Email [Text] Evidence: Request or Proposal ≠ Hearsay Because It Doesn’t Assert the Truth of Any Fact — Photo of Email Must Be Authenticated As Photo (Fair & Accurate) and Writing (Circumstantial Evid., Including Contents)

People v. Dodge, 2017 Cal. App. Unpub. LEXIS 8503, 2017 WL 6350073 (Cal. Ct. App. Dec. 13, 2017):

A jury convicted defendant Aaron Dodge of several drug offenses and acquitted him of several others. The jury found him guilty of possession for sale of LSD (Health & Saf. Code, § 11378; unspecified statutory references are to this code); transportation for sale of LSD (§ 11379); and possession of hydrocodone (§ 11350).1 He contends the trial court erred by admitting into evidence a photograph of an e-mail found on his cell phone, and by admitting evidence that he had pills in his possession which police initially believed were the controlled substance Ecstasy, but later determined were not. Finding no error, we will affirm the judgment.

I. BACKGROUND

Defendant was charged with possessing drugs for sale after a California Highway Patrol Officer found marijuana, hydrocodone pills, and LSD in his car. When the officer noticed the smell of marijuana during a traffic stop, he asked defendant for consent to search a backpack in the backseat. Inside the backpack was a total of 14 ounces of marijuana separated into multiple plastic bags, a container with yellow pills and peach-colored pills, a vial of liquid, a digital scale, and [*2]  over $8,000 in cash. The officer also found two containers of concentrated cannabis in the trunk. Defendant was arrested, and police seized his cell phone as evidence during the booking process.

A criminalist visually identified the yellow pills as hydrocodone, and chemically tested the liquid in the vial which showed that it contained an unknown quantity of LSD. The criminalist also tested the peach-colored pills, which the arresting officer believed to be the controlled substance known as Ecstasy. The test revealed that the pills were not Ecstasy and did not contain any substance prohibited by California law.

After obtaining a search warrant, a police officer examined defendant's cell phone and found three text messages and an e-mail he believed indicated defendant was engaged in the sale of drugs. One of the text messages read "Aaron, do you have anything tasty on deck?", which the officer (who was qualified as a drug sales expert) testified was an inquiry about what kind of narcotics defendant had available. Another read, "'Hey, man. Did you get any K?'" The officer testified that "K" is a slang term for the controlled substance ketamine. The third message was, "Hey, man. I'm going [*3]  to be heading down there in 10 days. I was wondering if I could order a hondo of the babes." The officer recognized that to be a request for either $100 worth of pills, or one hundred pills. The prosecution also introduced into evidence a photograph of an e-mail displayed on a cell phone screen. The officer who inspected defendant's phone after it was seized identified the photograph as accurately depicting an e-mail he saw during the inspection. The e-mail read, "'Just let me know when it's best for you to hook up today and where you want me to go. Looking for a B of C and to get with your girl Molly if she's around. And if you've seen Leonard, bring him along, too.'" The officer testified that "B of C" was slang for "bit of coke," that "Molly" was slang for ecstasy, and "Leonard" was slang for LSD. In the opinion of another officer qualified as an expert in drug sales, based on the presence of multiple drugs, the large amount of cash, the scale, and the text messages and e-mail, defendant's purpose for having the drugs was to sell them.

Defendant presented evidence that he was a qualified patient under the Compassionate Use Act of 1996 (§ 11362.5) and therefore not subject to criminal liability [*4]  for possessing marijuana. He argued that the marijuana found in his car was possessed only in connection with his statutory rights as a qualified patient, and that the communications on his phone, the cash, and the scale were all related to his authorized possession of marijuana. He also argued that the prosecution did not prove he possessed a usable amount of LSD, since there was no evidence of the precise quantity of the substance contained in the vial.

The jury acquitted defendant of all marijuana-related charges, but convicted him of possessing LSD for sale (§11378), transporting LSD for sale (§ 11379), and possession of hydrocodone (§ 11350). The trial court granted defendant probation with conditions that included a six-month county jail term.

II. DISCUSSION

Defendant contends the trial court made two evidentiary errors during the trial: admitting the photograph of the e-mail from his phone, and admitting evidence that the officer who arrested him believed the peach-colored pills in his backpack were Ecstasy. We review a trial court's decision to admit evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717, 94 Cal. Rptr. 2d 396, 996 P.2d 46.) An abuse of discretion is shown only where the decision is outside the confines of what is allowed by the applicable [*5]  principles of law. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228, 72 Cal. Rptr. 3d 153.)

A. No Abuse of Discretion in Admitting the Photograph of An E-mail

Defendant argues that the court erred in admitting the photograph of an e-mail found on his cell phone, which asked about the best time "to hook up today," and advised, in slang terms, that the sender was looking for a bit of cocaine, some Ecstasy, and LSD. Defendant asserts the e-mail was not admissible because it is hearsay not subject to any exception, it was not properly authenticated, and there was inadequate foundational evidence for its admission.

1. The E-mail Is Not Hearsay

Hearsay—a statement made by someone other than a testifying witness that is offered to prove its truth—is generally inadmissible. (Evid. Code, § 1200.) The purpose of the hearsay rule is to exclude statements made when the declarant was not under oath and not subject to cross-examination, because the trier of fact is unable to properly gauge the veracity of such statements. (People v. Cudjo (1993) 6 Cal.4th 585, 608, 25 Cal. Rptr. 2d 390, 863 P.2d 635.) But concerns about whether a declarant was telling the truth are not implicated when the only relevance of the statement is the mere fact that it was made. Some statements are considered "'verbal conduct,'" meaning they are neither true nor false, and therefore cannot [*6]  be hearsay. (People v. Cowan (2010) 50 Cal.4th 401, 472, 113 Cal. Rptr. 3d 850, 236 P.3d 1074.) A proposal to perform an act falls within the category of verbal conduct, because a statement offering to do something cannot be true or false. (Ibid. [defendant's statement offering to "'come down right now'" and talk to police was not hearsay].) Similarly, a question or request has no inherent truth or falsity, and is not hearsay. (People v. Jurado (2006) 38 Cal.4th 72, 117, 41 Cal. Rptr. 3d 319, 131 P.3d 400 (Jurado).)

In Jurado, the declarant's statement was a request that a friend get her a "gat" (a slang term for a gun), because she had a problem she needed to take care of. The portion of the statement where the declarant asked for a gun was not hearsay because such a request does not assert the truth of any fact. (Jurado, supra, 38 Cal.4th at p. 117.) We find the content of the e-mail in this case, requesting a bit of coke, "Molly," and "Leonard," functionally equivalent to the request for a "gat" in Jurado. The relevance of the request for drugs was the fact that it was made in the first place (and, of course, that it was found on defendant's phone). The request itself has no underlying truth, so the hearsay rule does not bar its admission.

Defendant argues that Jurado is not controlling because the court found the statement in that case admissible under the adoptive admission [*7]  exception to the hearsay rule (Evid. Code, § 1221), and that exception does not apply here. But the portion of Jurado cited by defendant is the court's discussion of a different statement—"'[w]e took care of the problem and we dumped the body'"—that was hearsay but nevertheless admissible as an adoptive admission. (Jurado, supra, 38 Cal.4th at pp. 116-117.) The statement we have analogized to the e-mail request in this case was determined not to be hearsay at all. (Id. at p. 117 ["The request for the gun, by itself, was not hearsay, however, because an out-of-court statement is hearsay only when it is 'offered to prove the truth of the matter stated.'"].)

Defendant cites People v. Morgan (2005) 125 Cal.App.4th 935, 945, 23 Cal. Rptr. 3d 224, which holds that evidence of a request to buy drugs (in that case, made over the telephone) is admissible over a hearsay objection. Departing from a line of cases that viewed such requests as verbal conduct and therefore not hearsay, the Morgan court engaged in a different analysis: it determined that a request for drugs contains an "implied assertion" and therefore is hearsay—but is nonetheless admissible on the theory that a request has increased reliability because it involves conduct, and is not merely an assertion of a fact. (Id. at p. 944 ["To the extent conduct (here a phone call) rather than [*8]  simply words are involved, the implied assertion is more reliable."].) Morgan does not help defendant, given that a request for drugs made by an unidentified third party was ultimately found to be admissible, even if under a different rationale than we follow here. And we decline to adopt Morgan's reasoning in any event because it was decided before Jurado, where the California Supreme Court made clear that "a request, by itself, does not assert the truth of any fact," and is not hearsay. (Jurado, supra, 38 Cal.4th at p. 117.)

Defendant also argues that since the e-mail was referred to by a prosecution expert witness as part of the basis for his opinion that defendant possessed drugs for sale, it is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665, 686, 204 Cal. Rptr. 3d 102, 374 P.3d 320 (Sanchez) [an expert witness may not relate case-specific hearsay statements to the jury as support for an opinion].) But the Sanchez rule only applies to statements that are hearsay. Since the e-mail does not contain hearsay, Sanchez did not preclude the expert from testifying as to its content.

2. The Photograph of the E-mail Was Adequately Authenticated

Defendant maintains that the photograph of the e-mail should not have been admitted because it was not properly authenticated. He argues that there was [*9]  no evidence of who took the photograph nor evidence of who sent the e-mail it depicted, so the jury should not have been allowed to consider it. Because the evidence in question is a photograph of a writing, determining whether it was properly authenticated presents a twofold inquiry: we must look to both the requirements for authenticating a photograph and the requirements for authenticating a writing.

A photograph is authenticated by showing it is a fair and accurate representation of what it depicts. (People v. Goldsmith (2014) 59 Cal.4th 258, 267-268, 172 Cal. Rptr. 3d 637, 326 P.3d 239 (Goldsmith).) The facts necessary to authenticate the photograph may be supplied by the person who took it, but are not required to be. (Id. at p. 268.) Here, the police officer who examined defendant's cell phone after it was seized testified that although he could not recall taking the photograph, he recognized it as accurately depicting an e-mail that he saw on the phone. The photograph was therefore adequately authenticated.

"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 can be authenticated [*10]  by circumstantial evidence, and by its contents. (People v. Skiles (2011) 51 Cal.4th 1178, 1187, 126 Cal. Rptr. 3d 456, 253 P.3d 546.) "'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.'" (Goldsmith, supra, 59 Cal.4th at p. 267.) The e-mail was adequately authenticated because the prosecution claimed it was an e-mail found on defendant's phone, and a witness testified that the photograph depicted an e-mail he saw on that phone. The facts were therefore sufficient to support a finding the evidence is what the proponent claimed it to be. We might reach a different conclusion if, for instance, the prosecution asserted the e-mail was sent by a particular person. In that situation, authentication would require evidence that the e-mail account from which the message originated was associated with the purported sender. But here, the relevance of the e-mail does not depend on the identity of the sender. The fact that an e-mail inquiring about various drugs was on defendant's phone is probative evidence he was involved in the sale of drugs, regardless of who sent it.

We acknowledge there was evidence from which the jury could have concluded [*11]  that the e-mail depicted in the photograph did not come from defendant's phone. An officer who conducted a forensic analysis of the phone testified that he extracted all the data contained on the phone, and he did not recover any e-mails. Further, no explanation was provided regarding why the e-mail was produced in a different format (a photograph taken of the phone's screen displaying the e-mail) from the rest of the data that was extracted from the phone's memory; and no one remembered when the photograph was taken or who took it. But the conflicting inferences that can be drawn regarding the e-mail go its weight, not its admissibility. (Goldsmith, supra, 59 Cal.4th at p. 267.) The trial court did not err in determining the photograph of the e-mail was adequately authenticated and allowing the jury to decide how much weight to give the evidence.

3. There Was Adequate Foundation for the Photograph of the E-mail

Defendant's argument that there was inadequate foundational evidence to admit the photograph of the e-mail overlaps with the argument he makes regarding authentication. "Foundation" for evidence means a preliminary fact necessary to make the evidence admissible. For a writing to be admissible, its authenticity must [*12]  be determined by the trial court as a preliminary fact. (Evid. Code, § 403, subd. (a)(3); People v. Landry (2016) 2 Cal.5th 52, 87, 211 Cal. Rptr. 3d 160, 385 P.3d 327.) A court should exclude the evidence only if the showing on the preliminary fact is too weak to support a favorable determination by the jury. (People v. Lucas (1995) 12 Cal.4th 415, 466, 48 Cal. Rptr. 2d 525, 907 P.2d 373.) As previously discussed, while the evidence regarding the e-mail's source may have given rise to conflicting inferences, it was not too weak to support a favorable determination by the jury. The trial court therefore did not err in admitting it.

B. No Abuse of Discretion in Admitting Evidence That Police Initially Believed Defendant Possessed Ecstasy

Defendant contends the trial court erred by admitting evidence that the arresting officer initially believed the peach-colored pills in the backpack—later determined not to be a controlled substance—were Ecstasy.2 He asserts that since he was not charged with any offense related to possessing those pills, the evidence was not relevant.

Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is that which has a tendency to prove or disprove a fact of consequence to the action. (Id., § 210.) The evidence that defendant contends was inadmissible is (1) a portion of a photograph depicting the contents of his backpack that showed the peach-colored [*13]  pills; (2) testimony that the arresting officer believed the pills were Ecstasy; and (3) testimony that defendant admitted to the arresting officer he had Ecstasy. But as the Attorney General points out, a prosecution expert testified that possession of different types of drugs indicates the drugs are likely for sale, and defendant's admission to the officer at the time of arrest shows defendant thought the pills were Ecstasy. Given the expert testimony that having multiple substances is indicative of possession for sale, defendant's subjective belief, coupled with his simultaneous possession of other drugs, evidences an intent to possess multiple types of drugs and was relevant to prove his intent to sell them.

A trial court need not sanitize the presentation of evidence to such an extent that only information strictly necessary to proving the elements of the charged offense is admitted at trial; rather, it acts within its broad discretion to admit evidence that gives the jury a complete picture of the events in question and is not otherwise inadmissible. The photograph showing the contents of defendant's backpack at the time he was arrested, the officer's description of what was found [*14]  during the search, and defendant's statement that he had Ecstasy, all constitute relevant background information helpful to the jury in understanding the circumstances. (See People v. Edwards (1991) 54 Cal.3d 787, 818, 1 Cal. Rptr. 2d 696, 819 P.2d 436; see also People v. Medina (1995) 11 Cal.4th 694, 770, 47 Cal. Rptr. 2d 165, 906 P.2d 2.)

Defendant also contends that the evidence was inadmissible under Evidence Code section 1101, which prohibits evidence of a person's character to prove his or her conduct on a specified occasion. He did not argue this ground for exclusion in the trial court, and has therefore forfeited the argument on appeal. (People v. Partida (2005) 37 Cal.4th 428, 435, 35 Cal. Rptr. 3d 644, 122 P.3d 765 ["A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct."].) But even if we were to consider the argument on the merits, it would fail because Evidence Code section 1101 prohibits evidence of a person's conduct on another occasion (either before or after the charged offense occurred) to prove he or she did something on the occasion in question. (People v. Leon (2015) 61 Cal.4th 569, 597, 189 Cal. Rptr. 3d 703, 352 P.3d 289.) The evidence that defendant had the peach-colored pills at the time of his arrest was evidence of his conduct on the occasion in question and does not implicate the Evidence Code section 1101 proscription. The trial court did not abuse its discretion in admitting evidence regarding the pills the arresting officer initially believed were Ecstasy.
III. DISPOSITION

The judgment is affirmed. [*15] 

Grover, J.

WE CONCUR:

Elia, Acting P. J.

Premo, J.


He was found not guilty of possession for sale of marijuana (§ 11359); possession of marijuana (§ 11357); transportation for sale of marijuana (§ 11360); possession for sale of hydrocodone (§ 11351); transportation for sale of hydrocodone (§ 11352); and possession of concentrated cannabis (§ 11357).

Importantly, the jury was not led to believe that the pills actually were Ecstasy; it was made clear at trial they were not. The criminalist testified that chemical test results showed the pills did not contain a controlled substance, defense counsel established on cross-examination of the arresting officer that his initial belief the pills were Ecstasy was incorrect, and the prosecutor told the jury during closing argument that the pills were not Ecstasy.

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