Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of habeas corpus., APPEAL from the Superior Court of San Bernardino County No. FSB050586.Marsha Slough, Judge.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI Acting P. J.
Defendant Pieter Nievwenhvyzen was convicted of shooting at an occupied motor vehicle (Pen. Code, § 246), making criminal threats against Alice Dickinson (Pen. Code, § 422), and two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The jury also found personal use of a firearm allegations true as to the violation of Penal Code section 422 and the two violations of Penal Code section 245, subdivision (a)(2) (Pen. Code, §§ 12022.5, subd. (a), 12022.5, subd. (d)).
Defendant was found not guilty on two counts of attempted murder, and one count of making criminal threats against Vanessa Britton.
Defendant was sentenced to a total term of nine years four months in state prison. He appeals, contending that the trial court erred in failing to exclude evidence of cell phone text messages between his cell phone and Dickinson’s cell phone at the time the crimes occurred. He also argues that the evidence was insufficient to support the conclusion that he was the person who sent the text messages.
Finding no error, we affirm.
FACTS
Dickinson testified that she met defendant at a nightclub in February 2005. They had a “dating relationship” for about four months.
On June 12, 2005, defendant called Dickinson on her cell phone and threatened her. She told him to leave her alone. There were two other telephone calls between noon and 7:00 p.m. They were cussing and arguing with each other during those calls. There were also cell phone text messages between them. Dickinson stored many of the messages from defendant in her cell phone. She did not save her responses. Defendant’s text messages were eventually recovered from the cell phone and several were presented to the jury as printed exhibits. Under questioning, Dickinson read the text messages to the jury and then testified what her response had been. Several of the messages were threatening, and Dickinson began to believe that defendant was coming after her to harm her.
Around 4:00 p.m., Dickinson called her best friend, Britton, and told her that she and defendant were arguing. Dickinson was crying and scared. Britton left work early and went to Dickinson’s home around 5:10 p.m. At that time, Dickinson believed that defendant had been prowling around her home.
Dickinson came out when Britton arrived at her home: “She wanted to leave. . . . [¶] . . . [¶] She was shaking. She was kind of teary. She was just kind of pale almost too.” Britton drove them to a shop for a cup of coffee and they then drove back towards Dickinson’s home to get some clothes so that Dickinson could spend the night at Britton’s home. On the way back to Dickinson’s home, they saw defendant in a car driven by another woman. They recognized the other woman as defendant’s girlfriend.
Defendant and his girlfriend were both registered owners of the car.
They turned around and followed defendant’s car to a stoplight. Defendant saw Dickinson and had a hard look on his face. Dickinson was terrified. Defendant yelled at her: “‘You’re going to get it, you and your fat friend.’” Defendant told them to pull over but they drove away and Dickinson called 911. A tape of the 911 call was played for the jury.
During this encounter, Britton saw both defendant and Dickinson text messaging each other. Dickinson showed Britton one message that said: “My bald-headed bitch will kill you.”
Britton was afraid because she thought that defendant had brought his gun with him. Both women then saw defendant waving a gun at them as defendant’s car followed them. Britton called a friend who lived near a mall and asked her to call the police and have the officers meet them at the friend’s home.
As they approached the mall, defendant’s car pulled alongside the Britton’s car and defendant fired a shot. The bullet hit the left rear quarter panel of the car. The women briefly followed defendant’s car onto the freeway and then they returned to the friend’s home and met with the police.
Defendant was arrested in Long Beach on June 18, 2005.
DISCUSSION
Defendant argues that the trial court erred in admitting the cell phone messages because the messages were not authenticated, i.e., there was no foundational evidence establishing that defendant was the author of the messages.
All writings must be authenticated before they may be received into evidence. (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.” (§ 1400.)
All further statutory references will be to the Evidence Code unless otherwise indicated.
Section 403 provides that the authenticity of a writing is a preliminary fact and “The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact . . . .” Accordingly, “The trial court has the preliminary, but not the final, authority to determine the question of the existence of the preliminary fact. Unlike in other situations [citation], under Evidence Code section 403, ‘[t]he preliminary fact questions listed in subdivision (a) [of section 403] . . . are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jury’s function to determine the effect and value of the evidence addressed to it. . . . [T]he judge’s function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question. The “question of admissibility . . . merges imperceptibly into the weight of the evidence, if admitted.”’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 466-467.) The trial court’s decision that a writing is admissible is reviewed under an abuse of discretion standard. (Id. at p. 466.)
Defendant relies on People v. Marshall (1996) 13 Cal.4th 799: “[T]he trial court must determine whether the evidence is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence [citation], even if the court personally would disagree [citation].” (Id. at pp. 832-833.) The issue, therefore, is whether there was sufficient evidence to allow the trial court to find that the prosecution had submitted sufficient evidence to allow the court to find, by a preponderance of the evidence, that the question should be presented to the jury.
A document may be authenticated in a variety of ways. The Evidence Code sets forth some specific, but nonexclusive, means of authentication in section 1410 through section 1421. (§ 1410.) In addition, “Circumstantial evidence, content and location are all valid means of authentication [citation].” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
The possible statutory means of authentication here are sections 1413, 1420 and 1421. Under section 1413, “A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness.” In this case, Britton testified that defendant and Dickinson were text messaging each other on their cell phones, and that Britton was close enough to defendant’s car to see him with his cell phone. Thus, Britton saw defendant using his cell phone to send messages to Dickinson. This evidence alone is sufficient to allow the trial court to conclude that defendant was the person sending the text messages which the prosecution proposed to introduce into evidence.
Section 1420 provides: “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.” In this case, text messages were the primary means of argument between the parties. Although only defendant’s messages were presented in evidence, Dickinson testified as to her response to each of defendant’s text messages. Thus, there were ample grounds for the trial court to conclude that the messages sent from defendant’s cell phone were sent by defendant. Defendant suggests that defendant’s girlfriend could have sent the messages. But defendant’s girlfriend was driving, and the references to her in the messages made it clear that they were not authored by her.
In addition, as the People point out, section 1421 refers to the author of the document, not the person who wrote it. There was evidence that defendant was the author of the text messages, even if we accept defendant’s argument that they might have been sent by defendant’s girlfriend while she was driving the car.
Section 1421 states: “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.” Again, there is ample evidence here to allow the trial court to conclude that the text messages referred to facts and issues that were within the particular knowledge of defendant in his relationship with Dickinson.
Finally, as stated above, the nonstatutory means of authentication include consideration of the circumstances and content of the messages. Dickinson’s testimony as to the circumstances and content of the messages was detailed and specific and it also supports the trial court’s preliminary conclusion that the text messages which Dickinson had saved on her cell phone were authentic and were written and sent to her by defendant. As discussed below, the jury apparently agreed with the trial court.
Defendant also points out that someone used his cell phone to send text messages after he was arrested and jailed. But none of those messages related to the charged threats, and even if we agreed with defendant that those text messages were improperly admitted, defendant was not prejudiced in any way by the alleged error. We also note that, even if we reached the question of prejudice, there was testimony that defendant threatened Dickinson by yelling at her when the two cars were stopped at the stoplight.
In a closely related argument, defendant contends that the evidence was insufficient to allow the jury to conclude that he was the person who sent the text messages, even though the messages were sent from his cell phone.
We disagree. As discussed above, there was ample evidence from which a rational jury could conclude that defendant was the person who composed and sent the threatening text messages from his telephone. In addition, Dickinson testified as to other verbal threats made by defendant and Britton testified as to verbal threats to kill her and Dickinson when both cars were stopped at the stoplight. The evidence was clearly sufficient to support defendant’s conviction under Penal Code section 422.
A. The Petition For a Writ of Habeas Corpus
As noted above, defendant has filed a petition for writ of habeas corpus under case No. E044660. By order dated December 20, 2007, we ordered the petition to be considered with this appeal for the sole purpose of determining whether an order to show cause should issue. We have considered the allegations of the petition and the informal response of the People.
In his petition, defendant requests a hearing to determine whether Dickinson tampered with the evidence. Defendant argues that Dickinson deliberately caused her cell phone messages to become unavailable for trial. Although she stored defendant’s text messages on her cell phone, she allowed her own text messages to be deleted as she continued to use the telephone. Thus, her own messages to defendant became unavailable, and Dickinson was allowed to testify at trial as to her responses to defendant’s text messages without the text of her own messages being available.
Defendant cites Dickinson’s testimony at the preliminary hearing. At that time, she testified that she was “having a conversation” with defendant when he threatened her. She did not mention that the conversation was by text message, and she only referred to verbal attacks made when she and defendant were riding in the separate vehicles. Although she was cross-examined at the preliminary hearing, she was only asked if the earlier threats were by telephone. She replied affirmatively. Britton also testified at the hearing, but she only referred to shouted threats made at the stoplight.
From this testimony, defendant concludes that Dickinson “hid the existence of the messages from the prosecution and defense until the messages were no longer available in her cell phone or from Verizon Wireless.” Defendant further argues that had Dickinson “revealed that text messages were involved, the prosecution would have been obligated to preserve the evidence. [Citations.]”
The crimes occurred on June 12, 2005, and the preliminary hearing was held on July 5th. By that time, the messages sent by Dickinson on June 12th may or may not have been deleted from her cell phone, depending on her message volume, and they were on the verge of being deleted by Verizon pursuant to its 30-day retention policy.
No declarations accompany the petition, but even assuming these facts, we are unable to assign a nefarious motive to Dickinson. She answered the questions she was asked at the preliminary hearing, and she apparently mailed her cell phone to the prosecution when she was asked for it. We cannot assume she was aware of the Verizon retention policies, or that she deliberately concealed facts until the records were no longer available from Verizon.
“A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]” (In re Visciotti (1996) 14 Cal.4th 325, 351.) “We emphasize that, because petitioner seeks to overturn a final judgment in a collateral attack, he bears the burden of proof. [Citation.] ‘“For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.”’ [Citation.]” (In re Avena (1996) 12 Cal.4th 694, 710.)
“The petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citation.] ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ [Citation.] We presume the regularity of proceedings that resulted in a final judgment [citation], and, as stated above, the burden is on the petitioner to establish grounds for his release. [Citations.]” (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) Defendant’s allegations in this case are speculative and conclusory. Defendant fails to meet his burden of showing facts which establish a basis for habeas corpus relief.
Defendant also argues, as he did above, that the fact that text messages were sent from his telephone after his arrest “cast[s] substantial doubt on the authorship of all the text messages saved by . . . Dickinson and raise[s] a suspicion that . . . Dickinson may have altered her copy of the messages.” We reject the argument for the reasons stated above, and we note that there is no trial testimony or declaration establishing that it is technically possible to alter a stored incoming text message.
“When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred. [Citations.] To assist the court in determining the petition’s sufficiency, the court may request an informal response from the petitioner’s custodian or the real party in interest. [Citations.]” (People v. Romero (1994) 8 Cal.4th 728, 737 (Romero); see also In re Hochberg (1970) 2 Cal.3d 870, 875.)
In response, the People argue that petitioner has not made a prima facie showing of bad faith destruction of material evidence, discovery violation, or ineffective assistance of counsel. We agree with the People that the petition fails to state a prima facie case for relief under the Duvall and Romero standards. Accordingly, defendant’s request for an order to show cause is denied.
DISPOSITION
The judgment is affirmed.
The request for an order to show cause on the petition for habeas corpus in case No. E044660 is denied.
We concur: KING, J., MILLER, J.