Instagram — Testimony That Witness Downloaded Photo from Instagram and Third Party’s Cell = Sufficient Authentication Where Photo Clearly Showed Defendant — No Need for Expert Evidence as to Downloading Process

In re D.H., 2015 Cal. App. Unpub. LEXIS 867 (Cal. Ct. App. Feb. 6, 2015):

    D.H. appeals from a judgment entered in a proceeding under Welfare and Institutions Code section 602. He contends (1) the juvenile court erred by admitting a photograph of a photograph that was on someone else's cell phone, and which was also posted on a social media site, depicting him holding what appeared to be two firearms; (2) the court erred by admitting a photograph of the same image downloaded from the cell phone using a Cellebrite machine; ***. We will affirm the judgment.


 A. Admission of Photographs (Exhibits 13 and 13A)

 D.H. contends the juvenile court erred in admitting Exhibit 13 (the photograph of a photograph that Officer Ochoa originally viewed on Instagram, showing D.H. holding firearms) and Exhibit 13A (the same image that was retrieved from M.M.'s cell phone using a Cellebrite machine). Specifically, D.H. argues that (1) Exhibits 13 and 13A were not properly authenticated, and (2) Exhibit 13A was not subjected to a Kelly-Frye analysis or explained by expert witness testimony. We review for an abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.)

 1. Authentication of Exhibits 13 and 13A

 A photograph is a "writing," which is authenticated by "evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is" or "the establishment of such facts by any other means provided by law." (Evid. Code, 250, 1400.) Essentially, there must be evidence from which a trier of fact could reasonably conclude that the photograph is what the proponent purports it to be. [*8]  (People v. Goldsmith (2014) 59 Cal.4th 258, 267 [a photograph is authenticated when there is "sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered"].) If this threshold finding is met, the photograph is admitted (in the absence of any other meritorious objection) and the ultimate conclusion as to the photograph's authenticity is a question for the trier of fact. (McAllister v. George (1977) 73 Cal.App.3d 258, 262; see People v. Valdez (2011) 201 Cal.App.4th 1429, 1437 (Valdez) [burden of authentication is "not to establish validity or negate falsity in a categorical fashion, but rather to make a showing on which the trier of fact reasonably could conclude the proffered writing is authentic"].) That "conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility." (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.)

 Here, Exhibits 13 and 13A were offered as photographs depicting photos on M.M.'s iPhone, which in turn depicted D.H. holding what Ochoa believed to be firearms. There was ample foundation that these photographs were indeed contained on M.M.'s iPhone: as to Exhibit 13, Officer Ochoa testified that he personally photographed M.M.'s iPhone, and there was no evidence that Exhibit 13 did not fairly and accurately depict [*9]  the image as it appeared on M.M.'s iPhone (or as it had appeared on Instagram); similarly as to Exhibit 13A, Ochoa testified it showed the same image he had personally observed and photographed on M.M.'s phone (and observed on Instagram).

 Moreover, there was a sufficient foundation that the image depicted in Exhibits 13 and 13A showed D.H. holding what appeared to be firearms. Ochoa testified that he was familiar with the individuals pictured in Exhibits 13 and 13A, and there was no dispute at the hearing that D.H. was in fact depicted in those exhibits. Ochoa testified to the effect that D.H. was holding what he believed to be two firearms, and although the defense argued there was no proof that the objects were firearms, there was no dispute that they at least appeared to be firearms.[2] From this evidence, a trier of fact could reasonably conclude that Exhibits 13 and 13A were what they purported to be-photographic images of D.H. holding one or more apparent firearms. It was not an abuse of discretion to conclude the foundational element of authentication was met.[3]

 Instructive on this point is Valdez, supra, 201 Cal.App.4th 1429. There, the trial court admitted pages from the defendant's MySpace social networking [*10]  site that included his gang moniker, a photograph of him making a gang sign, and various written notations referring to gangs. (Id. at p. 1433.) An investigator testified that he printed out the Web pages a year before the shootings for which the defendant was charged; that a person's MySpace pages were accessible publicly, but only the person who has a password for the page may upload content or manipulate the images; and that he did not know who uploaded the photographs, created the MySpace page, or had a password to post content on the page. (Id. at p. 1434.) The court ruled that the defendant's challenge on authentication grounds nonetheless failed because there was evidence from which the trier of fact could conclude the site belonged to the defendant and the photographs depicted what they purported to show. (Ibid.) Of particular pertinence here, the court concluded that a photograph of the defendant forming a gang signal was authenticated: the defendant did not dispute he was the person depicted in the photograph; the content of the photograph suggested the placement of the defendant's hands was an intentional gesture; nothing on the page undermined the impression that the photograph was an accurate [*11]  depiction; and other content on the page reinforced the impression. (Id. at p. 1436.)

 Here, as in Valdez, the defendant did not dispute he was the person in the photograph holding what appeared to be at least one firearm, and other evidence in the case—including D.H.'s appearance at the window before firearms were tossed out-tended to corroborate rather than undermine the impression that D.H. was holding what appeared to be firearms in Exhibits 13 and 13A.

 D.H. protests that "[n]o one who was present" when the photograph of D.H. was taken testified as to its authenticity, and there was no expert testimony as to when it was taken or whether it was fake. His reliance on People v. Beckley (2010) 185 Cal.App.4th 509 (Beckley) in this regard is misplaced.

 In Beckley, the trial court admitted a photograph downloaded from the MySpace Web page of one of the defendants. (Beckley, supra, 185 Cal.App.4th at p. 514.) The photograph purportedly depicted the defendant's girlfriend making a gang sign, and was introduced to rebut her testimony that she was not associated with a gang. (Ibid.) The appellate court held that the trial court erred in admitting the photograph, because there was not any "evidence sufficient to sustain a finding that it is the photograph that the prosecution claims it [*12]  is, namely, an accurate depiction of [the girlfriend] actually flashing a gang sign." (Id. at p. 515, italics added.) The detective could not testify from personal knowledge that the photograph truly portrayed the girlfriend flashing a gang sign, and no expert testified that the picture was not a composite or faked photograph. (Ibid. [distinguishing People v. Doggett (1948) 83 Cal.App.2d 405 on the latter point].)

 Beckley did not establish a bright-line rule that no image from the Internet can ever be authenticated without testimony from someone who was present when the photograph was taken or an expert witness who can opine as to when and where the photograph was taken and whether it is a fake. The point in Beckley was that there was not any evidence that the girlfriend's hand placement was actually intended by her to be a gang sign. Here, there is ample evidence—even from the face of the photographs themselves—that D.H. was holding what appeared to be a firearm. (See Evid. Code, 1421 [contents of a document may authenticate it].) With this evidence, any argument that the photo might have been fabricated or manipulated goes to the weight of the exhibits, not their admissibility. (Valdez, supra, 201 Cal.App.4th at pp. 1436-1437.)

 The juvenile court did not abuse its discretion in concluding there [*13]  was sufficient evidence of authentication for the admission of Exhibits 13 and 13A.[4]

 2. Cellebrite Technology As to Exhibit 13A

 D.H. argues that Exhibit 13A-the image extracted from M.M.'s cell phone using the Cellebrite machine-was inadmissible because "Officer Wood's testimony concerning the Cellebrite technology he employed, and the data he extracted from [M.M.'s] cell phone by using Cellebrite," was subject to the Kelly-Frye test for new scientific techniques, and Officer Wood was not qualified as an expert and lacked sufficient knowledge or training concerning the device. (See Kelly, supra, 17 Cal.3d 24; Frye, supra, 293 F. 1013.) D.H. is incorrect.

 Wood's testimony regarding the Cellebrite machine did not require testimony by an expert witness. The testimony was not for the purpose of explaining how the Cellebrite technology worked, and Wood did not opine about the technological means by which the transfer occurred. Instead, he essentially testified to his experience that attaching a phone to this machine resulted in a display of photographic and other information that was contained in the phone, and identified the type of machine he used to download the material from M.M.'s iPhone. The idea that images may be downloaded from [*14]  a cell phone is familiar to the general population and, in this case, to the juvenile court as the trier of fact, as indicated by the court's comment that the photograph was "essentially just downloaded from the phone on to a piece of paper." In short, Wood's testimony was not of matters so "beyond common experience" that his qualification as an expert was required. (See Evid. Code, 801.)

 Nor did Wood's testimony require a Kelly-Frye analysis. The Kelly-Frye test applies to (1) expert testimony concerning a technique, process or theory new to science and to the law; and (2) unproven techniques or procedures that are presented as infallible, such as in the analysis of physical data. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1148 (Johnson) [use of database search to identify potential suspects, followed by DNA analysis, was a mere "investigative technique" for law enforcement rather than independent evidence presented to the jury of the defendant's guilt, and therefore not subject to Kelly-Frye].) Wood's testimony about the Cellebrite technology was aimed at merely describing the machine he used to download the images from M.M.'s cell phone, not to analyze the photographs or draw any scientific conclusions from them. Furthermore, the testimony [*15]  described law enforcement's investigative technique of downloading photos, as opposed to independent evidence of D.H.'s guilt.

 Moreover, the essential point of Kelly-Frye and its progeny is to guard against a jury's inclination to give considerable weight to scientific evidence presented with a "misleading aura of certainty." (Johnson, supra, 139 Cal.App.4th at p. 1147; Kelly, supra, 17 Cal.3d at pp. 31-32.) Here, the trier of fact was a judge, not a jury; Wood's testimony was not expert witness testimony or even scientific evidence; and there was no "misleading aura of uncertainty," since the reliability of the Cellebrite process was confirmed by the fact the photo purportedly downloaded by the Cellebrite machine from M.M.'s phone was independently observed on M.M.'s phone by Officer Ochoa.

 In any event, any error in admitting Exhibit 13A was harmless. The image depicted in Exhibit 13A was identical to the image shown in Exhibit 13. Even if Exhibit 13A had been excluded, the court would have still properly admitted and considered Exhibit 13, as well as Ochoa's testimony that he saw D.H. holding two firearms in a photograph he viewed on Instagram.

 D.H. fails to establish that the court committed a prejudicial abuse of discretion in admitting Exhibits 13 and [*16]  13A.

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