Commercial Litigation and Arbitration

Texts Authenticated by Testimony from Recipient, Content and Timing — Cellebrite Tool Is the Industry Standard to Extract Texts

 Appellant Richard Michael Kelso appeals his conviction of three counts of communicating with a minor with the intent to commit a sexual offense, two counts of committing a lewd and lascivious act on a minor, and one count of inducing a minor to engage in a lewd act. Appellant contends: (1) the court lacked territorial jurisdiction over the latter three offenses because they occurred in Oregon; (2) the court erred in admitting into evidence a recording surreptitiously made by the minor's father; (3) the court erred in failing to redact inadmissible or irrelevant matter from the recording; (4) a document containing a printout of the text messages between appellant and the minor was not properly authenticated; and (5) the sentence imposed was excessive. Finding no reversible error, we affirm.


 2. The trial court did not err in admitting the  document containing a printout of the texts  sent between appellant and J.D. during the  relevant period

 As even the defense expert acknowledged, the Cellebrite device used to extract the texts from J.D.'s cell phone was the "industry standard tool." By the time of trial, appellant's counsel had been provided a complete copy of the report generated, alleviating the majority of his and his expert's concerns about its accuracy. Moreover, Detective Velazquez was examined about her qualifications and attested to using the device hundreds of times and having cross-checked its accuracy by scrolling through J.D.'s text message screen. However, we need not rely on this evidence to support the admission of the document containing the printout of the text messages stored on J.D.'s phone -- or the texts themselves --because the prosecution met its burden of establishing that it was an authentic and accurate representation of those text messages through other means.

 All writings must be authenticated before they may be received into evidence. [*36]  (Evid. Code, 1401.) "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." (Id., 1400.)[27] "'"[L]ike any other material fact, the authenticity of a [document] may be established by circumstantial evidence."'" (People v. Valdez, supra, 201 Cal.App.4th at p. 1435; see Evid. Code, 1420 ["A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing"]; Evid. Code, 1421 ["A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing"].) Moreover, although the original is the best evidence of the contents of a writing, "[a] printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent." (Evid. Code, 1553.) The trial court's decision that a writing has been sufficiently authenticated is reviewed under an abuse [*37]  of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466.)

The document containing the printout of the texts was adequately authenticated by J.D. The prosecutor showed J.D. each text message on the printout before showing it to the jury and asked whether it was an accurate reproduction of a text he had sent to or received from appellant's cell phone. As the owner of the phone on which the texts were stored and a party to the communications, J.D.'s testimony was sufficient to authenticate the accuracy of the document's portrayal of the texts. That the texts were from appellant was supported by the content and timing of the messages, as well as the fact that they came from the number given to J.D. by appellant. Appellant was free to attempt -- as he did -- to persuade the jury that the texts were written by someone else. But the document containing the printout of the texts was sufficiently authenticated to place it before the jurors and to allow them to draw the reasonable inference that the document accurately portrayed the content of the texts between appellant and J.D. during the relevant period.

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