Text Authentication — Party Possessed Phone, Witness Texted Phone Number, Witness’s Cell Ties Number to Party’s Name, Party Acted Per Earlier Texts, Witness Called Number 6 Hours after Texts & Party Answered — Affirmed on Other Grounds

People v. Sissac, 2015 Cal. App. Unpub. LEXIS 1504 (Cal. Ct. App. Mar. 3, 2015):

The San Diego County District Attorney charged Demetrius Sissac with first degree, special circumstance murder (Pen. Code, 187, subd. (a)) in connection with the October 30, 2011 shooting of taxicab driver Jalaludin Hamrah, alleging that Sissac shot and killed Hamrah with premeditation and deliberation through the intentional and personal use and discharge of a handgun (Pen. Code, 12022.53, subds. (b), (c), & (d)), while knowing that Hamrah was engaged in the performance of his duties (Pen. Code, 190.25).

 The jury hopelessly deadlocked on the first degree murder charge, and the court dismissed that charge on the prosecution's motion. The jury ultimately found Sissac guilty of second degree murder with true findings on the firearm allegations. The court sentenced him to 15 years to life for the murder conviction, plus 25 years to life for the firearm enhancement under Penal Code section 12022.53, subdivision (d), for a total prison term [*2]  of 40 years to life.[1]

 Sissac appeals, contending that "a series of serious evidentiary errors, primarily arising from the purported records of cell phone activity that the prosecution used to argue that he essentially admitted the crime, both individually and collectively worked to deprive [him] of his fundamental constitutional rights to due process, a fair trial, to confront and cross-examine adverse witnesses, and to a reliable determination of guilt."[2] For reasons we shall explain, we reject this contention and affirm the judgment.

FACTUAL BACKGROUND

 A. The People's Case

 The Killing of Hamrah

 Devin Patton, who was also known as "D," was a friend of David Glenn, who was also known as "Jodi" or "Jodi Mack." Glenn introduced Patton to Sissac, whom Glenn knew as "Meech" or "Metrie." Sissac became one of Patton's best friends.

 On October 29, 2011, Patton went to a party in El Cajon. While there he and Sissac texted back and forth about the party, and he convinced Sissac to join him. Sissac arrived at the party at around 11:00 p.m. with Glenn, Glenn's cousin, Anthony Roy (Roy, who was also known as "Little Ant"), and an unknown male.[3] After about an hour or an hour and a half, Sissac, [*3]  Glenn, Roy, and the unknown male left the party. Patton stayed behind.

 About 30 minutes later, Patton was told to leave the party. He began walking, hoping to meet up with his friends. Patton eventually met up with the group, and the five men walked to the El Cajon trolley stop and arrived there between 3:00 and 3:30 a.m. The men went to the upstairs trolley platform but the trolleys were not running because it was so late.

 The victim in this case, Hamrah, drove a taxi cab. At around 3:30 a.m. on October 30, 2011, Hamrah was the first taxi driver in line waiting for customers at the El Cajon transit station. Sissac approached Habeel Othman, another cab driver who was at the transit station but not in the cab line. Sissac begged Othman for a ride and offered $20, explaining it was all the money his group had.[4] Othman took the money to Hamrah, who was at the front of the cab line. Sissac then managed to obtain a $20 fare for the group to travel to Lemon Grove.[5] Glenn testified that he, Sissac, Patton, Roy, and the other male got into Hamrah's cab. Both Patton and Glenn testified that Sissac got into the front seat while the other four sat in the back seat.

 Patton testified that, [*4]  during the taxi ride, Hamrah was making jokes, everyone was "cool," and there was no friction. After what Patton described as a "pleasant" ride, the cab stopped at the Lemon Grove trolley station. The five men got out of the cab and Patton began walking away with Anthony Roy and the unknown male. After a few moments, Patton and Roy heard a loud "pop." Patton, Roy, and the unknown male then took off running. As they were running, Patton asked what had happened and one of the men said, "Meech shot the cab driver." The men ran a few blocks and stopped. Roy was crying, and Patton was confused.

 Sissac and Glenn caught up with the other men. Patton testified that Glenn yelled at Sissac, "What the fuck did you do? Why the fuck did you do that?" Patton also testified that Sissac looked at Glenn with a blank look on his face and said the cab driver had laughed or smiled at him.

 Glenn, who testified under a grant of use immunity, testified he also heard a gunshot. Glenn testified that he asked Sissac, "What happened? What the fuck did you just do?" Glenn also testified that he "jump[ed] in [Sissac's] face" and told him, "You just smoked the cab driver." Glenn told Sissac they had just come from [*5]  the El Cajon trolley station, indicated there was video surveillance, and told Sissac that everybody could "go down for this." Sissac replied that since he was "the one that did it, there's no need to take everybody down with [him]." The five men then went home. Glenn testified he had given a .38-caliber gun to Sissac the day before the shooting.

 San Diego Sheriff's Detective Barbra Oborski testified that she was driving southbound on Main Street near the Lemon Grove trolley station at about 3:45 a.m. that same morning when she saw a car stopped in the middle of the road. Deputy Oborski stopped to investigate and observed that the car was an upside down taxi cab. The driver, who was later identified as Hamrah, was seat-belted and hanging upside down inside the vehicle, and was unresponsive. Hamrah was having difficulty breathing. Deputy Oborski called for an ambulance.

 When paramedics arrived and began rendering aid to Hamrah, they removed his shirt, which exposed a bullet hole in his right upper chest. Hamrah was pronounced dead at 4:11 a.m. The cause of death was a gunshot wound to his chest. The bullet recovered from Hamrah's body was consistent with having been fired from a .38-caliber [*6]  weapon, although other similar calibers could not be excluded.

 Patton's text messages to Sissac, Patton's police interview, and Patton's recorded pretext phone call to Sissac

 Patton testified that at 5:51 a.m. that same morning (October 30) he used his cell phone to text Sissac and told Sissac to turn himself in to the police. Patton also testified that Sissac responded later that he would call back. Patton further testified that he texted Sissac a few minutes later, "You hear what I'm telling you? This is way back." Sissac replied, "I know."[6]

 Patton also testified that he texted Sissac that night at 11:03 p.m. and told him to "be a man and own up." At 11:13 p.m., Patton asked Sissac to "[d]o the right thing, please, yo." At midnight, Sissac responded with a text message stating, "You have to pray." Patton testified he did not receive Sissac's text until 9:00 a.m. the next morning (October 31).

***

DISCUSSION

I. TEXT MESSAGES FOUND ON PATTON'S CELL PHONE

 Sissac contends the court prejudicially erred by admitting evidence of text messages found on Patton's cell phone that he and Patton exchanged with each other after the shooting incident. In support of this contention, he asserts that (1) the prosecution failed to provide an adequate foundation to authenticate the text messages and, thus, failed to "satisfy the authentication and reliability requirements of the business record or past recollection recorded exceptions to the hearsay rule"; (2) "[e]ven if the prosecution laid an adequate foundation," the "purported statements in the text messages" at issue here "were not direct accusations that Sissac had shot Hamrah or had committed any other specific crime" and, thus, the statements "were not admissible under the 'adoptive admission' exception to the hearsay rule"; and (3) the "probative value [of the [*11]  statements] to the question of guilt or innocence was minimal at best given their vague and ambiguous meaning," and, thus, the court should have excluded the evidence of the text messages under Evidence Code[8] section 352 because the probative value of the statements in the text messages was "substantially outweighed by the risk of undue prejudice and confusion of the issues in allowing the prosecution to rely upon them as evidence of Sissac's having effectively admitted that he shot Hamrah." Sissac's contention and supporting assertions are unavailing because, even if were we to assume the court erred in admitting the text message evidence, any such error was harmless.

 A. Background

 1. Pretrial proceedings

 In its trial brief, the prosecution argued that Sissac's out-of-court statements to Patton were admissible as admissions of a party opponent.

 With his own trial brief, Sissac brought a motion in limine seeking to exclude the evidence of text messages between Patton and Sissac that Sheriff personnel downloaded from Patton's cell phone, arguing that the unauthenticated messages lacked proper foundation and they were inadmissible hearsay because they did not constitute admissions by a party opponent. [*12]

 The prosecution opposed Sissac's in limine motion, asserting that it would provide a sufficient foundation at trial that would authenticate the text messages and allow a jury to conclude that Sissac sent the messages:

"Upon [his] arrest, [Sissac] was in possession of a cellular telephone, the phone number for that phone is 619-799-3642. Further, the People expect that Patton will testify as follows: (1) That the number 619-799-3642 is the number he used to communicate with [Sissac] via cell phone; (2) that number is programmed into his phone with the name 'Meech' or 'Meechie Sissac' . . . attached to it; (3) that he sent the text messages to that number, prompting the responses at issue; ( 4) that the messages were sent soon after the murder; and (5) . . . that he called [Sissac] about six hours after the text message exchange and [Sissac ] answered the phone."

 At the hearing on the parties' in limine motions, the court commented that admission of the text messages between Patton and Sissac was subject to a foundation being laid by the person who either sent or received the messages in order to authenticate the messages. The court, however, noted that some of the text messages between [*13]  Sissac and Patton did not appear to have evidentiary value. The prosecutor responded that the "string of texts" between Sissac and Patton were relevant because it showed the chronology of events and corroborated the testimony of witnesses that Sissac was with the group at a party. The prosecution also argued noted that Sissac's statements were admissible as admissions of a party opponent. The court ruled that if a statement by Sissac in a text message was an admission, "it's admissible."

 2. Trial evidence of text messages

 During trial Patton testified that Sissac, whom he called "Meech," was one of his best friends, and Sissac's contact information was in his (Patton's) cell phone under the name "Meech." Patton testified that he was texting "back and forth" with Sissac while he (Patton) was at the party on the night of the murder. Patton also testified that he texted Sissac after the murder and "asked him to do the right thing and turn himself in." The following exchange occurred between the prosecutor and Patton:

"[Prosecutor]: [W]hen you texted him, what did you text him if you recall?

"[Patton]: I asked him to do the right thing. I asked him to man up and I asked him to turn himself [*14]  in because if he didn't, things were going to get really bad, things like this is what I was saying to him, things like this don't just pass over, this is a sin.

"[Prosecutor]: Now, did you get any response from him at that point?

"[Patton]: No. [Sissac] didn't text me back at that time."

 Defense counsel objected to this testimony, arguing the text messages were inadmissible hearsay. The court overruled Sissac's hearsay objection, stating that Patton could testify about what he had said in the text messages.

 Patton then testified that Sissac ultimately responded to his texts, but Patton did not get the impression that Sissac was going to turn himself into the police. Patton also testified he later told his mother what had happened, and she called the police.

 Shortly thereafter, outside the presence of the jury, defense counsel discussed People's exhibit No. 117, which showed several text messages between Sissac and Patton. Sissac's counsel objected that the evidence was hearsay even if Patton was on the witness stand. The trial court responded, "It is hearsay in the classic sense that it's an out of court statement, but [Patton] can certainly testify as to what he said."

 In the presence [*15]  of the jury, the prosecutor showed Patton People's exhibit No. 116, which depicted a portion of the text messages he and Sissac exchanged on the morning of the crime (Oct. 30, 2011). Patton read the text messages. Patton testified that, in his first text message to Sissac "[he] said, 'Meech, turn yourself in, Meech. This shit is not going to be on my heart. This is crazy, Nigga. I'm so serious.'" The prosecutor then asked Patton, "So you sent that [text message] that morning from your phone, correct?" Patton answered, "Yes, sir." The prosecutor then asked, "To [Sissac's] phone?" Patton replied, "Yes, sir." The prosecutor then asked Patton what was Sissac's response, and Patton responded, "'I'ma call you later.'"

 The prosecutor then asked Patton, "[D]id you send [Sissac] another text back a couple [of] minutes later?" Patton replied, "I did, sir." The prosecutor asked Patton what he said in that text, and Patton answered, "I said, 'You hear what I'm telling you? This is way back.'" The prosecutor asked what was Sissac's response, and Patton responded, "'I know.'"

 At that point a juror indicated he was unable to see the time of that text indicated on the exhibit, and, at the court's [*16]  request, the prosecutor then listed all the times of the texts. Defense counsel then stated, "Your Honor, I'm going to object as to lack of foundation for the times." In response, addressing the prosecutor, the court stated, "Well, all right, then, ask the witness, 'Are those the times of those texts?'" The prosecutor complied and asked Patton, "Are those the times of those texts?" Patton answered, "Yes, sir." Following up, the prosecutor asked, Patton, "When you think back, was it early morning, a couple of hours after this incident?" Patton replied, "Yes, sir."

 The prosecutor then showed Patton People's exhibit No. 117, which depicted a portion of the text messages exchanged between Patton and Sissac later that evening. Patton confirmed that he sent a text to Sissac at 11:03 p.m. that stated, "Nigga, this ain't cool at all. I can't sleep or nothing. Yo, I didn't even do shit. You need to be a man and own up, Meech."

 Patton testified he sent another text to Sissac two minutes later that stated, "You ain't thinking about my life, my fam[ily], and this shit hurts like fuck." The prosecutor asked whether he got any response to that text, and Patton answered, "No."

 The prosecutor then [*17]  asked Patton whether he sent another text message to Sissac at 11:13 p.m. that night, and Patton replied, "I did." When asked what he said to Sissac in the text, Patton replied, "'Do the right thing, please, yo.'" Patton testified that he got a response from Sissac at 12:00 a.m. that stated, "You have to pray." Patton also testified that he did not see that response until 9:00 a.m. the next morning. The prosecutor asked Patton, "How did you respond to that?" Patton answered, "I said, 'No, you pray, Nigga. That's some coward ass shit. I got nothing else to say.'"

 Later in the trial, Deputy Pearce testified that he downloaded the contents of Patton's phone, the phone number of which was 564-1296. One of the contacts in Patton's phone was Meech (Sissac) with a phone number of 619-799-3642. Deputy Pearce also testified that several phone calls between Patton and Meech were listed in the incoming and outgoing call log of Patton's phone, and there were text messages to and from Meech. He further testified that he downloaded the contents of Sissac's phone that had a phone number of 619-799-3642 and contained a contact for "D" which listed Patton's phone number.

 At the close of the prosecution's [*18]  case-in-chief, the court admitted exhibit Nos. 116 and 117 into evidence without objection.

 B. Standard of Review

 "[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717.) We will not disturb the trial court's exercise of discretion except upon a showing that it "exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

 "The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1010.) A trial court's error under state law in the admission or exclusion of evidence following an exercise of discretion is properly reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. McNeal (2009) 46 Cal.4th 1183, 1203 (McNeal).) Under the Watson harmless error test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, at p. 836.)

 C. Analysis

 We need not and do not reach the merits of Sissac's claim that the court erroneously admitted evidence of text messages (discussed, ante) that he and Patton exchanged with each [*19]  other after the shooting incident because Sissac has not shown and cannot demonstrate that any such error was prejudicial. Assuming without deciding the court abused its discretion in admitting that evidence, and applying the applicable Watson harmless error test (McNeal, supra, 46 Cal.4th at p. 1203), we conclude[#x2500]in light of the strong evidence of Sissac's guilt apart from the challenged text message evidence[#x2500]that Sissac has failed to meet his burden of establishing a reasonable probability he would have achieved a more favorable result absent the admission of the text message evidence.

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