People v. Lehmann, 2014 Cal. App. Unpub. LEXIS 6654 (Cal. Ct. App. Sept. 17, 2014):

Text Messages

Defendant argues the trial court erred by admitting text messages between him and Emily on the day of the murders because they were not sufficiently authenticated. We review the trial court's order admitting the text messages for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.)

A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027-1028.) A text message may be authenticated [*32]  "by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing" (Evid. Code, § 1421), or by any other circumstantial proof of authenticity (id., § 1410).

Emily's cell phone was recovered at the scene. The cell phone was given to FBI Special Agent Stephen Crist, working through the Orange County Regional Computer Forensics Laboratory. Crist imaged the data partition on the phone, where the user data is stored. Crist then used a forensic tool to reconstruct the text messages, downloaded the data, and provided it to Detective Carlos Diaz of the Costa Mesa Police Department. The downloaded text messages showed several text messages exchanged on May 3, 2011, between Emily's cell phone and the phone number identified as defendant's cell phone number. The foregoing was sufficient circumstantial evidence to authenticate the text messages.

In addition, the text messages referred to information that would be unlikely to be known to someone other than defendant. Specifically, the messages tracked defendant's known whereabouts on the day of the murders, and referred to the exchange of [*33]  A. scheduled for 6:00 p.m. and to the parenting class that defendant regularly attended. The trial court did not abuse its discretion in determining the text messages were sufficiently authenticated to be admissible.

Defendant argues the trial court erred by failing to instruct the jury, sua sponte, that it should disregard the text messages if it did not find the preliminary fact of authenticity had been established. Evidence Code section 403, subdivision (c)(1) provides: "If the court admits the proffered evidence under this section, the court: [¶] (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist." No sua sponte duty to instruct the jury as suggested by defendant exists (People v. Cottone (2013) 57 Cal.4th 269, 293-294; People v. Lewis (2001) 26 Cal.4th 334, 362), and defendant did not request such an instruction.

Even if the trial court erred in admitting the text messages over defendant's objections based on authenticity, we would conclude the error was harmless. We review the erroneous admission of evidence without sufficient foundation under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Lucas (1995) 12 Cal.4th 415, 468; People v. Percelle (2005) 126 Cal.App.4th 164, 183; People v. Willis (2004) 115 Cal.App.4th 379, 387-388.)

The issues before the jury related solely to defendant's mental state at the time he shot Emily and Russell. [*34]  There was ample evidence that defendant was legally conscious and the shootings were premeditated and deliberate, without the evidence of defendant's text messages to Emily. Defendant and Emily had a contentious relationship regarding A., and had had a major disagreement regarding A.'s education in the time leading up to the shootings. Defendant offered no expert evidence that a high dose or overdose of clonazepam can cause unconsciousness.

Defendant's entire defense was based on his claimed belief that he had lost custody of A., despite the testimony of Sullivan and the courtroom deputy that custody remained the same, and defendant's own testimony that Gorcyzca had told him custody could not be changed at an ex parte hearing. Defendant sent M., C., A., and Perez away from the house, although the very reason Emily and Russell were coming to defendant's house was to pick up A. Defendant was able to remember personal conversations and phone calls with M. and Perez, while being unable to remember text messages to and from Emily at about the same time. Defendant testified in detail as to how much medication and alcohol he had consumed after returning home from the court hearing, but then [*35]  could not recall anything about the events immediately before, during, or after the shootings. Defendant claimed that, while in a state of unconsciousness, he had opened the gun safe with a finger imprint mechanism, selected hollow point rather than full metal jacket bullets, loaded at least two magazines, twice prepared the gun to fire, shot Emily at close range, then continued to shoot Emily and Russell as they lay on the ground, placed the gun inside the house, and advised a 911 operator he was unarmed. After the shootings, defendant responded appropriately to paramedics and emergency room personnel, and clonazepam was not detected in a toxicology screening test at the hospital.

We conclude there was no reasonable probability of a more favorable outcome for defendant had the text messages been excluded.