing that were there. prior to that, someone, an inventory person may have been stocked. And I was like, no, I stopped all of this. I just finished stocking it.

You want the identity of the prepper tater that intent, of course, the motive. why are they stealing credibility of the witnesses you want to make sure to impeach any of the witnesses and character witnesses? especially if they have any crimes of moral turpitude you want to negate foreclose, the defense.

you want to also make sure that you have a basis for your expert opinion and make sure to give that and disclose that, to your defense counsel. as soon as you can, once you've determined that will be your expert and you will be, including them as a witness in your case, and of course, lack of mistakes.

Now, I'm not going to go through all the different evidence codes that are relevant here. These are all very general. obviously we have evidence code two and 10 of relevancy. Revelent defining what rebel it is, as well as, what defines riding and riding is a very. definition the California statutes is includes video recordings, all kinds of recordings, 1240.

I love me some 12, 14 spontaneous statements. I have been able to use that for 9 1, 1 calls, and all kinds of different statements. When a customer, when a defendant is not in custody, there's an ongoing emergency. And that person is trying to seek out the help that of the officers. They want hope of a crime that just had.

this is specifically relevant when there are statements that are criminal threats. When someone says, a store manager or someone can ask them, Hey, can you put that down? I was like, leave me alone. Or I'm going to kill you back off. I'm going to kill you. I'm going to shoot you. I'm going to come back and shoot you.

those are really important. business record exceptions to hearsay, that also goes into any documentation and internal, statements that witnesses and victims may be required as their company's internal policy to write down. And of course, authentication 14 0 1 and 14, 13. Now victims, I always like to talk about victims because it's very important to think about who your victims are in this situation, who your witnesses are.

a lot of times when it comes to retail, theft people are desensitized. You have staff that goes in every day to do their job. They are not, staff in the public safety field. They are people that are working in a retail business. they are so sometimes used to this that they themselves will minimize.

You also need to think about cultural sensitivity if you need language translators. So we have a beautiful, diverse population in California and words matter. As we know in prosecution, we want to empower the victim to be able to truly express what happened to him, her, they, in these situations. And we want to make sure that we capture all of that.

We also want to understand that a lot of staff, a lot of customers, who are witnesses are coming into this role for a specific reason. People are coming in to fill there. A lot of folks that have. some of these stores, some of them may be essential services storm. Some of them may be higher end stores, but they're going in for something, They're not going in, to be a witness to crime. This is not an unexpected, but people have become so used to it that we want to make sure that we listen to them. And we explain when they minimize no, this is not okay. It is not okay that you go to work and that you are threatened your life history.

It is not okay that you are hit because someone wants to steal items and then resell them. These things are not okay. As many of you may already know a lot of different security guards and past secure security personnel may have their own criminal experience and also witnesses and other stuff. They may have a history of.

They may have an aversion to the criminal proceeding process. And that's when it's important to talk to them and make them realize this is not about you. This is about the crime that happened. You are a redemption story. You are showing that you have turned your life around. You have a job now, whether it's part-time and full-time, you came in for any reason and you are not the defendant.

You are not the accused, you did nothing wrong. I'm always key on empowering your victims and witnesses. I know that different prosecutors have different ways of, talking to victims, but we want to make sure that those victims know that they want them to stand in. What you said is already enough.

Why do you want to pause when answering questions? You want to give prosecutors a tie to object. You want to think about the questions you want to correct defense counsel. When they use words that you did not use, you are in a position of power. You control the pace you can ask. I don't understand. No, that's not what I said.

can you ask that question again? All of those things. So there's also different ways here for like social media. It's become easier. Now. Most social media platforms will have a page on their website on how to obtain their records. And for example, I've included here, the link for Facebook of how you access it.

Investigators have become much more involved in this much more sophisticated in this process. We want to make sure they're specific with time dates and ranges. And, I know you're so busy, but try your best to subpoena as soon as possible. So I also wanted to give you a little information about Alto, which is what I work on.

We provide support to retailers, law enforcement and prosecutors. some of the ways that we support retail law enforcement is by creating partnerships and building a lot of community engagement. There are historic reasons, especially for marginalized communities, my people to stress law enforcement, and we want to be able to.

strengthen and create that trust for create has where that trust has been damaged. So we work a lot with local communities and law enforcement to build partnerships and relationships and to test out pilots. what is really going to get engaged community and culturally sensitive, types of, activities for community, for prosecution.

We act as victim advocates, for victim advocates, as victim advocates, we assist in two roles at the investigation stage. We assist the inspector in getting the absolute best evidence to be able to provide a robust presentation for the district attorney for charging. as for our prosecution, once it gets to the prosecution, we will be there and support the victims, help prep the victims and the witnesses that are our corporate clients staff.

and as well as make sure that if any additional. It needs to happen. The key thing that we do, which I've heard from other prosecutors now that I've worked with in this capacity is we make sure people show up. And I think most prosecutors have had an experience where a victim or witness does not show up the day of court.

And after you've done that work and we want to make sure that these cases go through and that's one of the things of working to empower, our victims of witness. And finally we assist with obtaining what the restitution is and restitution documents. I'm happy to talk about this more in depth, and we'll have an opportunity later for questions and answers.

And also, I look forward to collaborating with you and there is my contact information. It's my cell phone, as well as my work email. I know this will be given to you, further on thank you so much. prosecutors Alliance for having this training.