Twitter Authentication — Tweets Downloaded by Non-Testifying, Non-Certifying Third Party Not Sufficiently Authenticated; Nor Was Their Contents

People v. Mosley, 2015 Cal. App. Unpub. LEXIS 7470 (Cal. Ct. App. Oct. 20, 2015):

In a fourth amended information, codefendants and appellants Lavelle Mosley (Mosley) and Terion Lamarr Collins (Collins) (collectively appellants) were charged with five counts of second degree robbery. (Pen. Code, § 211; counts 1-4, 7.) As to all counts, it was alleged that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C), that a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1), that Mosley served a prior prison term within the meaning of section 667.5, subdivision (b), and that Collins [*2]  suffered a prior conviction of a serious or violent felony pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). As to counts 1 to 4, it was further alleged that Collins suffered a prior serious felony conviction pursuant to section 667, subdivision (a)(1).

The jury found appellants guilty of counts 1 to 4, and guilty of the lesser included offense of attempted second degree robbery on count 7. The jury found true the firearm and gang allegations. Appellants admitted the prior conviction allegations. Mosley was sentenced to 33 years in state prison. Collins was sentenced to 45 years eight months in state prison.

Appellants raise several contentions of error relating to the firearm and gang enhancements, the prosecutor's conduct, and the admission of certain evidence. We affirm.

***

Gang Evidence

Los [*10]  Angeles Police Department Officer Robert Smith testified as the prosecution's gang expert on the Rollin' 40's gang. In addition to his training and work experience in gangs, Officer Smith, who grew up in South Central Los Angeles, also had personal experience with gangs.

The territory of the Rollin' 40's gang consists of Figueroa Street to the east, Crenshaw Boulevard to the west, 52nd Street to the south, and Martin Luther King Jr. Boulevard to the north. Budlong is one of the streets within the gang's territory. Gang territories are marked by graffiti and gangs protect their territories by committing assaults and even murders of people who disrespect them by being in their territory. Having a territory is important to a gang because it permits the gang to sell drugs within the territory to make money. Having a "better" reputation is also important to a gang because it leads to more respect among other gangs. Being on the news for crimes committed is considered "good advertisement" for the gang and "helps with their reputation as an active gang." Gangs also enhance their reputation by putting up graffiti in a rival gang's territory and using social media to brag about their crimes. [*11]  Instilling fear in the community is important to a gang because it allows the gang to commit crimes in their territory without people in the neighborhood reporting the crimes to police.

The Rollin' 40's gang has been around since the late 1960's or early 1970's. On September 12, 2012, there were approximately 1,000 to 1,200 members, and about 650 to 700 documented members. Gang members are documented when they admit their membership, have gang tattoos, associate with known gang members, or commit crimes with known gang members. Gang members are also documented from photographs taken with other gang members or where they are shown making gang hand signs. Common tattoos for Rollin' 40's gang members include the four-leaf clover, "F" for forties, "F" with the marlin from the Florida Marlins baseball team, "RFC" for Rollin' 40's Crip, and "XL," the roman numeral for 40.

The primary activities of the Rollin' 40's gang include murder, attempted murder, robbery, assaults, weapon-related crimes, criminal threats, and vandalism. Predicate offenses described by Officer Smith included Rollin' 40's gang members who were convicted of robbery with gang and firearm allegations, and attempted murder [*12]  with gang, great bodily injury, and firearm allegations.

In early 2012, Officer Smith was driving down 43rd Street and observed appellants standing near each other. Recognizing Mosley from a prior contact, Officer Smith approached. When Officer Smith attempted to speak with Collins, Collins ignored him and left. After speaking with Mosley, Officer Smith returned to his car and was told by his partner that Collins was a documented Rollin' 40's gang member. Officer Smith also observed Collins's various Rollin' 40's tattoos at the preliminary hearing and reviewed Collins's field identification cards. Officer Smith opined that Collins was a Rollin' 40's member with the moniker "T.K." for "Tiny Klown."

Officer Smith opined that Mosley was a Rollin' 40's member based on his prior contact with Mosley, Mosley's admissions to other officers, Mosley's numerous Rollin' 40's tattoos, and Mosley's field identification cards. Mosley was also named in the gang injunction against the Rollin' 40's.

Officer Smith opined that Ely was an associate of the Rollin'40's. While there was no documentation regarding his membership and he did not have any Rollin' 40's tattoos, he was arrested for committing a crime [*13]  with Rollin' 40's documented members.

A field identification card from 2007 indicated that appellants were together when they were contacted at that time. A photograph of appellants found on a cell phone showed them together on West 43rd Street, an area heavily populated by Rollin' 40's gang members. Another photograph found on a cell phone showed appellants with other Rollin' 40's gang members, and showed Mosley making a gang hand sign and Collins pointing to another man making a gang hand sign.

Given a hypothetical scenario based on the facts of this case, Officer Smith opined that the bank robbery was committed for the benefit of and in association with the Rollin' 40's gang. Rollin' 40's members committed the crime together and threw money in their neighborhood "to gain favor amongst their fellow community members and gang members." Officer Smith's opinion was based in part on two Twitter tweets, one from "Piranha" and the other from "Neisha." Piranha's tweet said, "Free my Loc Tiny Hoodsta Foot." It also said, "He couldn't keep the money, so he gave it to his hood" followed by "Real hood shit" and "Instagram." According to Officer Smith, Tiny Hoodsta Foot is Mosley's moniker. Neisha's [*14]  tweet said, "Free my brother Hoodsta Foot. He did the most G'd bank robbery since set it off. Laugh out loud. The homie knew he couldn't." The tweet was posted on Instagram and Twitter with a photograph of Mosley being taken into custody at the end of the pursuit and another photograph of Mosley making a Rollin' 40's hand sign.

Collins's 2010 Bank Robbery

On March 5, 2010, at about 12:30 p.m., Jane Lee was working at United Commercial Bank in Rosemead when robbers entered the bank. A Black man wearing a hoodie walked up to her, told her not to move and to put up her hands. He appeared to have a gun in his pocket. After the robbers finished, they ran out of the bank. Still photographs taken from a videotape of the robbery were shown to the jury.

Collins and another man were eventually apprehended nearby hiding in a bush. They both had tattoos of a "4" and a "0" on their triceps, and Collins admitted being a Rollin' 40's member. When Collins was searched, about $800 was found in his pocket.

Collins was subsequently charged with one count of robbery; there were no firearm or gang allegations. The trial court here took judicial notice that Collins entered a no contest plea to second degree [*15]  robbery on January 12, 2012, and that Collins was advised that such a plea would be treated the same as a guilty plea.

The parties stipulated that Collins has tattoos "including a four on one tricep and a zero on the other tricep, and that he had these tattoos on March 5, 2010."

***

V. Twitter Evidence

Mosley contends the trial court erred [*37]  in admitting People's Exhibits 121 and 122, two Twitter tweets with comments about the robbery accompanied by his photographs. He asserts several reasons why the exhibits were inadmissible, including that they lacked proper foundation, were irrelevant, constituted late discovery and hearsay, and argues that their admission violated his constitutional rights to confrontation, due process, and a fair trial. We do not address all of Mosley's arguments because we find that the exhibits were inadmissible due to lack of a proper foundation. But we nevertheless conclude that the error in admitting them was harmless.

A. Relevant Background

On cross-examination, Collins's counsel asked the gang expert, Officer Smith, whether it was true that gang members yelled out their gang name when committing a violent crime for the gang's benefit so that the community would know who committed the crime. Officer Smith said it was not true. Counsel then asked about "occasions where gang members try to make it clear that they are committing a crime in the name of the gang." Officer Smith explained that gangs sometimes put up graffiti in a rival gang's territory or tag their gang name on the rival gang's wall, [*38]  or commit certain crimes, such as assaults and robberies, to make themselves known. He added that gangs do not always let the community know that they committed the crime.

On redirect examination, the prosecutor asked whether gang members used "electronic media" to establish their credibility after committing crimes. Officer Smith stated that "some people would post things, admitting to doing different types of crimes." He explained that such postings related to gang members' use of graffiti or yelling out their gang name during a crime: "It enhances their reputation. You know, it's almost like advertisement, you know, just the same way as graffiti being put up on a wall to claim territory or to disrespect a rival gang. You know, it enhances, you know, that they're brave enough to go into rival territory and put something on the rival's wall. And then also on social media, to admit, you know, this is me who did it. It's almost like a braggadocious type of attitude."

Collins's counsel objected on relevance grounds stating, "there's none of this in this case." When the prosecutor stated there was some relevance, the trial court stated it would reserve its ruling. The prosecutor resumed [*39]  the examination, asking Officer Smith whether he became aware of any Facebook postings after the robbery. He responded that he had seen "several postings."

Collins's counsel objected and asked for a sidebar. He argued the evidence was irrelevant because Collins, who was in custody, had nothing to do with the postings. Mosley's counsel joined. The prosecutor explained that she did not use the tweets during her direct examination of Officer Smith because appellants, who were in custody, could not have posted them. But since Collins's counsel had questioned how "they didn't yell out any gang names" during his cross-examination of Officer Smith, the prosecutor argued that the tweets gave "them the street credit that [Collins's counsel] was referring to."

After the trial court confirmed with the prosecutor that the evidence was being admitted to support Officer Smith's expert opinion about how the instant crime benefited the gang and not for its truth, Collins's counsel further objected and moved for a mistrial. Mosley's counsel joined. The court denied the mistrial motion and found the evidence admissible.

When redirect examination continued, Officer Smith testified that he had used two tweets [*40]  from "Piranha" and "Neisha" as the basis for his expert opinion. He described and explained the content of the two tweets and the photographs of Mosley, two of which showed him being taken into custody. Officer Smith explained that he received the printouts of the tweets from Detective Cannis.

Later, outside the presence of the jury, Mosley's counsel moved for a mistrial on the grounds that the tweets were hearsay and lacked foundation. The trial court reserved its ruling. Collins's counsel also moved for a mistrial, adding that Officer Smith's testimony was "far more prejudicial" than when he had read the tweets and that he needed to cross-examine the persons who posted the tweets. The trial court found the tweets were not "so prejudicial" while the "probative value is evident."

Detective Cannis was cross-examined on the tweets by Mosley's counsel. He testified that he received the printouts of the two tweets from Detective Kolowski, who sat next to him and had been reviewing various social media for items related to the robbery shortly after it occurred. When Detective Kolowski found the tweets, Detective Cannis saw them on her computer screen and asked her to print them out. He placed [*41]  the printouts in his file. On recross-examination, Detective Cannis testified that the tweets were given to the prosecutor's office, along with a group of other photographs relating to the Rollin' 40's, sometime around the preliminary hearing.

Collins's counsel made another mistrial motion, arguing that he never received the tweets in discovery. Mosley's counsel joined. The prosecutor responded that she gave all copies of the gang photographs to the defense and that she did not intend to use the tweets until Collins's counsel cross-examined the expert about the lack of yelling out the gang name. Collins's counsel countered that his questioning did not open the door, and that his mistrial motion was based on the lack of discovery and the trial court's admitting the tweets into evidence. Appellants' counsel admitted that they had not conducted any investigation regarding the tweets since receiving them. The court agreed that the tweets were untimely and stated it would consider instructing the jury with CALCRIM No. 306. The court admitted People's Exhibits 121 and 122 into evidence over objections by the defense.

B. Analysis

A writing, including photographs, must be authenticated before it may be admitted [*42]  in evidence. (Evid. Code, §§ 250, 1401; People v. Goldsmith (2014) 59 Cal.4th 258, 266.) "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.) A writing's proponent meets his burden of authentication "'when sufficient evidence has been produced to sustain a finding that the document is what it purports to be. [Citation.]'" (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.) There is no restriction on the means by which a writing may be authenticated. (Ibid.; Evid. Code, § 1410.)

We agree with Mosley that the twitter evidence was not authenticated. The person who found the evidence on the Internet, Detective Kolowski, did not testify. Thus, there was no evidence as to how she located the tweets. There was also insufficient proof of the source of the information in the tweets. No one identified who the alleged authors of the tweets--Piranha and Neisha--were or whether they were members of the community, the Rollin' 40's gang, related to Mosley or people simply out to implicate him in criminal activity. There was no indication whether the tweets generated any reader responses. There was also no testimony, expert or otherwise, [*43]  that the information pulled from the Internet was not a composite or faked. As stated in People v. Beckley (2010) 185 Cal.App.4th 509, 515-516, "'[a]nyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time.'"

We nevertheless find that the error in admitting the unauthenticated evidence was harmless under both the federal and state standards (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836). Aside from the Twitter evidence, other testimony and evidence supporting the gang enhancement allegations was sufficient for the jury to find the allegations to be true. Officer Smith opined that the robbery was committed for the benefit of and in association with the Rollin' 40's gang because Rollin' 40's members committed the crime together and the stolen money was thrown in the gang's territory "to gain favor amongst their fellow community members and gang members." Other officers testified regarding the chaotic situation with cars stopped on the streets and "hundreds of people" running to where the pursuit had ended. One officer described [*44]  it as "bedlam," with "people that live in the area coming out of their residences and from cars and begin running around." Another officer saw "literally hundreds of people running in the streets in their underwear, in their socks, no shirts on, in pajamas, I saw it all." A 47-minute video of the media coverage of the pursuit and the arrest was played for the jury.

Additionally, the trial court instructed the jury with CALCRIM No. 360: "Robert Smith testified that in reaching his conclusions as an expert witness, he considered statements made by others. I am referring only to the statements from other peace officers, members of the community, and information contained in written records and reports. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statement is true." The jury was also instructed with CALCRIM No. 332 on evaluating expert witness testimony, in part as follows: "You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide . . . consider . . . the reasons the expert gave for any opinion, and the facts or [*45]  information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." It is presumed the jury followed the instructions where there is no indication to the contrary. (People v. Gray (2005) 37 Cal.4th 168, 217.) Indeed, the jury's acquittal of Ely on all counts demonstrates that the jury followed the instructions and applied them to each defendant, rejecting Officer Smith's opinion as to Ely.

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