People v. Allen, 2014 Cal. App. Unpub. LEXIS 7776 (Cal. Ct. App. Oct. 29, 2014):

Brandon Allen appeals from a judgment which sentences him to three years formal probation for possession of marijuana for sale in violation of Health and Safety Code section 11359. Allen contends the trial court committed various evidentiary errors which warrant reversal.

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DISCUSSION

On appeal, Allen challenges the trial court's admission of the five text messages on the following grounds: (1) admission of four of the text messages violated section 1054.1 and violated his right to due process and a fair trial; (2) the text messages were inadmissible hearsay and their admission violated his Sixth Amendment right to confront witnesses against him; and (3) the text messages were not properly authenticated. After briefing by the parties was completed, the United States Supreme Court issued its opinion in Riley v. California (2014) 134 S.Ct. 2473, 2485 (Riley), which held that police officers generally may not, without a warrant, search digital information on cell phones seized from defendants as incident to an arrest. We requested letter briefs from the parties addressing the effect Riley had, if any, on this case.

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We find no error and affirm.

I. Admission of the Text Messages

On the day trial began, the prosecutor indicated he wanted to admit certain text messages from Allen's cell phone. The prosecutor initially identified only one specific text (Text 1)--"Hey, if I get through the gate, can I get a dime?" Detective Thue testified at the preliminary hearing to seeing Text 1 and noted it in the police report. Although he wanted to bring in the cell phone itself and present other text messages, the prosecutor admitted he did not yet know which specific texts he wanted because "I don't know all the statements on the phone." Allen objected to their admission on several grounds. The trial court initially agreed to admit only Text 1, finding it relevant and not hearsay. It refused to admit any others.

Shortly after the court's ruling, Detective Thue arrived with the cell phone and the prosecutor presented four additional text messages to defense counsel which he believed related to the sale of narcotics. Defense counsel objected to their admission on the grounds the disclosure was untimely, [*8]  violated Brady v. Maryland (1963) 373 U.S. 83 (Brady), and the messages were hearsay. The trial court reconsidered its previous ruling and allowed the additional four texts to be admitted. The trial court reasoned, "You had notice of it. I agree that you have not seen the actual messages. You had notice of this since at least at the latest June 13th that there were several messages on the phone. The phone has been there. The defense for whatever reason had not made a formal discovery [request]. I understand that the People have an obligation to turn over the discovery. It has always been there. It has not been lost. Therefore, I think that in this case, even though it is late as to the specific messages, you've always known it; your office has always known it." The text messages were admitted and both Allen and Thue testified about them at trial.

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B. Hearsay

Allen next contends the trial court erred in admitting the five text messages as this evidence amounted to inadmissible hearsay. Allen also argues the admission of the texts violated his Sixth Amendment right to confront witnesses against him, as he had no opportunity to challenge the persons who had sent the texts to his cell phone, citing to Crawford v. Washington (2004) 541 U.S. 36 (Crawford). He is mistaken.

Evidence Code section 1200, subdivision (a) defines hearsay as "a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) Requests ordinarily do not constitute hearsay because "[a] request, by itself, does not assert the truth of any fact . . . ." (People v. Jurado (2006) 38 Cal.4th 72, 117.) California courts have relied on differing theories to hold that phone calls requesting to purchase narcotics are not inadmissible hearsay. (Compare People v. Morgan (2005) 125 Cal.App.4th 935, 940-941 (Morgan) with People v. Nealy (1991) 228 Cal.App.3d 447, 450-451 (Nealy).)

In Nealy, police officers testified they answered several phone calls from individuals [*14]  interested in buying cocaine during their search of the defendant's residence. (Nealy, supra, at pp. 450-451.) The appellate court concluded the calls were not hearsay, reasoning, "subject to Evidence Code section 352, and appropriate editing, when a police officer participates in a telephone conversation where he is lawfully executing a search warrant and hears a third person offer to purchase a controlled substance, testimony thereon is not made inadmissible by the hearsay rule and may be received as circumstantial evidence tending to show the controlled substance seized at that location was possessed for purposes of sale." (Id. at p. 452; see also People v. Ventura (1991) 1 Cal.App.4th 1515, 1517-1519.)

In Morgan, the appellate court addressed substantially similar facts and "conclude[d] that under the provisions of California's Evidence Code the caller's oral expressions are hearsay, but that case law, recognized and accepted when the Evidence Code was adopted and continuing thereafter, has created an exception to the hearsay rule for this reliable type of evidence." (Morgan, supra, 125 Cal.App.4th at p. 937.) The court reasoned, "While the ultimate fact the statement is offered to prove is not the matter stated, the truth of the implied statement is a necessary part of the inferential reasoning process. The statement is relevant only [*15]  if the caller actually wants drugs as he states. If he does not want drugs, and is asking for them only to cause trouble for the defendant or as a crank call, then the call has no relevance because it is not circumstantial evidence that defendant is selling drugs. It is the caller's genuine desire for drugs and his belief that he can obtain them by calling the defendant's number that creates the inference that defendant's drugs are possessed for purposes of sale." (Id. at p. 944.)

Such "implied assertions" are not barred by the hearsay rule because they do not display the untrustworthiness characteristic of assertions subject to exclusion under the hearsay rule. (Morgan, supra, 125 Cal.App.4th at p. 944.) The court stated: "The rationale for not treating an implied assertion as an assertion subject to the hearsay rule is that it is primarily conduct and not intended as an assertion. To the extent conduct . . . rather than simply words are involved, the implied assertion is more reliable. . . . [¶] This rationale applies to the [request by phone] in this case. The caller was not intending to assert that [the defendants] were selling methamphetamine; rather, he was attempting to purchase methamphetamine. Because actions speak louder than [*16]  words, the caller's statements were more reliable than the usual hearsay statement." (Ibid.) As a result, the Morgan court treated admission of the caller's statement as an exception to the hearsay rule rather than nonhearsay. (Id. at p. 945.)

We need not decide here whether the nonhearsay, circumstantial evidence theory under Nealy is correct or the implied assertion, hearsay exception theory under Morgan is, as both render the text messages admissible. As in Nealy and Morgan, the five text messages were requests for various quantities of marijuana. Whether the five texts messages are viewed as nonhearsay statements or as implied assertions admissible under a hearsay exception, the trial court in Allen's current case did not err in admitting the text messages. We decline to depart from the authority presented by Nealy and Morgan as Allen suggests. We are not convinced by Allen's spare argument that both Morgan and Nealy were wrongly decided.

Neither are we persuaded the trial court erred in admitting the text messages over Allen's Crawford³ objection. "[T]he Confrontation Clause applies only to testimonial hearsay." (Davis v. Washington (2006) 547 U.S. 813, 823.) Testimonial statements consist of "statements, made with some formality, which, viewed objectively, [*17]  are for the primary purpose of establishing and proving facts for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14, italics omitted.) None of the five text messages could be viewed as statements made for the purpose of establishing or proving facts at a criminal trial. Indeed, we assume the authors of those text messages sincerely hoped their messages would not be used at a criminal trial.

3   Crawford, supra, 541 U.S. 36 [admission of out-of-court testimonial statements violated a defendant's right to cross-examination unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine].)

C. Authentication

Allen also contends the trial court erred in admitting the five text messages because they were not properly authenticated. We disagree. "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) "Circumstantial evidence, content and location are all valid means of authentication [citations]." (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)

Here, it is undisputed that it was Allen's cell phone. Detective Thue testified at trial that he recovered the phone [*18]  while executing a search warrant, that he found the phone on Allen, and that he and another detective reviewed the text messages on the phone. In his testimony, Allen did not deny it was his cell phone or that he received the text messages. Indeed, he explained the contents of the text messages in his testimony. These facts constitute sufficient authentication. In any case, there was no objection based on a lack of authentication. Thus, Allen has failed to preserve this issue for review. (People v. Sims (1993) 5 Cal.4th 405, 448 [failure to object to introduction of transcript of tape-recorded interview for lack of authentication waives issue on appeal].)