Instagram Photos Authenticated by Fact Username & Password Needed, Same Photos on Alleged User’s Cell, User in Same Clothes As in Photos, with Same People — Captions = Hearsay — Cellebrite Software to Download Cell

In re KB, 2015 Cal. App. LEXIS 627 (Cal. Ct. App. July 20, 2015):

On October 23, 2013, the San Francisco County District Attorney filed a petition charging appellant, age 17, with two counts of possessing firearms. (Pen. Code, § 29610.) On November 19, 2013, after a contested jurisdictional hearing, the juvenile court sustained the petition.

Appellant has appealed, claiming: (1) the evidence did not support the juvenile court's finding that he violated Penal Code section 29610; (2) the trial court erred in admitting incriminating photographs over his objection on the ground they were not properly authenticated; (3) the trial court erred in allowing a police officer to give expert testimony about the make and model of the [*2]  recovered firearms without first qualifying him as an expert; and (4) the court omitted required information about the maximum term of confinement and custody credits from the dispositional order.

In the published portion of this opinion we apply our Supreme Court's recent guidance on authentication of electronic evidence in People v. Goldsmith (2014) 59 Cal.4th 258 (Goldsmith), and conclude there was no error in admitting the photographic evidence in this case. In the unpublished portion of this opinion we reject the balance of appellant's assignments of error, except we agree with the parties that the matter must be remanded for the limited purpose of supplying the mandatory information in the dispositional order that was omitted. However, in all other respects, the judgment is affirmed.



San Francisco Police Officers Dave Johnson and Eduard Ochoa testified that they were on routine patrol on October 21, 2013. Throughout that day, Officer Ochoa scanned Instagram, a social media website, looking for postings. Officer Ochoa was the "Instagram officer" in his department and had been so for three or four years. His training and experience had taught him "how to monitor and track individuals through [*3]  Instagram."

Officer Ochoa "was familiar with appellant from prior firearm investigations." He testified, "I saw [appellant], [D.H.] and [Marquis] Mendez, all possessing a firearm at one point or another in these [Instagram] photographs. I knew [appellant] was on probation . . . . I knew Mr. M[endez] was a wanted felon and was [a] prohibited person." In the Instagram photographs appellant wore a black and white print shirt and camouflage pants, and in some of the photos, he appeared to have a firearm tucked into the waistband of his pants. Also, in some of the photos there appeared to be a curtain made of camouflage material covering a window. The officers verified that appellant and Mendez were on active probation subject to search conditions, and were prohibited from possessing any type of firearm. Mendez was also in violation of his probation. Based on the Instagram photographs showing these individuals brandishing firearms, the officers decided to perform a probation search.

Officers Ochoa and Johnson, along with other officers, went to the Westpoint Middlepoint apartment complex around 9:23 p.m. "to conduct [a] probation search for [appellant and Mendez,] who [the officers] believed to be [*4]  at that residence." The officers walked around the building and saw a rear, second-story window covered by a camouflage curtain similar to that appearing in the photographs posted on Instagram. That window was at the back of 59 Hare Street.

The officers heard voices coming from the camouflage-curtained window. Officer Johnson heard other officers knock on the front door of 59 Hare Street and announce their presence. Immediately thereafter, Officer Johnson saw D.H. peek out of the camouflage-curtained window. Several of the officers illuminated D.H.'s face with their flashlights and announced their presence. D.H. withdrew from the window. Seconds later, two handguns were thrown from the camouflage-curtained window. The officers could not identify who threw the firearms out of the window.

Officer Ochoa and other officers entered the front of 59 Hare Street. The officers detained the occupants and conducted a preliminary sweep for weapons. No firearms were found. D.H. was detained descending the stairs from the second floor. Appellant and Mendez were detained in an upstairs bedroom. They were wearing the same clothes they wore in the Instagram photographs that Officer Ochoa had viewed earlier [*5]  that evening. The officers seized the two discarded handguns, the suspects' cell phones, and the camouflage curtain. Appellant, D.H., and Mendez were arrested for possessing firearms.1

1   Mendez was an adult, and did not appear in these proceedings. Appellant and D.H., then both minors, appeared jointly at this contested hearing but with separate counsel. This appeal has been brought solely by appellant.

The handguns were transported to the police station where Officer Johnson examined them and discovered that they were both loaded. Over defense objection, Officer Johnson testified that one of the seized firearms was "a Smith [&] Wesson . . . [h]andgun," model "SW40F," and the other handgun "was a Glock 23."

Cell phones were seized from appellant and Mendez. Officer Ochoa examined Mendez's cell phone and saw that it contained what appeared to be screen shots of some of the pictures that he saw on Instagram earlier that day. Officer Ochoa took photographs of the pictures displayed on Mendez's cell phone.

Officer Steven Wood testified that after appellant and his associates were arrested, he used Cellebrite2 computer software technology to retrieve information from Mendez's cell phone. Once a Cellebrite [*6]  search is conducted, the information in the cell phone is sent to a computer. The officer then simply pushes a button, and a Cellebrite report is generated. The report lists all of the information stored in the cell phone--photographs; incoming, outgoing, and missed calls; text messages; app information; and emails.

2   Various spellings of "Cellebrite" appear in the record. We adopt the spelling that is contained in the Cellebrite report that appears of record in this matter.

The Cellebrite technology revealed, in detail, the contents of Mendez's phone and printed out that information in a 37-page report. Included in the Cellebrite report were some of the same incriminating photographs showing appellant and his associates brandishing firearms which were viewed and photographed by Officer Ochoa from the screen of Mendez's phone when appellant was arrested. At the conclusion of the evidence, over defense counsels' objection, the court admitted into evidence Officer Ochoa's photographs from the screen of Mendez's cell phone and the Cellebrite report containing the identical photographs.3

3   In this case, although the police downloaded significant amounts of data from Mendez's phone--including a contacts [*7]  list, text messages, call records, and images--the court considered only certain photographs to be relevant evidence.

Appellant did not testify and rested on the state of the evidence. After the court sustained the petition alleging two counts of violating Penal Code section 29610, a contested dispositional hearing was held. On January 19, 2014, the juvenile court committed appellant, age 18, to the custody of the chief probation officer for out-of-home placement, ordering that he complete an eight-month program at the San Francisco Juvenile Justice Center. This appeal followed.




B. Admission of Incriminating Photographs Extracted from Cell Phone

Over appellant's objection, the prosecution entered into evidence photographs showing appellant, another juvenile, D.H., and Mendez posing with two handguns. Appellant contends that the trial court erred in admitting the photographs over his objection on the ground they were not properly authenticated because "none of the subjects appearing in the images testified, nor did anyone who was present at the time the photos were taken. Accordingly, there was no witness present at [*8]  the time the images were created to establish that the [photographs] accurately depicted what they purported to depict--appellant and his co-minor, D.H., in possession of firearms."

The general principles guiding the admissibility of photographic evidence over an objection that the evidence has not been properly authenticated were recently addressed by our Supreme Court in Goldsmith, supra, 59 Cal.4th 258.4 "A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.]" (Id. at p. 267.) This foundation may--but need not be--supplied by the photographer or by a person who witnessed the event being recorded; in addition, authentication "may be supplied by other witness testimony, circumstantial evidence, content and location" and "also may be established 'by any other means provided by law' ([Evid. Code,] § 1400), including a statutory presumption. [Citation.]" (Goldsmith, at p. 268.)

4   Because Goldsmith was decided after briefing and oral arguments had been waived, on April 27, 2015, we requested and received supplemental briefs from the parties addressing this latest opinion on authentication of visual evidence.

The court in Goldsmith explained, "the proof that is necessary to [*9]  authenticate a photograph or video recording varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error. [Citation.] The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be 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. [Citation.] Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 267.)

We review challenges to a trial court's ruling on the admissibility of evidence for an abuse of discretion, and we will not disturb the trial court's ruling "'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in [*10]  a manifest miscarriage of justice.' [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 266.)

We note that the law preceding Goldsmith governing authenticating images copied from social media, i.e., Facebook, MySpace, Instagram, has not been entirely consistent.

In People v. Beckley (2010) 185 Cal.App.4th 509 (Beckley) the court considered whether a photo downloaded from MySpace had been properly authenticated. There, the girlfriend of one of the defendants testified that, when she began dating him, she insisted that he stop associating with his gang. (Id. at pp. 513-514.) To impeach her, the prosecution introduced a photo showing her flashing a gang sign. A police officer testified that he had downloaded it from the boyfriend's MySpace page. The defendants objected based on lack of authentication. (Id. at p. 514.)

The appellate court in Beckley held that the trial court erred in admitting the photo. The court stated, "'It is well settled . . . that the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission into evidence.' [Citation.] In addition, . . . authentication of a photograph 'may be provided by the aid of expert testimony. . . .' [Citation.]" (Beckley, supra, 185 Cal.App.4th at pp. 515-516.) The court then reasoned, [*11]  "Although defendants conceded that the face in the MySpace photograph was [the girlfriend]'s, the record does not contain . . . evidence sufficient to sustain a finding that it is the photograph that the prosecution claims it is, namely, an accurate depiction of [the girlfriend] actually flashing a gang sign. [The police officer] could not testify from his personal knowledge that the photograph truthfully portrayed [the girlfriend] flashing the gang sign and . . . no expert testified that the picture was not a '"composite" or "faked"' photograph. Such expert testimony is . . . critical today to prevent the admission of manipulated images . . . ." (Ibid.)

In People v. Valdez (2011) 201 Cal.App.4th 1429 (Valdez), the defendant argued for reversal of his convictions for attempted murder, assault with a firearm, and street terrorism on the ground that printouts of his MySpace social media Internet page had not been properly authenticated. (Id. at pp. 1433-1434.) The reviewing court disagreed, noting the defendant did not dispute that the MySpace page icon identifying the owner of the page displayed the defendant's face, and other material on the page pointed to the defendant as the owner of the page. (Id. at p. 1435.) In holding that the trial court did not [*12]  err, the appellate court noted that particular items on the page, including a photograph of the defendant forming a gang signal with his hand, met the threshold for the jury to determine authenticity. (Id. at p. 1436.) The court observed, "The contents of a document may authenticate it. [Citation.]" (Ibid.) While the defendant was free to argue otherwise to the jury, a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him. (Ibid.)

In finding the photo in that case was properly authenticated, the Valdez court distinguished Beckley because there was "evidence of the password requirement for posting and deleting content" and because of the "pervasive consistency" of the MySpace content, "filled with personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests. [Citation.]" (Valdez, supra, 201 Cal.App.4th at p. 1436.)

Respondent claims this case is like Valdez, citing the password-protected nature of Instagram and the "pervasive consistency" of the content of the disputed photographs. On the other hand, appellant relies heavily on Beckley to argue [*13]  that, "[l]acking witnesses to testify as to personal knowledge that the images accurately depicted what they purported to depict and lacking expert testimony to support a finding that he photographic exhibits were not altered or faked, the evidence as to authenticity in this case was lacking . . . ."

To the extent Beckley's language can be read as requiring a conventional evidentiary foundation to show the authenticity of photographic images appearing online, i.e., testimony of the person who actually created and uploaded the image, or testimony from an expert witness that the image has not been altered, we cannot endorse it. Such an analysis also appears to be inconsistent with the most recent language in Goldsmith which explained that in authenticating photographic evidence, the evidentiary foundation "may--but need not be--supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.]" In addition, authentication "may be supplied by other witness testimony, circumstantial evidence, content and location" and "also may be established 'by any other means provided by law' ([Evid. Code,] § 1400), including a statutory presumption. [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 268.)5

5   In reaching our result, [*14]  we do not rely on statutory presumptions of authentication, which is the thrust of appellant's supplemental brief distinguishing the analysis in Goldsmith from the facts of our case.

Furthermore, reading Beckley as equating authentication with proving genuineness would ignore a fundamental principal underlying authentication emphasized in Goldsmith. In making the initial authenticity determination, the court need only conclude that a prima facie showing has been made that the photograph is an accurate representation of what it purports to depict. The ultimate determination of the authenticity of the evidence is for the trier of fact, who must consider any rebuttal evidence and balance it against the authenticating evidence in order to arrive at a final determination on whether the photograph, in fact, is authentic. As our Supreme Court explained in Goldsmith, "[t]he fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (Goldsmith, supra, 59 Cal.4th at p. 267.)

Measured by these principles, we conclude the incriminating photographs in the instant case were properly authenticated. The foundation for admitting the photographs into evidence [*15]  was provided by the investigating officers.

As noted, all of the photographic exhibits were obtained from the cell phone seized from Mendez. Officer Woods used the Cellebrite program to extract images on Mendez's cell phone included screenshots of the photographs which had been posted on Instagram, showing appellant, D.H., and Mendez posing with two handguns. The Cellebrite report indicated the photographs were created at 4:48 p.m. on October 21, 2013, approximately five hours before appellant was arrested.

Officer Ochoa testified he routinely monitored appellant's associations and activities by examining an Instagram account associated with appellant. As was explained at trial, Instagram is a web-based photograph sharing platform through which users share user-generated content. Among other things, it provides an application that allows users to upload photos, and share them with others. Officer Ochoa explained that when Instagram users create an account, they are assigned a username and password. Appellant used the screen name "40glock_"

Officer Ochoa also testified that when he viewed appellant's own Instagram account on October 21, 2013, several images appeared of appellant and his [*16]  cohorts, displaying firearms.6 The photographs taken from Mendez's cell phone were the same as those observed by Officer Ochoa on Instagram earlier in the day.

6   The trial court ordered that the captions associated with the photographs be redacted as hearsay.

Additionally, when appellant was arrested, he was wearing the same clothes and was in the same location depicted in the photographs. He was arrested along with several of the same individuals who appear with him in the photographs.

All of these factors point to the authenticity and genuineness of the photographs. We also note there was an absence of any evidence that the photos or those screen shots taken from Mendez's cell phone were not accurate reproductions of the pictures uploaded onto appellant's Instagram account and stored in the digital medium on Mendez's cell phone. Based on all of these factors, the trial court was authorized to conclude the prosecution sufficiently authenticated the incriminating photographs.

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