Text Messages: Offer of Gun to Defendant = Non-Hearsay Verbal Act; Picture Retrieved from Cell Sufficiently Authenticated by Fact It Showed Same Make and Model Offered to & Recovered from Him — Photo Is Not Hearsay

People v. Mota, 2015 Cal. App. Unpub. LEXIS 7216 (Cal. Ct. App. Oct. 8, 2015):

Jose J. Mota and Karen Garcia were convicted of possession of a firearm after police observed Mota pass the gun to Garcia on a street in Los Angeles and recovered from Mota's cell phone a photograph of the gun. On appeal, Mota contends the photograph was inadmissible for several reasons and the prosecution failed to establish in which jurisdiction the offense took place. We affirm the judgment but remand for [*2]  resentencing of Mota.

BACKGROUND

On April 27, 2013, Los Angeles Police Officers Francisco Diaz and David Lopez observed Jose Mota and Karen Garcia walking on Crawford Street approaching 36th Street in Los Angeles. When Mota saw them, he removed a handgun from his waistband and put it in Garcia's purse. The officers stopped and searched them, recovering the gun from Garcia's purse and, ultimately, a cell phone from Mota that had a text message with a photograph of a gun, with accompanying text that read, "Chubby .45 for 550. Holds 8 L.A." The message had been sent by someone known as "Chubby" to Mota's phone two days earlier.

Mota was charged with possession of a firearm in violation of Penal Code section 29820, subdivision (b) [former juvenile offender may not possess a firearm until the age of 30 years], and Mota and Garcia were both charged with carrying a concealed firearm (ibid., § 25400, subd. (a)(2)) and carrying a loaded unregistered handgun on a public street in an incorporated city (ibid., § 25850, subd. (a)).1 It was further alleged that Mota had suffered two serious felony juvenile adjudications in 2000. (Ibid., §§ 667, subds. (b)-(j), 1170.12.) A jury found defendants guilty and all allegations true, and after a bifurcated bench trial the court found Mota had been adjudicated in juvenile [*3]  proceedings to have committed robbery and attempted robbery.

1   Undesignated statutory references will be to the Penal Code.

Mota was sentenced to six years in prison, comprising the high term of three years on the possession count, doubled for the prior "strike" conviction, plus the same sentence for each of the other counts, stayed pursuant to section 654. Garcia was placed on three years formal probation and ordered to serve 365 days in county jail. They both appealed.

DISCUSSION

Mota contends the gun photograph on his phone was inadmissible for several reasons and the court committed a sentencing error. Both defendants contend insufficient evidence supported their conviction for possession of an unregistered handgun in city limits.

A. Cell Phone Evidence--Authentication

At trial, the prosecution offered into evidence (1) Mota's cell phone, with the screen depicting the text message and photograph of a gun, and (2) a photograph of that screenshot (collectively "the photographs"). Police testified that metadata accompanying the message indicated it had been sent two days before defendants were arrested. Police further testified that the gun depicted in the photographs "could be" the same as that recovered [*4]  from Garcia's purse, in that both were the same make and model and had the same rubber grips, but a definitive identification could not be made because the serial number was not visible. Mota argues the trial court abused its discretion when it admitted the photographs into evidence with insufficient authentication. We disagree.

A photograph must be authenticated before being admitted into evidence. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) After a preliminary showing of relevance, "the proof that is necessary to 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 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 [*5]  regarding authenticity goes to the document's weight as evidence, not its admissibility.'" (Id. at p. 267.) "A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted." (Id. at pp. 267-268.) The foundation "may be supplied by . . . witness testimony, circumstantial evidence, content and location." (Id. at p. 268.)

Mota argues the photographs were inadmissible because they were not "authenticated" in such a manner as would have proven the gun they depicted was the same gun recovered from Garcia. The argument is without merit. The photograph on Mota's cell phone depicted a gun that was the same make and model and had the same rubber grips as the gun recovered from Garcia's purse. The photograph was accompanied by a text message indicating someone had offered the gun for sale two days earlier. This evidence tended in reason to show that Mota was offered and had purchased the gun, and therefore possessed it. That the serial number was not visible left room for the equally reasonable counter-inference that the guns were not the same. But "'[t]he fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not [*6]  its admissibility.'" (People v. Goldsmith, supra, 59 Cal.4th at p. 267.) Authentication need not definitively establish the ultimate fact in support of which the evidence is offered, it need only give rise to a reasonable inference that the evidence is what it purports to be.

Mota argues the text message accompanying the photograph was inadmissible because the prosecution failed to "authenticate" it by proving when it was received. Although the metadata indicated the message was sent two days prior to the arrest, Mota argues, no evidence indicated Mota received it early enough to afford him time to purchase the gun before his arrest. The argument is without merit because the timing of the text message is irrelevant to its authenticity. To authenticate a document the prosecution need establish only that it is what it purports to be; the prosecution need not establish when the defendant first became aware of it.

The evidentiary impact of the text message was to demonstrate Mota received an offer to purchase a handgun in sufficient time to make the purchase before he was arrested. The time the message was sent--two days prior to Mota's arrest--tends in reason to support the inference that he received it two days before the arrest, and [*7]  therefore had enough time to make the purchase. Although a telecommunications carrier may on occasion delay or lose text messages, in normal practice they arrive within seconds or minutes of having been sent. In any event, issues regarding the reliability of computer software "may be developed on cross-examination and should not affect the admissibility of the [computer record] itself." [Citation.]'" (People v. Martinez (2000) 22 Cal.4th 106, 132.) Any counter-inference of untimeliness would therefore go to the weight of the evidence for its ultimate purpose, not its authenticity.

B. Cell Phone Evidence--Hearsay

Mota contends the photographs and text message were inadmissible hearsay. The argument is without merit.

"'Hearsay evidence' is evidence of 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." (Evid. Code, § 1200, subd. (a).) "[D]ocuments containing operative facts, such as the words forming an agreement, are not hearsay." (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316.) Evidence of a statement "made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy" is not made inadmissible by the hearsay rule. (Evid. Code, § 1223, subd. (a).) A photograph is not hearsay, [*8]  but rather "demonstrative evidence, depicting what the camera sees." (People v. Cooper (2007) 148 Cal.App.4th 731, 746.)

"Chubby's" offer to sell a handgun to Mota was an operative fact--a contractual offer--made in furtherance of Chubby's participation in Mota's quest to violate section 29820. It was therefore either not hearsay or, even if it was hearsay, not inadmissible.

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