Opinion
D074878
04-09-2020
THE PEOPLE, Plaintiff and Respondent, v. DARREN L. MCDONALD, Defendant and Appellant.
Kent D. Young and Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Gerald A. Engler and Julie L Garland, Assistant Attorneys General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD277404) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed and remanded with directions. Kent D. Young and Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Gerald A. Engler and Julie L Garland, Assistant Attorneys General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Darren L. McDonald of selling a substance falsely represented to be a controlled substance. (Health & Saf. Code, § 11355.) In bifurcated proceedings, he admitted he had suffered two prior prison convictions (Pen. Code, §§ 667.5, subd. (b), 668), and a strike prior conviction (Pen. Code, §§ 667, subds (b)-(i), 1170.12, 668). The court found true allegations that he had suffered four probation denial priors (Pen. Code, § 1203, subd. (e)(4)). The court sentenced him to six years in state prison as follows: on the underlying crime, the low term of two years doubled because of the prior strike conviction plus one year for each of the two prior prison convictions.
McDonald contends the trial court improperly admitted into evidence the following hearsay materials: (1) a spreadsheet listing all incoming and outgoing text messages and telephone calls made from two detectives to McDonald's cell phone, (2) the contents of the text messages; and (3) audio recordings of the telephone conversations between the detectives and McDonald.
After the briefing in this case was completed, the Legislature passed Senate Bill No. 136, effective January 1, 2020. The statute affects the imposition of one-year consecutive terms for the prison prior enhancement under Penal Code section 667.5, subdivision (b). In his supplemental brief McDonald contends the one-year terms imposed for the prison priors in this case are unauthorized after January 1, 2020. The People agree with this contention. We direct the trial court to strike the terms imposed for the enhancements and to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, a San Diego Police Department detective was investigating Internet sales of fake Roxicodone tablets mixed with Fentanyl. The detective testified he used a cell phone to contact a seller, later identified as McDonald, who advertised the sale of "blue T-shirts," which is a slang for Roxicodone, the brand name for Oxycodone. The detective testified, "Based on my training and experience, I believe I was making a narcotics transaction."
On June 5, 2018, a detective asked McDonald by text message if he still had "the blue T-shirts," and McDonald answered affirmatively. The two exchanged more text messages and McDonald later agreed to sell the detective 10 Roxicodone pills for $300. They also agreed to meet at a specific time and place in downtown San Diego.
On June 22, 2018, a second detective took over that drug transaction and communicated with McDonald through text messages and phone calls to arrange the delivery location. The detective testified that shortly before McDonald delivered the drugs, McDonald telephoned him and instructed him to put his payment for the drugs on the floor of McDonald's car. The second detective described the drug delivery: "[McDonald] came over to me. He shook my hand and gave me kind of a chest bump. . . . And he started going around to the driver's side, and I noticed there was a second person in the car. . . . I let [McDonald] get to the door, and then he opened the door and sat in the door. As he sat in the door, he took his foot underneath the door and pointed towards the ground with his toe . . . and then I saw a little bag of pills on the ground." The detective picked up the bag, which contained 10 blue pills, and placed $300 in previously copied bills in the seal of McDonald's car window. When McDonald drove away, police arrested him.
The second detective wore a device that recorded his interaction with McDonald, and the recording was played for the jury. The detective stated in the recording that McDonald had instructed him to put the payment on the floor of McDonald's car. The detective also said that McDonald's passenger was not involved in the drug sale.
Police recovered the pre-recorded bills and two cells phones from McDonald. During a police interview, McDonald said, "I don't want to go to jail. I know a lot of information. I know the guy that gave me [the drugs]." McDonald offered to inform on his drug supplier. The detective told McDonald the police were pursuing Fentanyl cases. McDonald replied that he had just sold the detective Fentanyl pills.
The first detective stated he had documented his interactions with McDonald using "a computer program, also an app[lication] on my phone, which allows me to obtain a secondary phone number to my work telephone number of any area code I want, and then send text messages, pictures, and [I] could also make phone calls, and my caller ID would come up as an alternate phone number. And all of that data is stored into this program." He had used the program "hundreds" of times before. The prosecutor asked the detective whether "this system [was] able to store data correctly and accurately," and whether the document was a fair and accurate depiction of the detective's phone contacts with McDonald's phone number. The detective answered both questions in the affirmative. The second detective likewise testified regarding how the spreadsheet was generated from a computer program or cell phone application, and that the spreadsheet contained a fair and accurate depiction of the text messages he exchanged with McDonald.
Over McDonald's objection, the court admitted into evidence the spreadsheet, which listed the dates and times that the detective had contacted McDonald's phone number, the text messages they exchanged and audio recordings of the telephone conversations between the detectives and McDonald.
A criminalist who tested the purchased pills testified they were not Roxicodone, but "TFMPP," a psychoactive drug similar to Ecstasy.
The defense did not put on any trial evidence. Defense counsel stated her theory of the case in closing argument: "[T]his case is purely circumstantial because there is no evidence that [McDonald] was ever text messaging, there is no evidence that he was ever phone-calling, and there is no evidence that he ever entered into an agreement to sell Oxycodone."
DISCUSSION
I. Evidentiary Challenges
McDonald contends the spreadsheet was hearsay and not admissible under the public records exception to the hearsay rule. He also argues the text messages were inadmissible hearsay-within-hearsay that did not fall within either Evidence Code section 1220's party opponent exception to the hearsay rule or section 1223's co-conspirator testimony exception. He contends the trial court erroneously admitted the audio recordings of the detectives' calls because the conversations contained inadmissible hearsay. Finally, he claims the errors were not harmless because the prosecutor in closing argument relied extensively on the text messages and audio recordings.
Undesignated statutory references are to the Evidence Code.
A trial court's decision to admit or exclude evidence is reviewed for abuse of discretion and will not be disturbed on appeal unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Wall (2017) 3 Cal.5th 1048, 1069.)
"Except as provided by law, hearsay evidence is inadmissible" (§ 1200, subd. (b)). However, out-of-court statements may be admitted for a nonhearsay purpose—i.e., to establish something other than the truth of the matter asserted in the statement. (People v. Hill (1992) 3 Cal.4th 959, 987, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, a statement that is offered to help explain a person's "state of mind and conduct" and is not offered for the truth of the matter asserted, is not hearsay. (Hill, at p. 987; accord, People v. Livingston (2012) 53 Cal.4th 1145, 1162.)
We conclude the trial court did not abuse its discretion by admitting into evidence the spreadsheet, the text messages and the audio recordings because they were not hearsay. 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.' (§ 1200, subd. (a), italics added.) A statement, in turn, is defined as an 'oral or written verbal expression or . . . nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.' (§ 225, italics added.) ' "Person" includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.' (§ 175.) [¶] . . . Simply put, '[t]he Evidence Code does not contemplate that a machine can make a statement.' " (People v. Goldsmith (2014) 59 Cal.4th 258, 274 [addressing photo and video evidence generated from a traffic light camera].) Accordingly, we conclude that the spreadsheet, which was a computer-generated log of the dates and times of the text messages and phone calls the detectives made to McDonald's phone, was not hearsay, and it was not used to prove the truth of the matter stated.
The text messages and the audio recordings were not hearsay because at trial they were not admitted for the truth of the matters asserted; rather, they were used as evidence of McDonald's conduct from which the jury was asked to draw an inference that he sold a substance in lieu of another controlled substance. In People v. Nealy (1991) 228 Cal.App.3d 447, the court stated, "During the course of [a] search warrant's execution, [the police officer] answered the telephone. Over appellant's objection that the content of the conversation was hearsay, [the officer] testified that the caller asked for appellant by her first name and inquired about purchasing a 'dove.' [The officer], who was experienced in the nomenclature used during cocaine sales, indicated that a 'dove' was a '$20 piece of rock cocaine.' Over appellant's hearsay objection, [the officer] also testified that he returned two telephone calls to numbers recorded on [a beeper found in the location.] Both people asked for appellant by her first name and wanted a 'dove.' " (Id. at p. 450.) The appellate court concluded that the requests to purchase narcotics were not hearsay. They were not considered for the truth of the matters asserted, but were admissible as circumstantial evidence to show that the cocaine seized was commercially held, rather than for personal use. Similarly, here the spreadsheet, the text messages and the audio recordings documented messages sent from McDonald's cellphone, showing that he had advertised sale of "blue T-shirts" or Roxicodone, but sold different illicit pills. The text messages and audio recordings of the phone calls were circumstantial evidence that, combined with McDonald's statements to the detective when he was arrested, show McDonald knew he was passing off one drug for another illicit substance.
McDonald's text messages and phone calls were separately admissible under the hearsay exception for a party admission, as McDonald was communicating his willingness and ability to participate in the drug sale, and coordinating the delivery. (§ 1220; People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.)
McDonald claims his identity as the sender of the text messages and as the person who communicated with the detectives on the phone was unverified. However, this objection goes to the weight of the evidence, not its admissibility. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 320-321.) The jury could in any event reasonably infer he was the sender because when arrested, the phone was in his possession, and no evidence points to any other person controlling the cellphone during the relevant period. Moreover, McDonald acted specifically in accord with the contents of the text messages and audio recordings, following the precise instructions regarding the quantity of pills for sale, the color of the pills, and the purchase price arranged by phone. McDonald also followed the directions arranged for the time, manner, and place for the drug delivery. Specifically, McDonald did not directly exchange the drugs and money by hand, but rather by having them placed in the car.
Finally, any error in admitting the challenged evidence was harmless because overwhelming trial evidence supported the convictions: the detectives' testimony, McDonald's actions in conformity with the text messages and phone instructions he gave the second detective, his being arrested with his cell phone and the copied bills in his possession, the fact the chemist's tests showed the drugs were actually TFMPP and not Roxicodone, McDonald's admission he had sold the detective Fentanyl, and McDonald's offer to inform on his drug supplier, which evidenced McDonald's consciousness of guilt. Accordingly, even if the challenged evidence was excluded, it is not reasonably probable McDonald would have received a more favorable result. (People v. Jones (2013) 57 Cal.4th 899, 956; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Senate Bill No. 136
Effective January 1, 2020, imposition of a one-year term for prison prior enhancements such as imposed here are unauthorized. The parties agree McDonald is entitled to the benefit of the new statute. Since there is no dispute about the applicability of the statute, we vacate the sentence and remand the case to the trial court with directions to strike the Penal Code section 667.5, subdivision (b) enhancement and resentence accordingly. (See People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
DISPOSITION
The sentence is vacated, and the case is remanded to the trial court with directions to strike the Penal Code section 667.5 enhancements and resentence as may be appropriate. The court shall amend the abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. IRION, J.