Texted Requests or Directions Are Not Hearsay — [While Court May Consider Hearsay for Authentication Purposes under 104(a),] Authenticating Witness Must Be Produced at Trial If Authentication Challenged

People v. Clark, 2017 Cal. App. Unpub. LEXIS 7686, 2017 WL 5151385 (Cal. Ct. App. Nov. 7, 2017):

After a jury trial, defendant was convicted of receiving stolen property. Among other things, defendant contends the trial court erroneously admitted hearsay evidence from a patrol officer that defendant had "handled and accessed" a cell phone containing incriminating text messages and photos related to the stolen property. We agree the evidence was improperly admitted under state evidentiary law, and the error was prejudicial. We also find a $500 attorney fee not imposed in the oral pronouncement of judgment at sentencing must be stricken. Because we reverse based on the admission of prejudicial hearsay, we do not address defendant's other claims of error.1

I. BACKGROUND

Defendant was charged by information with a single count of felony receiving stolen property. (Pen. Code, § 496, subd. (a).) Before trial, the charge was reduced to a misdemeanor under Proposition 47.

About 9:00 a.m. on October 1, 2013, a woman discovered the catalytic converter was missing from her Dodge truck and notified the police. Approximately seven hours earlier, Brentwood Police Officer Steve Daansen had pulled over a black 2007 Honda [*2]  Accord, which was driven by defendant. Defendant was wearing dark clothing and had her dark brown hair pulled into a ponytail. Daansen discovered two men sleeping in the backseat of the car. One man was wearing a gray coverall jumpsuit that had black grease and soot all over it, and the other was wearing a dark sweat suit.

After obtaining defendant's consent, Daansen searched the vehicle. Under the driver's seat, he found a car jack on the floorboard between the gas pedal and the seat. He also found a brown wig with a ponytail and a ski mask stuffed into the right side of the driver's seat, a variety of tools throughout the vehicle, "gorilla gloves" and latex gloves, a second car jack on the floorboard of the rear passenger side, and various other items, including a bag of paperwork in the front console belonging to one of the men in the backseat.

In the trunk of the vehicle, Daansen discovered more tools, including a pipe cutter and sockets, rags, and a catalytic converter. The catalytic converter was heavy and required two officers to lift it. The catalytic converter also had soot on it, which got on Daansen's hands. Daansen noted the two men in the backseat had soot on their hands, [*3]  but defendant had no soot on hers. White latex gloves discovered in the car also had soot on them, as well as dried blood. One of the men also had a cut on his hand, but defendant did not have any cuts on her hands.

About 5:00 a.m. the same morning, Officers Daansen, Resentez, and Cragin approached Detective Michael Thompson and provided him with 12 cell phones recovered from the vehicle. Thompson examined one of the phones, a Samsung, which contained photographs of catalytic converters. One of the photographs was from September 27 and two were from September 30. Thompson testified at trial to the content of text messages found on the phone. One text message attached to a photo of a catalytic converter sent on September 30 said, "[H]ow much. It's of a pilot. It's of a pilot." Another message, also attached to a photo of a catalytic converter and sent on September 30, said, "U need . . . to come with Honda Accord or a pilot. Looks like this. I cash you out 120." One message containing a photo of a catalytic converter that was not sent said, "A, this is what you need to be looking for this [sic]. You bring."

Thompson was not present when the vehicle was pulled over and searched. Thompson never [*4]  saw defendant or the cell phone in the car, and he had no personal knowledge which phones were recovered from the car or whether defendant touched any of them. He testified patrol officers told him the 12 phones were recovered from the car. Thompson also testified Officer Resentez told him the phone containing photographs of catalytic converters and text messages was attached to a charging cord that was plugged into the center console and he (Resentez) saw defendant "handle and access" the phone during the preliminary stages of the traffic stop. Resentez did not testify at trial. Daansen, who did testify, did not recall seeing defendant "moving any objects around inside the car" before he conducted his search.

In closing arguments, the prosecution argued the jury could infer defendant knew about the catalytic converter because of the text messages found on the cell phone. Specifically, the prosecutor argued: "Every piece of evidence in front of you, you know what the defendant knew. You know that that catalytic converter was stolen, that that catalytic converter was put into a Honda Accord, same Honda Accord coincidentally that was referenced in the text messages. Has to be a Honda [*5]  Accord or Pilot. She's caught in a Honda Accord. You know what she knows." On rebuttal, the prosecution again connected defendant to the cell phone, specifically to Resentez's out-of-court statement she had handled the phone: "There's another thing that you heard throughout [the] defense's argument, that she wasn't there and that you didn't hear from Officer Resentez. Well . . . regarding Officer Resentez, you heard it was told to him that what was told to Sergeant Thompson about the phone, about the fiddling—this is my burden. At the end of this case you go in that deliberation room, this is my burden of proof. I hold you to it. [¶] If Officer Resentez had anything different to say, you can bet your boots you would have heard it. But you didn't. Ask yourself why."

After one day of deliberations, the jury returned a guilty verdict. Defendant was placed on three years of formal probation with 90 days in county jail.

II. DISCUSSION

A. Prejudicial Hearsay

Defendant contends the trial court prejudicially erred under state law by admitting hearsay through Thompson, including (1) a statement by "patrol officers" that 12 phones were recovered from the car and (2) Officer Resentez's statement [*6]  he saw defendant "handle and access" the cell phone containing the photographs of catalytic converters and related text messages.2

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).) "Except as [otherwise] provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) We review a trial court's ruling allowing a particular hearsay statement for abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 132, 158 Cal. Rptr. 3d 797, 303 P.3d 1.)

The statements by unknown patrol officers and Officer Resentez were clearly hearsay. Resentez and the other officers did not testify, but the statements about the cell phone, offered for their truth, were relayed to the jury by Thompson. The admission of such evidence was an abuse of discretion.

The Attorney General concedes the statements by Officer Resentez and unknown patrol officers were hearsay not subject to any exception, and the trial court erred in admitting them, but argues the error was nonetheless harmless. Under the applicable state law harmless error standard, we assess whether "it is reasonably probable that a result more favorable to the appealing party would have been reached [*7]  in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; People v. Seumanu (2015) 61 Cal.4th 1293, 1308, 192 Cal. Rptr. 3d 195, 355 P.3d 384 [Watson standard applies to erroneous admission of hearsay evidence].)

To prove defendant was guilty of receiving stolen property, the prosecution had to prove defendant knew the property was stolen, and defendant had possession of the stolen property. (People v. King (2000) 81 Cal.App.4th 472, 476, 96 Cal. Rptr. 2d 817.) Without the inadmissible hearsay statements about the cell phone, the circumstantial evidence defendant knew about the catalytic converter and knew it was stolen was not particularly strong. The catalytic converter was located in the trunk, not in the body of the car. There was no evidence defendant had seen the catalytic converter, or made any incriminating statements. Defendant did not own the car, and there was no evidence she opened or accessed the trunk.

Though a wig and ski mask were found next to the driver's seat, Officer Daansen testified they were stuffed into the right side of the driver's seat. Thus, they may not have been visible. The evidence also supported a finding the men, not defendant, handled the stolen property. The catalytic converter, the two men's hands, and the latex gloves all had soot on them, but defendant's hands did not. In addition, the latex gloves had dried blood on [*8]  them. One of the men had a cut on his hand, and defendant had no cuts on her hands. While such evidence is consistent with the prosecution's theory defendant was the getaway driver working with the two men, a jury could also reasonably conclude from the same evidence that defendant knew nothing about the stolen property. Moreover, although there were tools throughout the car, including a car jack near the driver's seat, the men in the backseat were covered in soot, and one of them was wearing a jumpsuit. It is possible defendant knew the men had been working on cars, or even that they had a catalytic converter, but not necessarily that it was stolen.

In addition, the wig found in the car was a dark brown wig with a ponytail, like the hairstyle worn by defendant that night. The wig would make a poor disguise for defendant, as it was nearly identical to her own hair. Further, when Daansen pulled the vehicle over, defendant did not attempt to evade the stop, and she immediately consented to a search of the vehicle. Such actions are arguably consistent with a lack of knowledge the vehicle contained stolen property.

In light of the relatively weak circumstantial evidence that defendant knew [*9]  the catalytic converter had been stolen, the cell phone evidence was crucial to the prosecution's case. The text messages seeking catalytic converters, attaching photos, and discussing payment, combined with the hearsay testimony defendant was "handling and accessing" the phone at the time of the stop, were strong evidence she knew the property was stolen. This conclusion is bolstered by the fact the jury asked for a readback of the text messages during their deliberations, suggesting the evidence was important to their verdict. (See People v. Diaz (2014) 227 Cal.App.4th 362, 384, 173 Cal. Rptr. 3d 594 [jury's questions revealing they considered inadmissible evidence in deliberations supported finding error was prejudicial].)

The record also shows Resentez was available to testify, but did not. At one point, the parties stipulated to the fact that Resentez did not remember where the cell phone was and whether he had seen defendant touch it, though the stipulation was withdrawn. Defendant's inability to test Resentez's statement through cross-examination is the very reason for excluding such testimony as unreliable hearsay. (People v. Seumanu, supra, 61 Cal.4th at p. 1307 ["'Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, [*10]  memory, clarity of expression, and veracity, and because the jury (or other trier of fact) is unable to observe the declarant's demeanor.'"].)

The error in admitting the evidence was further compounded by the prosecutor's closing statement, in which he emphasized the text messages on the cell phone showed "what [defendant] knows." (People v. Arcega (1982) 32 Cal.3d 504, 529-531, 186 Cal. Rptr. 94, 651 P.2d 338; People v. Diaz, supra, 227 Cal.App.4th at p. 384 ["A prosecutor's reference to evidence that should not have been presented to the jury increases the potential for prejudice flowing from the error."].) Moreover, the prosecution's remark during rebuttal that "[i]f Officer Resentez had anything different to say, you can bet your boots you would have heard it" implied Resentez would have testified he saw defendant handle and access the phone, when the record in fact suggests Resentez did not recall such facts.3

The Attorney General argues the evidence of defendant's involvement in the theft was strong "in light of her proximity to the scene of the theft, her dark clothing, and her closeness to the items related to the theft (the carjack, wig, and ski mask)." In evaluating prejudice, however, we may consider, "among other things, whether the evidence supporting the existing judgment is so relatively strong, and [*11]  the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, 77 Cal. Rptr. 2d 870, 960 P.2d 1094.) In the absence of evidence connecting the cell phone to defendant, the facts (1) she was pulled over less than half a mile from the scene of the crime,4 (2) was wearing dark clothing, and (3) was near items located in the car that may have been used in the crime do not constitute sufficiently strong evidence she knew the catalytic converter was stolen. Because it is a close case, we conclude it is "reasonably probable that a result more favorable to [defendant] would have been reached" had the inadmissible hearsay statements been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836; see People v. Diaz, supra, 227 Cal.App.4th at p. 385 [acknowledging strong evidence of defendant's guilt but reversing judgment in light of overwhelming indicia of prejudice]; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Reversible Error, § 57, p. 588 [in close case, lesser showing of error will justify reversal].) Accordingly, we must reverse.

B. Attorney Fee

The clerk's minutes reflect defendant must pay a $500 attorney fee, but no such fee was imposed at sentencing. Accordingly, as the Attorney General concedes, [*12]  the fee must be stricken. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 109 Cal. Rptr. 2d 303, 26 P.3d 1040 [when discrepancy exists between oral pronouncement of judgment and minute order or abstract of judgment, the oral pronouncement controls].)

III. DISPOSITION

The judgment is reversed and the $500 attorney fee is stricken.5

 

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Defendant also claims insufficient evidence supported her conviction, the admission of hearsay attributed to one of the officers violated her Sixth Amendment right to confrontation, the court erroneously admitted prejudicial hearsay by the owner of the stolen property, the prosecutor committed misconduct in violation of the Sixth Amendment, and the cumulative effect of the errors deprived her of due process and a fair trial.

The parties disagree whether the text messages found on the phone were hearsay, or nonhearsay requests and directives. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 117, 41 Cal. Rptr. 3d 319, 131 P.3d 400 [alleged accomplice's request for a gun was not hearsay because it was a request, not a statement of fact]; People v. Reyes (1976) 62 Cal.App.3d 53, 67, 132 Cal. Rptr. 848 ["words of direction or authorization do not constitute hearsay since they are not offered to prove the truth of any matter asserted by such words"].) We need not resolve this question, however, because even if the text messages themselves were admissible, their probative value as to defendant's knowledge of the stolen property rested entirely on other hearsay, i.e., Detective Thompson's testimony that officers told him the phone was recovered from the car and Officer Resentez told Thompson he had seen defendant "handle and access" the phone during the stop.

Defendant discusses this fact primarily in connection with her prosecutorial misconduct argument, but we also find it pertinent to our analysis of the prejudicial effect of the hearsay statement, because the prosecution's comment suggested Resentez's statement was true, in violation of the express purpose of the hearsay rule.

The parties have not submitted People's exhibit 1, purportedly a map showing the location of the victim's residence and the traffic stop. Since the location is not disputed by either party, the court finds it unnecessary to review People's exhibit 1.

On August 28, 2017, defendant filed an application to file a supplemental brief, addressing two forfeiture arguments raised by the Attorney General in its respondent's brief. Because the issues are not relevant to our decision, the application is denied.

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